61

treasurer of the county in which the bank was established, to enjoin him from collecting taxes assessed on the shares of the stockholders, payment of which was demanded of the bank under the law, it was held that the rule or principle of unequal valuation of the different classes of property for taxation adopted by the board of assessment was in conflict with the constitution of Ohio, which declares that "laws shall be passed taxing by a unform rule all moneys, credits, investments in bonds, stocks, joint-stock companies, or otherwise, and also all the real and personal property according to its true value in money," and worked manifest injustice to the owners of shares in national banks; and that the bank was therefore entitled to the injunction against the collection of the illegal excess, upon payment of the amount of the tax which was equal to that assessed on other property. That decision was rendered upon a disregard by the assessing officers of a rule prescribed by the constitution of the state, but the same principle must apply when their action in assessing the shares of national banks is in disregard of the act of congress. The plaintiff below did not think proper to resort to this method of obtaining relief, which would have given him all he was entitled to, if in fact his shares were assessed at a greater rate than was assessed on other moneyed capital, because of their illegal overvaluation.

*It only remains to notice the exceptions taken to the exclusion of the testimony offered, that the law of New York required an oath or certificate to be annexed to the assessment roll substantially different from the oath actually annexed, and the claim that the plaintiff has a right to recover the taxes assessed in 1873 and collected in 1874. The exclusion of the testimony as to the alleged defect in the assessment roll was correct, under the stipulation of the parties that the plaintiff would not claim a right to prove any failure of the assessors to take the proper oath. A defect in the form of the oath annexed, if there be one, could have no bearing upon the question at issue. The claim for the taxes assessed in 1873 is open to similar objections to those presented against the claim for the taxes of the other years. If the assignors of the plaintiff had any just grounds of complaint to the assessment as excessive, they should have pursued the course provided by statute for its correction, or resorted to equity to enjoin the collection of the illegal excess, upon payment or tender of the amount due upon what they conceded to be a just valuation. It follows that the judgment of the court below must be affirmed; and it is so ordered.

(121 U. 8. 609)

HARTRANFT, Collector, etc., v. WIEGMANN and another.
(May 2, 1887.)

CUSTOMS DUTIES-WHAT SUBJECT TO-SHELLS.

Shells were imported into the United States, which, before their importation, had their outer layers cleaned off by acid, and their second layers ground off by an emery wheel, so as to expose the brilliant interior. They were sold for ornaments, and also used for buttons, handles to penknives, etc., without, however, any new or distinctive name or use after such treatment. Held, that such shells were not within the sense of section 2504 of the Revised Statutes, (Schedule M, p. 481, 2d Ed.,) which imposes a duty of 35 per cent. ad valorem upon manufactures of shells, but that they fell under section 2505, (page 488,) which exempts from duty "shells of every description not manufactured."

In Error to the Circuit Court of the United States for the Eastern District of Pennsylvania.

Sol. Gen. Jenks, for plaintiff in error. F. P. Prichard, for defendant in

error.

BLATCHFORD, J. This is an action at law, brought in a court of the state of Pennsylvania, and removed into the circuit court of the United States for the Eastern district of Pennsylvania, by the firm of J. H. Wiegmann & Son, against the collector of customs for the district of Philadelphia, to recover

moneys alleged to have been illegally exacted by him as duties on imported merchandise. After a trial before a jury the plaintiffs had a judgment for $55.29, and the defendant has brought a writ of error. The record contains the following statement of the result of the trial:

'The jurors aforesaid, upon their oaths or affirmation aforesaid, respectively do say that they find as follows, to-wit: Plaintiff imported into the United States from London, in December, 1881, and May, 1882, a quantity of shells, on which he paid duties, June 11, 1883. Among these shells were 371 doz. regius murex; 8 doz. green ears; 3 doz. white ears,-valued at $71.68, on which the collector imposed a discriminating duty of 10 per cent., or $7.16, as the products of a country east of the Cape of Good Hope; 12 doz. green snails; 27 doz. Lord's prayers; 12 doz. mottoes; 9 doz. Turk's Caps; 3 doz. magpies; 8 doz. snails; 1 doz. trocus; 16 doz. green ears; 3 doz. white ears,— valued at $125.70, on which the collector imposed a duty of 35 per cent., or $44.09, as manufactures of shells.

"The testimony in regard to these shells was as follows:

"Frederick W. Weigmann: These shells were purchased in London. The merchants there obtain them from all parts of the world. They are cleaned and prepared for market there. The epidermis is first cleaned off, and then the shells are ground or polished for the market. They are cleaned by acid. They are ground on an emery wheel to expose the pearly interior. The purpose of both operations is to fit the shells for market. We sell them for ornaments. We import them for the sea-shore, and sometimes we sell them for buttons, handles to penknives, etc. There is no difference in name and use between the shells ground on the emery wheel and those not ground. The Lord's-prayer shell is sold for the same purpose. There is no new use.'

"Dr. Joseph Leidy: [Regius murex shown witness.] That comes from Panama. [Green ear shown witness.] That is from the Pacific coast. [Two white ears shown witness.] One of these is from the west coast of Africa, and the other from Japan. Most shells have three layers. They have the thin, brown skin; the outside layer, like the common fresh-water mussel; then they have an inner layer, which is very brilliant. Very frequently the water is sufficient to wear off the skin, and they show the dull layer on the outside. By artificial means that opaque whitish layer is ground off by means of a wheel, and the inner layer is exposed, which presents that inner pearly appearance. [Samples shown witness.] These shells have had the outer layer ground off so as to exhibit the beautiful inner layer. That has been done by the application of a wheel, and afterwards by polishing. Question. There is something here called the "Lord's prayer.' I do not suppose you know it by that name, but please tell us about it. Answer. Well, I understand its nature. The shell happens to be of the kind which is very frequently imported and used as an ornament without any alteration whatever. The outer covering was taken off in the shape of letters, by first covering the letters with wax or grease, and then covering that with lime, having in the mean time eaten out the letters by acid or by etching. The object of taking off the epidermis is simply to show the internal beauty, for the purpose of ornament; and the object of taking off the second layer is the same, simply for the purpose of ornament.'

The jury find that the regius murex, green ears, and white ears are products of countries west of the Cape of Good Hope, as above testified, and that the discriminating duty on them amounted to $7.16, which, with interest to October 5, 1883, amounts to $7.72. The jury find that the green snails, Turk's caps, magpies, snails, trocus, green ears, and white ears have been ground upon an emery wheel in the manner and for the purpose described in the above testimony; that the duty collected on them as manufactures of shells amounted to $25.98, which, with interest to October 5, 1883, amounts to $28.03. The jury also find that the Lord's prayers and mottoes have been

813

etched with acid, in the manner and for the purpose described in the above testimony; that the duty collected on them as manufactures of shells amounted to $18.11, which, with interest to October 5, 1883, amounts to $19.54.

"RECAPITULATION.

"Discriminating duty, Duty on ground shells, Duty on etched shells,

$ 7 72 28.03 19 54

$55 29

"And the court reserved the following points: (1) If the court should be of opinion that both the shells ground on an emery wheel and the shells etched with acids, in the manner found by the jury, were not liable to duty as 'manufactures of shells,' but were entitled to be admitted free, as 'shells unmanufactured,' then judgment to be entered in favor of the plaintiff for fifty-five dollars and twenty-nine cents. (2) If the court should be of opinion that the shells etched by acids, in the manner found by the jury, were liable to duty as manufactures of shells,' but that the shells ground on an emery wheel, as found by the jury, were not so liable, then judgment to be entered in favor of the plaintiff for thirty-five dollars and seventy-five cents. (3) If the court should be of opinion that both the shells ground on an emery wheel and those etched by acids were liable to duty as manufactures of shells,' then judgment to be entered for plaintiff for seven dollars and seventy-two cents only, being the amount of discriminating duty on shells found by the jury to have been imported from countries west of the Cape of Good Hope."

·

The defendant then moved for a new trial, in refusing to grant which the court held " that, in order to render the shells subject to duty as manufactures of shells,' something more must be done than simply to remove the outer surface either by acids or mechanical means, and that, while the shells retained their special form and character, they could not be classified as manufactures of shells.'"

6

The finding of the jury is not in the usual form of a special verdict, but the jury make certain findings, and the statement is that the court reserves the three points stated; and each point reserved is stated in one and the same form, namely, that if the court should be of opinion that the shells are dutiable thus and so, or are free from duty, then judgment is to be entered for the plaintiff for a specified sum. As the circuit court, and the counsel for both parties in that court, appear to have treated the findings and the reservation as amounting to either a special verdict or an agreed statement of facts, we are disposed to overlook the irregularity, and to consider the case on its merits. Mumford v. Wardwell, 6 Wall. 423.

It is contended, on the part of the government, that the shells were dutiable under the following provision of section 2504 of the Revised Statutes, (Schedule M, p. 481, 2d Ed.:) "Shells, manufactures of, thirty-five per centum ad valorem." On the other side, it is contended that the articles were free, under the following provision of section 2505, (page 488, 2d Ed.,) in regard to articles exempt from duty: "Shells of every description, not manufactured."

The collector levied a duty upon the shells of 35 per centum. The circuit court held that they were exempt from duty. The question is whether cleaning off the outer layer of the shell by acid, and then grinding off the second layer by an emery wheel, so as to expose the brilliant inner layer, is a manufacture of the shell; the object of these manipulations being simply for the purpose of ornament, and some of the shells being afterwards etched by acids, so as to produce inscriptions upon them. It appears that the shells in question were to be sold for ornaments, but that shells of these descriptions have also a use to be made into buttons and handles of penknives; and that there is no difference in name and use between the shells ground on the emery wheel

and those not ground. It is contended by the government that shells prepared by the mechanical or chemical means stated in the record, for ultimate use, are shells manufactured, or manufactures of shells, within the meaning of the statute.

By the act of March 2, 1861, c. 68, § 22, (12 St. 192,) a duty of 30 per cent. ad valorem was imposed on "manufactures of shells," and by the act of July 14, 1862, c. 163, § 13, (12 St. 557,) that duty was increased to 35 per cent. ad valorem. By the act of July 14, 1870, c. 255, § 22, (16 St. 268,) "shells of every description, not manufactured," were exempted from duty. These enactments were carried into the Revised Statutes.

It is stated in the brief on the part of the government that the interpretation of these provisions by the treasury department has not been uniform. In April, 1872, it ruled that "shells which have merely been cleaned and polished with acids cannot fairly be classified as manufactures of shells." In July, 1876, it ruled that shells engraved by the application of acids were manufactured shells. In August, 1877, it ruled that where the manufacture of the shells consisted merely in polishing them, and removing, by grinding or otherwise, a portion of the surface, the shells were exempt from duty, because their character and condition had not been materially changed, and they still preserved their identy as shells. At a later date, in regard to shells that had been cleaned by the use of the emery wheel and buffer, and shells which had been polished by the use of acids, it held that they were dutiable at the rate of 35 per centum, as manufactures of shells, on the ground that they had been advanced, by cleaning, grinding, and otherwise, to a condition beyond that of crude, unmanufactured shells.

*We are of opinion that the shells in question here were not manufactured, and were not manufactures of shells, within the sense of the statute imposing a duty of 35 per centum upon such manufactures, but were shells not manufactured, and fell under that designation in the free list. They were still shells. They had not been manufactured into a new and different article, having a distinctive name, character, or use from that of a shell. The application of labor to an article, either by hand or by mechanism, does not make the article necessarily a manufactured article, within the meaning of that term as used in the tariff laws. Washing and scouring wool does not make the resulting wool a manufacture of wool. Cleaning and ginning cotton does not make the resulting cotton a manufacture of cotton. In Schedule M of section 2504 of the Revised Statutes (page 475, 2d Ed.) a duty of 30 per cent. ad valorem is imposed on "coral, cut or manufactured;" and in section 2505 (page 484) "coral, marine, unmanufactured," is made exempt from duty. These provisions clearly imply that, but for the special provision imposing the duty on cut coral, it would not be regarded as a manufactured article, although labor was employed in cutting it. In Frazee v. Moffitt, 20 Blatchf. 267, it was held that hay pressed into bales, ready for market, was not a manufactured article, though labor had been bestowed in cutting and drying the grass and baling the hay. In Lawrence v. Allen, 7 How. 785, it was held that India-rubber shoes, made in Brazil, by simply allowing the sap of the Indiarubber tree to harden upon a mould, were a manufactured article, because it was capable of use in that shape as a shoe, and had been put into a new form capable of use and designed to be used in such new form. In U. S v. Potts, 5 Cranch, 284, round copper plates turned up and raised at the edges from four to five inches by the application of labor, to fit them for subsequent use in the manufacture of copper vessels, but which were still bought by the pound as copper for use in making copper vessels, were held not to be manufactured copper. In the case of U. S. v. Wilson, 1 Hunt, Mer. Mag. 167,, Judge BETTS held that marble which had been cut into blocks for the convenience of transportation was not manufactured marble, but was free from duty, as being unmanufactured.

We are of opinion that the decision of the circuit court was correct. But, if the question were one of doubt, the doubt would be resolved in favor of the importer, "as duties are never imposed on the citizen upon vague or doubtful interpretations.' "Powers v. Barney, 5 Blatchf. 202; U. S. v. Isham, 17 Wall. 496, 504; Gurr v. Scudds, 11 Exch. 190, 191; Adams v. Bancroft, 3 Sum. 384.

Judgment affirmed.

(121 U. S. 616)

HARTRANFT, Collector, etc., v. WINTERS.
(May 2, 1887.)

In Error to the Circuit Court of the United States for the Eastern District of Pennsylvania.

BLATCHFORD, J. This is an action by Anton Winters, brought in a state court of Pennsylvania, and removed into the circuit court of the United States for the Eastern district of Pennsylvania, against the collector of customs for the district of Philadelphia. The proceedings in it, and the questions arising, are in all respects the same as those in the case of Hartranft v. Wiegmann, ante, 1240, (just decided ;) the only difference being that in this case there were no shells called "green snails" or mottoes" or "Turk's caps" or "magpies or "trocus," and that there were shells called "rose murex, ""motto cowries,' "banded snails," "Japan ears," "turbo shells," "red ears," and "pearl snails."

The same conclusion is arrived at as in the Wiegmann Case, and the judgment of the circuit court is affirmed.

(122 U. S. 154)

WILLIAMS v. Board of SUP'RS OF THE COUNTY OF ALBANY.1
(May 23, 1887.)

1. TAXATION-DISCRIMINATION-NATIONAL BANK STOCK.

A county assessor assessed the stock of all the banks in the county, both state and national, at the par value. The actual value of the shares of the National Albany Exchange Bank was from 25 to 30 per cent. above par. The actual value of the shares of all the banks in the county, with one exception, was above par, varying, in that respect, from 10 to over 100 per cent. In a suit by a shareholder of the national bank referred to, to recover the amount paid upon his stock on the ground of discrimination, held that, the discrimination not being designed by the assessor, the assessment-considering the nature of the property, the fluctuations in value to which it was subject, and the fact that the method was applied to all banks, state and national-came as nearly as practicable to securing between them equality and uniformity of taxation, and was valid; following Stanley v. Supervisors Albany Co., ante, 1234.

2. CONSTITUTIONAL LAW-LEGISLATIVE POWER-REMEDIAL STATUTE-TAXATION.

Where, by statute, the assessors are required to complete the assessment roll by a certain date, and to make oath to it in a prescribed form, and it is essential that these requirements should be observed to enable notices to be published specifying a time when they would meet for the purpose of reviewing the assessments on the application of any person aggrieved, defects arising through the non-completion of the assessment roll by the specified date, and departure from the prescribed form of oath, may be cured by remedial statute subsequently enacted, providing the right of the tax-payers aggrieved by the assessment to have their objections passed upon be saved.

In Error to the Circuit Court of the United States for the Northern District of New York.

Matthew Hale, for plaintiff in error. S. W. Rosendale and W. H. Peckham, for defendant in error.

FIELD, J. "This is an action to recover the amount of certain taxes alleged to have been illegally collected from the plaintiff and others on sundry shares of stock held by them in the National Albany Exchange Bank, in the city of Albany, New York, and paid into the treasury of the county. The stock

1Affirming 21 Fed. Rep. 99.