United States v. Hopewell

• Decision Date: 15 September 1892
• Parties: UNITED STATES v. HOPEWELL et al.
• Court: U.S. Court of Appeals — First Circuit

51 F. 798

UNITED STATES v. HOPEWELL et al.

United States Court of Appeals, First Circuit.

September 15, 1892

Frank D. Allen, U.S. Atty., and Henry A. Wyman, Asst. U.S. Atty.

Josiah P. Tucker, for appellees.

Before GRAY, Circuit Justice, PUTNAM, Circuit Judge, and NELSON District Judge.

GRAY Circuit Justice.

This was a petition to the circuit court by John Hopewell, Jr. Olindus F. Kendall, and Frank Hopewell, representing that they were 'partners in trade, doing business in Boston under the firm name of L. C. Chase & Co.,' and signed 'L. C. Chase & Co., Petitioners, by J. P. Tucker Attorney,' praying for a review, under the act of June 10, 1890, c. 407, Sec. 15, of a decision of the board of general appraisers, affirming a decision of the collector of the port of Boston and Charlestown, assessing on two bales of goat's hair, imported by the petitioners, a duty at the rate of 12 cents a pound, under paragraphs 377 and 384 of Schedule K of the tariff act of October 1, 1890, c. 1244, imposing such a duty on 'hair of the camel, goat, alpaca, and other like animals. ' The petitioners, having duly protested against the assessment, contended that their goods should have been admitted free, under paragraph 604 of the free list, as 'hair of horse, cattle, or other animals, ' 'not specially provided for in this act.'

The board of general appraisers, pursuant to an order of the court, made a return of the record and evidence, together with a certified statement of facts involved, and of their decision thereon, by which it appeared that the appraisers found 'that the article in question is common goat hair, and that it is unfit for combing purposes,' and that their decision that it was duly assessed was based on their former decision in a like case. General Appraisers' Decisions, Nos. 280, 691. Under another order of the court, referring the case to one of those appraisers to take and return such further evidence as might be offered by the petitioners or by the collector, he returned that the only evidence offered by either party was a stipulation, which was signed by counsel, and was as follows:

'If material, it is agreed that wool known as Leicester, Cotswold, Lincolnshire, Down combing wools, Canada long wools, and hair of the camel and alpaca, are all fit, adapted, and used for combing purposes; that there are kinds or breeds of goat, like the Cashmere and Angora, which produce hair fit and adapted for combing purposes; that the goat hair in this case is similar in its use and adaptability to use to the hair of horses and cattle.'

The circuit court, for the reason stated in the opinion of COLT, J., printed in 48 F. 630, adjudged that the decision of the board of general appraisers be reversed, and that the sums paid by the petitioners for duties be refunded. Within 30 days after that judgment the United States, 'by the collector of the port of Boston and Charlestown,' appealed to this court; and the petition to the circuit court for the allowance of the appeal, as well as the assignment of errors, was signed by the district attorney of the United States, as 'attorney for the collector.' The circuit court thereupon allowed the appeal, and issued a citation to 'L. C. Chase & Co., a firm doing business in Boston, in the state and district of Massachusetts, in which firm John Hopewell, Jr., O. F. Kendall, and Frank Hopewell are the partners;' and sufficient service of this citation was acknowledged by the attorney for the appellees.

By sections 14 and 15 of the act of June 10, 1890, c. 407, entitled 'An act to simplify the laws in relation to the collection of the revenues,' the question of the rate and amount of duties chargeable on imported goods, which might previously have been tried by suit against the collector, is to be tried by appeal from his decision to the board of general appraisers constituted by that act; the decision of that board may be reviewed by the circuit court on application of either party; and that court, when it is of opinion that the question involved is of such importance as to require it, may allow an appeal from its decision to the supreme court of the United States, 'but an appeal shall be allowed on the part of the United States whenever the attorney general shall apply for it within thirty days after the rendition of such decision. ' 26 St. 131, 137, 138. But since the judiciary act of March 3, 1891, c. 517, took effect, the case being one 'arising under the revenue laws,' the appeal from the judgment of the circuit court lies to this court. 26 St.p. 828; U.S. v. Hill, 123 U.S. 681, 8 S.Ct. 308; Lau Ow Bew v. U.S., 144 U.S. 47, 12 S.Ct. 517; Warehouse Co. v. Collector of Customs, 49 F. 561.

In the case at bar the appeal of the United States from the judgment of the circuit court was irregularly taken in the name of the collector of the port. It should have been in the name of the United States, and, as the record does not show that the circuit court was of opinion that the question involved was of sufficient importance to require an appeal, it could be allowed only on the application of the attorney general of the United States. But, the irregularity having been suggested by this court at the hearing, a motion in writing has since been made by the district attorney 'for and on behalf of the attorney general of the United States,' to amend the petition for appeal and the assignment of errors, by striking out the statement that the appeal was taken by the collector, by stating that it was 'upon the application of the attorney general of the United States,' and by substituting, for the original signature, the following: 'William H. H. Miller, Attorney General of the United States, by Frank D. Allen, U.S. Attorney District of Massachusetts. ' And the appellees, in open court, have consented to the amendment, and have admitted that the appeal was in fact taken by direction of the attorney general, and that this fact was brought to the attention of the circuit court before it allowed the appeal. By the appeal taken in behalf of the United States by their district attorney, this court acquired jurisdiction of the case, and has power to allow amendments in regard to the officer by whom or in whose name the appeal was claimed. When any question is made as to the allowance of such an amendment, the usual and proper practice is to remand the case to the circuit court to deal with that question. But when, as in this case, the parties agree to the amendment, and to facts which justify and require it, the amendment may be made in the appellate court. Rev. St. Secs. 954, 1005; Fletcher v. Peck, 6 Cranch, 87, 127; Kennedy v. Bank, 8 How. 586, 611; Gates v. Goodloe, 101 U.S. 612; Bowden v. Johnson, 107 U.S. 251, 2 S.Ct. 246. The record is therefore to be amended as prayed for.

There was also an irregularity in addressing the citation to the firm in which the appellees were partners, when it should have been addressed to the appellees individually. But this mistake, if objected to, might have been cured by a new citation in proper form. Moore v. Simonds, 100 U.S. 145; Estis v. Trabue, 128 U.S. 225, 9 S.Ct. 58. The appellees having appeared generally in this court, without taking any objection, this irregularity becomes immaterial.

The duties in this case were assessed under paragraph 384 of Schedule K of the tariff act of 1890, which imposes a duty of 12 cents a pound 'upon all wools or hair of the second class,' described in paragraph 377, as follows 'Class two, that is to say, Leicester, Cotswold, Lincolnshire, Down combing wools, Canada long wools, or other like combing wools of English blood, and usually known by the terms herein used, and also hair of the camel, goat, alpaca, and other like animals.' 26 St.pp. 594, 595. The question is whether, as held by the board of general appraisers, the article imported by the appellees came within those paragraphs, as 'hair of the goat;' or whether, as held by the circuit court, it fell within paragraph 604 of the free list, which exempts from duty 'hair of horses, cattle, and other animals, cleaned or uncleaned, drawn or undrawn, but unmanufactured, not specially provided for in this act. ' Id. p. 606. The facts found in the record, and on which this case must be decided, are that the wools specified in class 2, as well as the hair of the camel and of the alpaca, are all fit, adapted, and used for combing purposes; that there are breeds of goat, such as the Cashmere and the Angora, which produce hair fit...