Netherclift v. Robertson

• Decision Date: 19 June 1886
• Citation: 27 F. 737
• Parties: NETHERCLIFT and others v. ROBERTSON.
• Court: U.S. District Court — Southern District of New York

27 F. 737

NETHERCLIFT and others v. ROBERTSON.

United States Circuit Court, S.D. New York.

June 19, 1886

Henry E. Tremain, (Charles Currie was with him on the brief,) for plaintiffs.

Stephen A. Walker, U.S. Atty., and Thomas Greenwood, Asst. U.S Atty., for defendant.

In October, 1884, the plaintiffs imported from Puerta Plata, in the Dominican republic, two cargoes of sugar and molasses. The collector assessed duties thereon pursuant to the provisions of Schedule E of the tariff act of 1883. 22 St. at Large, 488 502. The plaintiffs protested, insisting that their importations should have been admitted free, under the stipulations of the treaty between the United States and the Dominican republic, concluded February 8, 1867. The ninth article of that treaty is as follows:

'No higher or other duty shall be imposed on the importation into the United States of any article the growth, produce, or manufacture of the Dominican republic, or of her fisheries; and no higher or other duty shall be imposed on the importation into the Dominican republic of any article the growth, produce, or manufacture of the United States, or their fisheries, than are or shall be payable on the like articles the growth, produce, or manufacture of any other foreign country, or its fisheries.' 15 St. at Large, 478.

Subsequently to the date of this treaty, congress, by various enactments, imposed duties on all sugar and molasses imported from foreign countries. On the thirtieth of January, 1875, a convention was concluded between the king of the Hawaiian Islands and the United States, by the first article of which it was stipulated that 'for and in consideration of the rights and privileges granted by his majesty, the king of the Hawaiian Islands, in the next succeeding article of this convention, and as an equivalent therefor, the United States of America hereby agree to admit all the articles named in the following schedule, the same being the growth and manufacture or produce of the Hawaiian Islands, into all the ports of the United States free of duty. ' The schedule which followed contained, among other things, 'muscovado, brown, and all other unrefined sugar, meaning hereby the grades of sugar heretofore commonly imported from the Hawaiian Islands, and now known in the markets of San Francisco and Portland as 'Sandwich Island sugar,' syrups of sugar-cane, melado, and molasses. ' It was provided by the fifth article that the convention should take effect as soon as approved and ratified, but not until a law to carry it into operation should be passed by the congress of the United States. The convention was ratified in 1875. 19 St. at Large, 625. On the fifteenth of August, 1876, congress passed the contemplated act, which provides, in substance, that whenever the president of the United States shall receive satisfactory evidence that the legislature of the Hawaiian Islands has passed laws to give full effect to the provisions of the convention, he is authorized to issue his proclamation declaring that he has such evidence, and from the date of such proclamation the articles mentioned in the schedule before named-- sugar, molasses, etc.-- shall be introduced into the United States free of duty. 19 St. at Large, 200. On the ninth of September, 1876, the president issued his proclamation, declaring that he had received the evidence required by the said act. 19 St. at Large, 666. In the tariff act of 1883-- the act under which the plaintiff's importations were classified--congress declares that 'there shall be levied, collected, and paid, on all articles imported from foreign countries, and mentioned in the schedules herein contained, the rates of duty which are, by the schedules, respectively prescribed. ' Schedule E provides for all sugars and molasses of designated grades.

The eleventh section of the act of 1883 is as follows:

'Nothing in this act shall in any way change or impair the force or effect of any treaty between the United States and any other government, or any laws passed in pursuance of or for the execution of any such treaty, so long as such treaty shall remain in force in respect of the subjects embraced in this act; but whenever any such treaty, so far as the same respects said subjects, shall expire or be otherwise terminated, the provisions of this act shall be in force in all respects in the same manner and to the same extent as if no such treaty had existed at the time of the passage thereof.' 22 St. at Large, 525.

The plaintiffs proved that the sugar and molasses imported by them would have been admitted free if they had come from the Hawaiian Islands. The defendant offered no evidence.

COXE J.

In Bartram v. Robertson, 21 Blatchf. 211, S.C. 15 F. 212 this court decided that congress has power to annul a treaty, so far as it operates as a rule of municipal law; that the provisions of the Danish treaty, (8 St. at Large, 340,) which are similar to those now in question, and which, it was argued, admitted the productions of Denmark on the same terms as those of the Hawaiian Islands, could...