586*585

1900.

JOSEPH SCHLITZ BREWING CO. v. UNITED STATES.

*Messrs. Wm. B. King and George A. The object of this section is evidently to
741
King for appellant.
*Mr. Assistant Attorney General Pradting to the manufacturer a rebate of duties
stimulate domestic manufactures by allow-
for appellee.
paid upon imported materials used by him
in such product.

Mr. Justice Brown delivered the opinion of the court:

This is a claim for a drawback of duties upon certain imported bottles and corks alleged to have been used in the manufacture of bottled beer, subsequently exported.

By 25 of the tariff act of 1890 (26 Stat. at L. 567, 617, chap. 1244), "where imported materials on which duties have been paid are used in the manufacture of articles manufactured or produced in the United States, there shall be allowed on the exportation of such articles a drawback equal in amount to the duties paid on the materials used, less one per centum of such duties."

was

manufactured by the claimant at waukee, Wisconsin. Milused in the manufacture, when exported, were The imported materials Identified, the quantity of the materials used and the amount of duties paid thereon ascertained, and the fact of the manufacture of the articles In the United States and their exportatlon were determined under regulations prescribed by the Secretary of the Treasury. total amount of the duties paid on the materials The mentioned so used and exported was $12,189.32, divided as follows: $9,817.97; upon the hops and barley, $2,371.35. Upon the bottles and corks, III. The Treasury Department has not fused to pay the drawback upon the hops and barley, but such drawback could be paid under the regulations of the department. to pay the drawback upon the bottles and corks It refuses for the reason stated in the following official letter dated March 24, 1893:

re

The theory of the claimant in this connec-tarticle from ordinary beer, and requires * tion is that bottled beer is really a different process of manufacture in which bottles and corks are a material ingredient. Its argu*a* ment is thus stated in the petition:

becomes necessary to kill the yeast in the "In the manufacture of beer for export it beer in order to prevent second fermentation and consequent ruin of the beer, and, in order to destroy the germs of the yeast, the finished beer must be steamed to the degree necessary to kill such germs, and for that purpose the beer must be inclosed securely in some vessel to prevent the escape of the carwith water and steam turned into the water, maining at that temperature for about one hour, raising its temperature to about 150° and rewhen it is cooled down to about 80° or 90°. purpose of destroying living yeast cells, and is This process, known as pasteurizing, is for the necessary for beer bottled for export.

Pasteurizing can be done in a large vessel beimpregnated by contact with the atmosphere fore bottling, but the beer would become again when afterwards drawn into bottles.

cause if the temperature rises too high the beer This process must be conducted carefully, beremaining in it are more apt to be eliminated, gets an unpalatable taste and the albuminoids resulting in a loss of clearness, which renders the beer unsalable.

This pasteurization may be omitted in the case of bottled beer for local use.

The bottles, previous to their use, undergo a

(Here follows certain correspondence sum- special washing process with hot water and marized in the opinion.)

VII. The manufacture of beer for bottling for export differs from the manufacture for ordinary domestic use, both because the materials must be selected with greater care, and the process must be conducted differently in order that the bottled product may keep without change under varying conditions of climate, temperature, position, and transportation, and the beer preserve purity and clearness under all such varying conditions. Turbidity of bottled beer made for exportation must especially be avoided, as this renders the beer commercially unsalable. This is chiefly caused by the precipitation of albuminoids contained in the beer, and the differences in the process of manufacture between domestic beer and bottled beer for export are chiefly intended for the elimination of these albuminoids. It may also be caused by the germInation of living yeast cells, and this is prevented by the process of pasteurization.

emptied continuously. They are then washed soda, so arranged that the bottles are filled and in a tank filled with lukewarm water, on the outside by hand and on the inside by brushes in the washing machine, and then rinsed with cold water before being placed in the racks to be filled.

Old as well as new bottles are used.

purchase of the ingredients until the completion
X. In making bottled beer, from the time of
of the finished product, the process must be so
managed as to diminish the albuminoids. When
prepared as stated in the foregoing findings, bot-
tled beer can stand the heat at the equator
without being spoiled.

be beer intended for shipment, whether to
XI. Beer bottled for export is understood to
domestic or foreign points, and for use other
than local and immediate.
tled for local and immediate use, it may be the
When beer is bot-
ex-pared in the same manner as for export, includ-
same beer as herein before described and pre-
ing pasteurization, or it may be the same beer
zation, or it may be ordinary keg beer, differing
prepared in the same manner without pasteuri-
from bottled beer for export in the particulars
described in findings VII. and VIII., and with-
out pasteurization.

IX. After beer intended for bottling for port is placed in the barrels the following pro

cesses occur:

The barrels are hoisted to the required height of the filling machine, the stamp is taken off, canceled, and replaced, the keg is opened, a faucet entered in the lower hole, and the beer drawn from the barrel into the filling machine and through a proper disposal of siphons into the bottles. The bottles are then sent to the corking machines and corked; a thin metal cap is placed over the cork for the protection of the cork and a wire attached to the neck of the bottle and wound over the cork. are then placed in the steaming boxes, and these The bottles boxes carried to a steaming vat, which is filled

is delivered in cases of bottles and an extra
XII. When bottled beer is sold to retailers, it
charge is made to the purchaser for the case
and bottles, which charge is credited to his ac-
count on the return of the case and bottles.
A similar practice obtains on the sale of the
bottled beer by the case by retailers to their

consumers.

bonic acid gas, and of all such vessels a bottle manufactured of glass is the one best adapted for that purpose. Such beer, after being subjected to the process of steaming, is materially different from the beer before being subjected to steaming, and in order to create such different article a closed glass bottle is indispensable, and the bottles and corks, forming a portion of the complete manufactured article known as 'bottled beer,' are, as well as the hops and barley entering into the same, a necessary component part of the article when completed and in a condition ready for export."

must be inclosed in some vessel to prevent the escape of the carbonic acid gas, only shows that the beer is bottled before it is finally manufactured and ready for the market. This process certainly does not convert a bottle from an incasement into an ingredient. In this particular, beer does not materially differ from a hundred other arti cles which require to be incased for their proper preservation. Thus, champagne and other sparkling wines must be bottled while yet effervescing, or they will lose the tang which gives them their principal value. The same remark may be made of Apollinaris It seems there has been some difference of and other effervescing waters, though not opinion among the Treasury officials upon manufactured, and of certain canned fruits this subject, since on March 31, 1886, the and vegetables which are required to be inthen Secretary of the Treasury decided, un-cased while hot and still in the process of der a statute similar to the one above cited, preservation. that a drawback should be allowed, not only for the hops, rice, and barley used in the manufacture of the beer, but for the bottles and corks, and in an official table of drawback duties, published August 17, 1886, bot-in which imported shooks were used in the tles and corks imported and used in bottling beer were specifically named as entitled to the benefit of a drawback to the full amount of the duty paid. This ruling remained in force until October 28, 1890, when the assistant secretary decided that imported bottles used in the bottling of fermented liquors made here from domestic grains and hops were not entitled to a drawback under the tariff act of 1890; but, notwithstanding this ruling, it would appear that the drawback continued to be allowed and paid until March 24, 1893, when, in a letter to the collector of customs of New York, the Secretary overruled and rescinded the earlier decisions, and has since refused to allow the drawback.

The claim is by no means so strong a one for the allowance of a drawback as was the Tide Water Oil Co. v. United States, 171 U. S. 210, 43 L. ed. 139, 18 Sup. Ct. Rep. 837,

manufacture of boxes subsequently exported to foreign countries. We held in that case that boxes constructed of shooks which were* imported in bundles of ends, sides, tops, and bottoms, and needed only to be put together in the United States and certain nailing and trimming, the whole value of which was equal to about one tenth of the value of the boxes, were not "wholly manufactured" in the United States within Rev. Stat. § 3019, and the Treasury Regulations of 1884.

It may be entirely true that, if this draw. back be not allowed, the duties upon the bottles and corks will preclude the manufacturer from competing in foreign markets with foreign brewers, since he must necessarily export his beer in imported bottles, In our view, the question presents no dif- while his foreign competitor may use bottles ficulty whatever. Under the statute, the manufactured in his own country. Yet this drawback is allowed only upon "imported apparent hardship will not authorize us to materials used in the manufacture do violence to the clear language of the statof articles manufactured or produced in the ute. If the law afford him an imperfect reUnited States," and subsequently exported. lief, his remedy is by application to ConBy this is undoubtedly meant that the in-gress for additional legislation, and not to ported materials must enter into and form the judicial power for a strained interpretaone of the ingredients of the manufactured tion of the law already in force. article, as did the hops and barley upon The judgment of the Court of Claims is which the drawback was allowed, and prop-right, and it is therefore affirmed. erly allowed, by the court of claims. But the bottles and corks are not "imported materials" at all, but finished products, and usable for any liquor which the importer may choose to put in them. Neither are they ingredients used in the manufacture of exported or any other kind of beer, in any proper sense of the term, but simply the packages which the manufacturer, for the purposes of export, sees fit, and perhaps is required, to make use of for the proper preservation of his product. Bottled beer is still beer, made of the same ingredients as ordinary beer, though made with greater care, and to speak of the bottles and corks as ingredients of the beer is simply an abuse of language.

The fact that the beer must be steamed after bottling to a point necessary to kill the germs of yeast, and for that purpose

(182 U. S. 221) JOHN H. GOETZE, Appt.,

บ.

UNITED STATES. (340)

GEORGE W. CROSSMAN et al., Appts,

v.

UNITED STATES. (515)

Duties—jurisdiction of board of general ap praisers.

Jurisdiction of the board of general appraisers

under the customs administrative act of June 10, 1890 (26 Stat. at L. 131, chap. 407), anthorizing an appeal to the board from a decl sion of a collector "as to the rate and amount of the duties chargeable upon Imported mer chandise," if paid under protest, does not

The judgments of the Circuit Court are therefore reversed, and the cases remanded to that court, with instructions to reverse Argued January 8, 9, 10, 11, 1901. Decided the action of the board of general appraisers.

of New York to review a judgment sustaining a demurrer in an action removed from a state court and brought to recover back duDuties-importations from Porto Ricoties on goods imported from Porto Rico.

gally exacted and paid under protest upon certain importations of sugar from San Juan, in the island of Porto Rico, during the autumn of 1899, and subsequent to the cession of the island to the United States.

to hold that, where a party has procured the removal of a cause from a state court upon the ground that he is lawfully entitled to a trial in a Federal court, he is estopped to deny that such removal was lawful if the Federal court could take jurisdiction of the case, or that the Federal court did not have the same right to pass upon the questions at the cause had remained there. Defendant neither gains nor loses by the removal, and the case proceeds as if no such removal had taken place. Cowley v. Northern P. R. Co. 159 U. S. 569, 583, 40 L. ed. 263, 267, 16 Sup. Ct. Rep. 127; Mansfield, C. & L. M. R. Co. v. Swan, 111 U. S. 379, 28 L. ed. 462, 4 Sup. Ct. Rep. 510; Mexican Nat. R. Co. v. Davidson, 157 U. S. 201, 39 L. ed. 672, 15 Sup. Ct. Rep.

Upon the petition of the collector, and pursuant to Rev. Stat. § 643, the case was removed by certiorari to the circuit court of the United States, in which the defendant ap-issue that the state court would have had if peared and demurred to the complaint upon the ground that it did not state a cause of action, and also that the court had no jurisdiction of the case. The demurrer was sustained upon both grounds, and the action dismissed. Hence this writ of error.

In this and the following cases, which may be collectively designated as the "Insular Tariff Cases," the dates here given become material:

In July, 1898, Porto Rico was invaded by the military forces of the United States under General Miles.

On August 12, 1898, during the progress of the campaign, a protocol was entered into between the Secretary of State and the French Ambassador on the part of Spain, providing for a suspension of hostilities, the cession of the island, and the conclusion of a treaty of peace. 30 Stat. at L. 1742.

On October 18 Porto Rico was evacuated by the Spanish forces.

563.

This, however, is more a matter of words than of substance, as the defendant unquestionably has the right to show that the state court had no jurisdiction, or that the complaint did not set forth facts suflicient to constitute a cause of action. This we understand to be the substance of the defense in this connection.

By Rev. Stat. § 2931, it was enacted that the decision of the collector "as to the rate and amount of duties" to be paid upon imported merchandise should be final and conOn December 10, 1898, such treaty was clusive, unless the owner or agent entered a signed at Paris (under which Spain ceded protest and within thirty days appealed to the United States the island of Porto therefrom to the Secretary of the Treasury; Rico), was ratified by the President and Sen- and, further, that the decision of the Secreate February 6, 1899, and by the Queen Re-tary should be final and conclusive, unless gent of Spain March 19, 1899. 30 Stat. at L. 1754.

On March 2, 1899, an act was passed making an appropriation to carry out the obligations of the treaty.

On April 11, 1899, the ratifications were exchanged, and the treaty proclaimed at Washington.

suit were brought within ninety days after the decision of the Secretary. By Rev. Stat. § 3011, any person having made payment under such protest was given the right to bring an action at law and recover back any excess of duties so paid.

The law stood in this condition until June 10, 1890, when an act known as the customs

On April 12, 1900, an act was passed, com-administrative act was passed (26 Stat. at monly called the Foraker act, to provide temporary revenues and a civil government for Porto Rico, which took effect May 1, 1900.

Messrs. Frederic R. Coudert, Jr., Charles F. Adams, and Paul Fuller for plaintiffs in error.

L. 131, chap. 407) by which the above sections (Rev. Stat. §§ 2931, 3011) were repealed and new regulations established, by which an appeal was given from the decision of the collector "as to the rate and amount of duties chargeable upon imported merchandise," if such duties were paid under protest, to a board of general appraisers whose decision should be final and conclusive (§ 14) "as to the construction of the law and the facts respecting the classification of such merchandise and the rate of duty imposed thereon under such classification," unless within This case raises the single question wheth-thirty days one of the parties applied to the er territory acquired by the United States | circuit court of the United States for a reby cession from a foreign power remains a "foreign country" within the meaning of the tariff laws.

Solicitor General Richards and Attorney General Griggs for defendant in error.

*Mr. Justice Brown delivered the opinion of the court:

1. Did the question of jurisdiction raised by the demurrer involve only the jurisdiction of the circuit court as a Federal court, we should be obliged to say that the defendant was not in a position to make this claim, since the case was removed to the Federal court upon his own petition. It is no infringement upon the ancient maxim of the law that consent cannot confer jurisdiction,

view of the questions of law and fact involved in such decision. § 15. It was further provided that the decision of such court should be final, unless the court were of opinion that the question involved was of such importance as to require a review by this court, which was given power to aflirm, modify, or reverse the decision of the circuit court.

The effect of the customs administrative act was considered by this court in Re Fas sett, 142 U. S. 479, 35 L. ed. 1087, 12 Sup.

other than customs cases; and the fact that by § 25 no collector shall be liable "for or on account of any rulings or decisions as to the classification of said merchandise or the duties charged thereon, or the collection of any dues, charges, or duties on or on account of said merchandise," or any other matter which the importer might have brought be

Ct. Rep. 295, in which we held that the de- | cision of the collector that a yacht was an imported article might be reviewed upon a libel for possession filed by the owner, notwithstanding the customs administrative act. It was held that the review of the decision of the board of general appraisers, provided for by § 15 of that act, was limited to decisions of the board "as to the construc-fore the board of general appraisers, does not tion of the law and the facts respecting the ⚫ classification" of imported merchandise "and the rate of duty imposed thereon under such classification," and that it did not bring up for review the question whether an article be imported merchandise or not, nor, under § 15, is the ascertainment of that fact such a decision as is provided for. Said Mr. Justice Blatchford: "Nor can the court of review pass upon any question which the collector had not original authority to determine. The collector had no authority to make any determination regarding any article which is not imported merchandise; and The case of Elliott v. Swartwout, 10 Pet. if the vessel in question here is not imported 137, 9 L. ed. 373, was an action of assumpsit merchandise, the court of review would have against the collector of the port of New no jurisdiction to determine any matter re- York to recover certain duties upon goods algarding that question, and could not deter-leged to have been improperly classified. It mine the very fact which is in issue under the libel in the district court on which the rights of the libellant depend."

"Under the customs administrative act the libellant, in order to have the benefit of proceedings thereunder, must concede that the vessel is imported merchandise, which is the very question put in contention under the libel, and must make entry of her as imported merchandise, with an invoice and a consular certificate to that effect." It was held that the libel was properly filed.

restrict the right which the owner of the merchandise might have against the collector in cases not falling within the customs administrative act. If the position of the gov ernment be correct, the plaintiff would be remediless; and if a collector should seize and hold for duties goods brought from New Orleans, or any other concededly domestic port, to New York, there would be no method of testing his right to make such seizure. It is hardly possible that the owner could be placed in this position. But we are not without authority upon this point.

was held that as the payment was purely voluntary, by a mutual mistake of law, no action would lie to recover them back, although it would have been different if they had been paid under protest. Said Mr. Justice Thompson: "Here, then, is the true distinction: when the money is paid voluntarily and by mistake to an agent, and he has paid it over to his principal, he cannot be made personally responsible; but if, before paying it over, he is apprised of the mistake, and required not to pay it over, he The question involved in this case is not is personally liable." If the payment of the whether the sugars were importable articles money be accompanied by a notice to the colunder the tariff laws, but whether, coming lector that the duties charged are too high, as they did from a port alleged to be domes- and that the person paying intends to sue to tic, they were imported from a foreign coun- recover back the amount erroneously paid, try; in other words, whether they were im- it was held that such action must lie "unless ported at all as that word is defined in Wood- the broad proposition can be maintained, ruff v. Parham, 8 Wall. 123, 132, 19 L. ed. that no action will lie against a collector to 382, 384. We think the decision in the Fas- recover back an excess of duties paid him, sett Case is conclusive to the effect that, if but that recourse must be had to the govern the question be whether the sugars were im- ment for redress." The case recognized the ported or not, such question could not be fact that, with respect to money paid under raised before the board of general apprais- a mistake of law, the collector stood in the ers; and that whether they were imported position of an ordinary agent, and could be merchandise for the reasons given in the Fas-made personally liable in case the money sett Case that a vessel is not an importable were paid under protest.

article, or because the merchandise was not This decision was made in 1836. Appar. brought from a foreign country, is imma-ently in consequence of it an act was passed terial. In either case the article is not imported.

Conceding, then, that § 3011 has been repealed, and that no remedy exists under the customs administrative act, does it follow that no action whatever will lie? If there be an admitted wrong, the courts will look far to supply an adequate remedy. If an action lay at common law, the repeal of §§ 2931 and 3011, regulating proceedings in customs cases (that is, turning upon the classification of merchandise), to make way for another proceeding before the board of general appraisers in the same class of cases, did not destroy any right of action that might have existed as to

in 1839 requiring moneys collected for du ties to be deposited to the credit of the Treasurer of the United States; and it was made the duty of the Secretary of the Treasury to draw his warrant upon the Treasurer in case he found more money had been paid to the collector than the law required. It was held by a majority of this court in Cary v. Curtis, 3 How. 236, 11 L. ed. 576, that this act precluded an action of assumpsit for money had and received against the collector for duties received by him, and that the act of 1839 furnished the sole remedy. It was said of that case in Arnson v. Murphy, 109 U. S.