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bales there examined was, and that the other 3 were not, among the 10 bales in controversy; and that this 1 bale belonged to one of the plantation lots containing 10 bales, and was the bale upon which the importer paid duty at the rate of 75 cents a pound upon 125 pounds thereof and 35 cents a pound upon 54 pounds thereof. * Other testimony was introduced to show the actual character of the tobacco.

On the trial, after all the testimony on both sides had been introduced, the collector moved the court to direct a verdict in his favor on the ground that the importers had not established facts sufficient to constitute a cause of action, which motion was denied. The collector excepted to this ruling, and asked to be allowed to go to the jury generally upon the issues of the case, and upon the court's refusal of this request the collector asked that the case might go to the jury upon the question whether there had been one package examined of the bales in controversy, claiming that, although there was not 1 bale in 10 of the entire invoice sent to the public stores, yet, as there were only 10 bales in question, representing 4 plantation rots, and as 4 bales representing those 10 bales had been actually examined at the public stores, there was a sufficient compliance with the statute. The court refused to submit this question to the jury, to which refusal the collector excepted. The importers then moved for the direction of a verdict in their favor, and the court granted the motion, and directed a verdict for them for the sum of $708.12, to which action of the court the collector excepted. Judgment in favor of the importers, for the said amount, was duly entered on June 20, 1890, and subsequently the collector brought the case to this court by a writ of error.

The protest filed by the importers contained, among other things, an allegation hat there had been no legal appraisal of the tobacco, for the reason that the provisions of section 2939 of the Revised Statutes had not been complied with. That section is as follows:

"The collector of the port of New York shall not, under any circumstances, direct to be sent for examination and appraisement less than one package of every invoice, and one package at least out of every ten packages of merchandise, and a greater number should he, or the appraiser, or any assistant appraiser, deem it necessary. When the secretary of the treasury, however, from the character and description of the merchandise, may be of the opinion that the*examination of a less proportion of packages will amply protect the revenue, he may, by special regulation, direct a less number of packages to be examined."

It seems, from the nature of a part of the evidence introduced on the trial, that the importers contended in the court below that the effect of the examination by the cus

toms officers of less than one bale in ten of the invoice had the effect of invalidating the assessment of the higher tax upon the tobacco, provided for in paragraph 246 of the tariff act of 1883, and made it dutiable at the lower rate, as prescribed in para graph 247 of that act.

The same ground of contention is presented in this court, the collector asserting that the provisions of section 2939, Rev. St., are in the nature of instructions to the officers of the customs, intended solely for the protection of the revenue, and, therefore, that no benefit from a violation of the statute could be taken by an importer. The importers insist, on the other hand, that inasmuch as the examination may have the effect of fixing a higher duty upon a given invoice of tobacco than that collectible upon leaf tobacco of the kind more extensively imported, the importer might be injured if the characteristics of the tobacco necessary to justify the exaction of the higher tax were determined by an examination different from that prescribed by section 2939, which enactment, therefore, they believe to be intended as well for the protection of the importer as the government, and hence mandatory. Collateral to the argument upon this point is the discussion by the parties as to whether the incident of the actual examination in this case of one of the ten bales in controversy, and the examination of one bale from each of four plantation lots represented by the ten bales, was equivalent to a substantial compliance with the statute.

Whether a statute is mandatory or directory is frequently a question of a great deal of importance to taxpayers, for the reason that errors in taxation are often susceptible of correction only by pointing to the nonobservance of some law which, strictly followed by an officer, might have pre vented the errors complained of. The acts of assessors, for instance,* in matters relating to general municipal and state taxation, are, if legally performed, usually conclusive upon the taxpayer, unless some means of relief has been provided by the legislature, and often this relief is narrow. Very rarely, if ever, is there power in the judiciary to enter into all the questions affecting the legality of a charge for taxes, and therefore, in general, a statute, even though not in express terms mandatory, is treated as being so if its literal observance might afford sub. stantial protection to the party complaining, and a failure of such observance by an officer is considered to render his act void. French v. Edwards, 13 Wall. 506, 511.

In the case of customs duties, however, a party dissatisfied with the classification of imports may apply to the courts to have examined and reviewed everything involv. ing the legality of the demand which has been made upon him by a collector, and statutes containing directions to government

officials, as to the manner in which they shall become informed of the dutiable character of merchandise, afford importers an altogether different kind of protection from that just mentioned. At most, a neglect of such provisions operates to no greater disadvantage to a party than to subject him to the necessity of bringing an action which he might not have felt impelled to bring if the tax had been ascertained in the manner prescribed. The unlawful demand of the duty does not conclude his rights, but, at the most, merely lays upon him the inconvenience of going before a tribunal in which those rights will be declared.

An examination of one package in ten of the merchandise might have shown to the satisfaction of the collector that the importation was of the character the importer claim. ed it to be; the examination of one package in fourteen may have given the collector a different impression, to the disadvantage of the importer. But the proceedings do not necessarily end with the collector's decision, and the importer's rights are not finally fixed until the character of the goods has been found by the court.

The protection of the convenience only of a taxpayer is not of such a vital nature as to authorize a court to treat a statute* primarily directed to public officers for their guidance, and the substantial protection of the government, as mandatory, and to consider official acts not in strict conformity with the statute as void. The protection must be substantial, and must be intended as a guard of rights or property. Cooley, Tax'n, pp. 215, 216.

In this view, it is apparent that the usual presumption of a legal collection is not changed by the circumstances of this case, and that the burden is upon the importer of overcoming this presumption by proof that the exaction of the duties was unlawful.

If the dutiable character of the goods in the present case were to be determined by value, the question of the effect of section 2939 might be of consequence to the importers, since in that event the value fixed by the appraisers, under section 2930, Rev. St., relating to appeals from appraisements, would be final, unless the appraisement were in some respect unlawful. The question of the value of the goods could not be raised in an action against the collector, and an attack upon the legality of the appraisement, for the purpose of having it declared illegal, and the goods therefore declared dutiable at the value stated in the invoice, would be the only means of redress by a court for an illegal exaction of duties based upon an erroneous valuation. The duty chargeable upon leaf tobacco was not fixed with reference to its value, but to certain prescribed characteristics of size, fineness of texture, and weight. It seems to have been the practice, under instructions issued by the secretary of the treasury, for the appraiser, in

addition to ascertaining the value of goods, to ascertain the dutiable qualities of tobacco imported, and this act of the appraiser seems usually to be denominated an appraisement. At least, that word is so used by counsel on both sides of this case. Unless, however, this act of the appraiser is an appraisement in the sense of being an ascertainment of value, it would not be just to an importer to regard it as an appraisement in this kind of a case.

Section 3011, Rev. St., provided that any person who had made payment under protest, and in order to obtain possession * of merchandise imported for him, to any collector, or person acting as collector, of any money as duties, when such amount of duties was not, or was not wholly, authorized by law, might maintain an action in the nature of an action at law, which should be triable by jury, to ascertain the validity of such demand and payment of duties, and to recover back any excess so paid. This statute is general in its terms, and is subject to but one qualification, namely, that in the action provided for no question can be raised as to the value of the merchandise, except to show that because of some illegality in the appraisement the value fixed by the appraiser should not be taken as the basis of the duties, but that the duties should therefore be fixed by the invoice.

In the case of Hilton v. Merritt, 110 U. S. 97, 3 Sup. Ct. 548, Mr. Justice Woods said, in delivering the opinion of the court:

"Considering the acts of congress as establishing a system, and giving force to all the sections, its plain and obvious meaning is that the appraisement of the customs officers shall be final, but all other questions relative to the rate and amount of duties may, after the importer has taken the prescribed steps, be reviewed in an action at law to recover duties unlawfully exacted. Questions frequently arise whether an enumerated article belongs to one section or another. determining the rate and amount of duties, the value of the merchandise is one factor, the question of the schedule it properly falls under is another. Questions relating to the classification of imports, and consequently to the rate and amount of duty, are open to review in an action at law."

* In

A common instance of the recognition of the right of a party to review, in an action at law, a question of the classification of imports, is to be found in cases where there is no dispute as to the character of the merchandise, but the contest is upon the name properly applicable to it, in the meaning of a statute. Many such cases are cited in Cadwalader v. Zeh, 151 U. S. 171, 176, 14 Sup. Ct. 288, which case is itself a similar instance. In such controversies the question to be answered is what the article is. The question is the same where there is no dispute over terms, but as to the qualities or characteristics necessary to bring the article'

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within the statutory description. In either case the matter to be decided is the portion of the act under which the article properly falls, and in all cases, eliminating only the question of the value of the merchandise, the classification may be reviewed in an action at law.

We are thus brought to the question of the actual character of the tobacco, with reference to the paragraph under which it was properly dutiable. This question is raised by the following allegation of the protest: "We protest against the estimate of quality of the different grades of said tobacco as made by the appraiser, and the assessment of 75 cents per pound, as made by you, as unlawful, and as not in accordance with the provisions of schedule F of the act of March 3, 1883, claiming said tobacco to be dutiable under said provision at only 35 cents per pound, because eighty-five per cent. of said tobacco is not of the requisite size and of the necessary fineness to be suitable for wrappers, and less than one hundred leaves are required to weigh a pound."

The provisions of schedule F of the tariff act of 1883, under which the duties in this case were exacted, were as follows:

"246. Leaf tobacco of which eighty-five per cent. is of the requisite size and of the necessary fineness of texture to be suitable for wrappers, and of which more than one hundred leaves are required to weigh a pound, if not stemmed, seventy-five cents per pound; if stemmed, one dollar per pound.

"247. All other tobacco in leaf, unmanufactured and not stemmed, thirty-five cents per pound."

Diverse views were entertained by the parties concerning the meaning of paragraph 246, the most important of which had reference to the question whether the bale was to be treated as the unit to which the percentage test was to be applied, or whether the characteristics of the tobacco were to be ascertained by examining a number of representative hands (which are small bundles of leaves fastened together), and if certain of the examined hands should be found to be dutiable at one rate, and the others at a different, the bale should be assumed to contain tobacco of two different grades, and the duties laid accordingly.

mixed. If the first four hands drawn should be entirely uniform, we probably would not draw any more, and in any event we would be hardly likely to draw more than ten hands."

If, then, a bale, or other separate and concrete quantity of leaf tobacco, contained only leaves of such uniformity of character as to be, in their collective form, of one class, the bale, or other separate collection, would be the unit contemplated in the percentage and weight tests of paragraph 246. On the other hand, if the bale contained tobacco of two classes, the unit would be the ascertained quantity of either class. The leaf tobacco meant by paragraph 246 is, apparently, a collection of leaves, or half leaves, having the similarity caused by the circumstances of their having grown in soil of the same general character, in the same climate, and under the same general conditions of moisture or dryness, and by such selection or assortment as it may be customary to make on the plantation; yet having the differences which, despite the similarity of habitat and environment, are to be found in all natural products. Congress is, of course, presumed to be familiar with the fact that leaf tobacco is divided into classes, or is subjected, before being placed in bales, to some kind of an assortment, and a knowledge of the similarities and differences which are to be found in a collection of leaves of a class doubtless furnished the reason for the adoption of the percentage test.

All the tobacco in question in this case, as the evidence on both sides shows, was raised in the same country, and was all of the class known to the trade as "wrappers." Therefore, any bales, or, indeed, the whole invoice, if it might conveniently be treated as a whole for the purpose, was just such a unit as was intended by the statute. Any other view of this legislation would make it meaningless, for the very term "per cent." implies an understanding that the tobacco to be taxed, even though of a uniform grade, may contain some leaves possessing and some not possessing the qualifications required for the higher tax. In such a case, if separate hands, taken from a bale containing only leaves of one class, were treatThe proper answer to this question seems ed as units, the result might be an inacto depend upon the particular circumstances curate conclusion. Doubtless in the hands of a given case. It appears in the testimony classed as containing tobacco dutiable at on both sides of this case that leaf tobacco the lower rate there would be leaves having is divided into two classes, known as the all the requisites of the higher grade, while "wrapper class" and the "filler class." in the hands ascertained to be taxable at Whether or not a bale of tobacco is of uni- the higher rate would be leaves of the form character seems to be easily ascertained. lower grade. This might have the effect of A dealer in leaf tobacco, one of the witnesses making a division of tobacco of one comfor the collector, said: "We never draw mercial class into two grades with respect [from a bale] less than four hands, and it to taxation,-a division which we do not may run four hands, six hands, eight hands, believe to have been contemplated by the or ten hands, according as we may find statute. If the character of the tobacco is whether the bale has been packed honestly, to be learned from an examination of a as we term it, or whether it has been packed | representative quantity therefrom, such as

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ten hands, the hands should be separated, and the statutory tests applied to the gen. eral collection of all the representative leaves, irrespective of their casual associa tion in the separate hands.

Examining the evidence in this case, we find that one of the importers gave testimony, based upon an examination of samples from the bales in controversy, tending to show that two of the plantation lots which were represented by five of those bales contained tobacco of which 85 per cent. neither of the surface of the leaves nor of the quantity thereof, as estimated by the weight of the bale, was of the requisite size for wrappers; that the other two lots, represented by the other five bales in controversy, contained tobacco of which 85 per cent. of the surface, but not 85 per cent. of the weight, was suitable for wrappers. He further testified that 85 per cent. of the tobacco was suitable for wrappers in respect to fineness of texture.

Considered with regard to fitness for wrappers, each leaf of tobacco is divided, by what is called the "stem," into two distinct portions. It is matter of common knowledge that, in making wrappers, the stem is not used, but is removed, with the result of dividing the leaf into separate pieces. From these pieces only are wrappers made, and their size and fineness of texture determine their suitability for wrappers; for if one piece is of insufficient size it cannot be aided in usefulness as a wrapper by the portion on the other side of the stem. If tobacco is imported with the stems removed, each piece, or "side," as it appears to be called by dealers and manufacturers, would of necessity be treated as independent, for there would be no means of knowing with certainty what parts were originally together in one leaf. In applying the test of size, therefore, the size of either side of the leaf is to be looked to, and the evident requirement of the statute is that 85 per cent. of half leaves, or 85 out of 100, are to be of the requisite size and necessary fineness of texture for wrappers. In other words, each of 85 half leaves out of 100 half leaves must contain a portion, sufficiently fine in texture, of the requisite size to make at least one wrapper. Eighty-five per cent. of the surface of the single leaf is not intended, for in that view any single leaf large enough for a wrapper would be, in respect to size, 100 per cent. or entirely of the requisite size for wrapper purposes, or, if one wrapper could be made from it, the leaf would have, as to size, no percentage of suitability. Hence, any leaf would be required to be treated simply as fit or unfit,-100 per cent. suitable in size or not suitable at all,-and no general percentage test would be ap plicable.

The importers call attention to their tes timony to the effect that in none of the four lots mentioned by them was there 85 per v.15s.c.-4

cent. of the weight of the tobacco suitable for wrappers, and suggest that, "as the commodity was bought, sold, and dutied by the pound, the weight must be the test to which the percentage rule applies." There is a practical objection to this view, however, which renders it not acceptable. It might often happen that a half leaf which was suitable, according to the required test, would be joined, in*an unstemmed leaf, to' one which was unsuitable, in which case the weight of the respective parts could not be ascertained. The most natural interpretation of the paragraph in question is to consider 85 per cent. of half leaves, or suitable half leaves 85 in number out of half leaves 100 in number, as the requirement, and to regard the proportion of the weight of the suitable half leaves to the weight of all the leaves as immaterial.

A further requirement of the act is that the leaves of the collection must be of such average lightness that more than 100 are required to weigh a pound; that is to say, if the collection should weigh 160 pounds it must contain more than 16,000 leaves; or, if some smaller collection, taken as representative of the whole, such as 10 hands, should weigh 4 pounds, this representative collection must contain more than 400 leaves. Here we are not to have in view, as in the other test, the separate parts of the leaves, for the language of the act expressly provides for the condition that "100 leaves are required to weigh a pound." The word "leaves" plainly means leaves in their natural state, or whole leaves.

Assuming that the importers, in testify. ing concerning the size and fineness of texture of the tobacco, had in mind the proper test when speaking of the percentage of the surface suitable for wrappers, we must take their evidence to mean that only 5 of the 10 bales in controversy contained tobacco of which less than 85 per cent. fulfilled, as to the size and fineness of texture, the demands of paragraph 246. It would seem, therefore, that the court below was in error in directing a verdict for the importers, and that the judgment of that court ought to be reversed, and the case remanded with directions to set aside the verdict, and to order a new trial, in order that a jury may pass upon the real character of the tobacco contained in the 10 bales withdrawn by the importers. Judgment reversed.

Mr. Justice BREWER did not sit at the argument or take part in the decision.

(155 U. S. 141,

OLIN et al. v. TIMKEN.
(November 19, 1894.)
No. 36.

PATENT-REISSUE-INVALID-LACK OF INVENTION

-ANTICIPATION.

1. Reissue patent to Tilton & Stivers (No. 9,542), dated January 25, 1881, held invalid be

cause the original patent, No. 157,430, dated December 4, 1874, for crossing springs with pivot bolt or articulate joint at the intersection, made no reference to an alternative structure, and the invention was unduly expanded by the introduction in the reissue of the word "preferably" to eliminate the pivot bolt or articulate joint (Huber v. Manufacturing Co., 13 Sup. Ct. 603, 148 U. S. 270); because the reissue was "made, by expansion, to cover structures in public and common use" after the date of the original patent; and because anticipated by prior use.

2. Patent to Henry Timken (No. 197,689), dated November 27, 1877, for springs attached to opposite sides of the bottom of a carriage body, crossing each other, and connected with the side bars, held to involve no invention, in view of the prior art; "and while the patented article may have been popular, and met with large sales, that fact is not important, where the alleged invention is without patentable novelty. Duer v. Lock Co., 13 Sup. Ct. 850, 149 U. S. 216."

3. Patent to C. W. Saladee (No. 239,850), April 5, 1881, for road-wagon springs, held anticipated, in view of the state of the art more than two years prior to the date of the application.

Appeal from the Circuit Court of the United States for the Southern District of Ohio. This was a bill in equity by Henry Timken against Thomas D. Olin and Edwin D. Olin for the infringement of a patent. A decree was rendered for an injunction, with reference to a master for an account (37 Fed. 205); and upon the coming in of the master's report the same was sustained, and a decree rendered for complainant (41 Fed. 169). Defendants appeal.

defendants, and referring the cause to a master for an account, which resulted in a final decree for damages to the amount of $27,897.75, and defendants appealed. The opinion will be found in 37 Fed. 205.

George J. Murray and Wm. H. Doolittle, for appellants. Wm. M. Eccles, for appellee.

Mr. Chief Justice FULLER, after stating the facts in the foregoing language, delivered the opinion of the court.

Appellants manufactured no buggies or vehicles of any kind, but purchased and made springs which were fitted on wooden bars to be attached to the vehicles, and sold such spring bars in the market, and to manufacturers of vehicles. The claims of the three patents, on which appellee's suit was based, were to combinations relating to side-bar buggies and wagons, the side-bar gear and buggy body being elements of each com-, bination. These patents are as follows: * First. No. 197,689, declared to be for "im-" provement in carriage springs," was granted to Henry Timken, November 27, 1877, upon application filed October 27, 1877. The drawings consisted of three figures: (1) A side view of a wagon body with a spring attached; (2) a bottom view of a wagon, showing the spring; and (3) "a sectional end view thereof."

The latter figure is as follows:

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This was a bill in equity, filed by Henry Timken in the circuit court of the United States for the Southern district of Ohio against Thomas D. Olin and Edwin D. Olin to restrain the infringement of three letters patent, namely, No. 197,689, granted to Henry Timken, November 27, 1877, for improvement in "carriage springs"; No. 239,850, to C. W. Saladee, April 5, 1881, for "road wagon"; reissue patent No. 9,542,*granted January 25, 1881, being a reissue of patent No. 157,430, to Tilton & Stivers, for improvement in "springs for vehicles," dated December 1, 1874. Complainant charged that these patents were capable of conjoint use with each other, and that defendants infringed them all. The answer set up want of patentability; anticipation; prior public use; noninfringement; that defendants had the right to manufacture the vehicle springs they made, under a patent (No. 246,571) granted to W. H. Stickle, August 30, 1881, reissued to the defendant Thomas D. Olin, August 21, 1883, as reissue No. 10,372, and which patent was owned by the defendants; also, that the Tilton & Stivers' reissue was utterly void, because not issued for the same invention as the original patent, and for inventions not shown or described therein. The circuit court held the patents valid, and that the defendants infringed the single claims of the Timken and Saladee patents, and the third, fourth, and fifth claims of the Tilton & Stivers' patent, and entered a decree enjoining | block, B. The hind axle, A, and head block,

The specification states:

"My invention relates to buggy and wagon springs; and it consists in the attachment of springs to the bottom of the body at the sides, and crossing the bottom of the body, and connecting with the side bars on the opposite sides of the body, as will be here. inafter more fully set forth.

"The annexed drawing, to which reference is made, fully illustrates my invention. "A represents the hind axle, and A', the front axle, the latter having the usual head

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