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Ratterman v. Telegraph Co., 127 U. S. 411, 8 Sup. Ct. 1127; State Freight Tax Cases, 15 Wall. 232; Express Co. v. Seibert, 142 U. S. 339, 12 Sup. Ct. 250. Does the ordinance in question make such discrimination, or can such a discrimination be made under its terms? The tax is on every express company having an office in the city of Alexandria, and receiving goods, etc., and forwarding them to points within the state of Virginia. Receiving them from what points ? Evidently from any quarter within or without the state, for the next sentence is “or receiving goods, wares and merchandise within the state of Virginia, and delivering them in the city of Alexandria.” This is a description of the business taxed. It includes all the business of the express company, and on that business imposes a tax of $150. The tax is not confined to such business as it does within the state of Virginia, nor is any distinction made between the business done within the state and that done without the state. If the express company does any business within the state of Virginia, and has an office in Alexandria, and thus within reach of the taxing power, it is made to pay on the whole business of receiving and forwarding, from whatever points, the tax of $150. The distinction here drawn is illustrated in the case of Express Co. v. Seibert, supra. That case discussed the question whether an act of the state of Missouri taxing express companies was in conflict with the interstate commerce law:
“The act, after defining in its first section what shall constitute an express company, or what shall be deemed to be such in the sense of the act requiring such express company to file with the state auditor an annual report 'showing the entire receipts for business done within the state of each agent of such company doing business in this state,' etc., further provides that the amount which any express company pays 'to the railroads or steamboats within this state for the transportation of their freight within this state' may be deducted from the gross receipts of the company on such business, and the act also requires the company making the statement of its receipts to include as such all sums earned or charged 'for the business done within this state,' etc. It is manifest that these provisions of the statute, so far from imposing a tax on receipts derived from the transportation of goods between other states and Missouri, expressly limit the tax to receipts for sums earned and charged for business done within the state. This positive and oft-repeated limitation to business done within the state-that is, business begun and ended within the state is evidently intended to exclude, and the language employed does exclude, the idea that the tax is to be imposed on the interstate business of the company."
The language used in the ordinance discussed in Postal Tel. Cable Co. v. City Council of Charleston, supra, is equally clear in its discrimination:
"Telegraph companies or agents each for business done exclusively within the city of Charleston, and not including any business done to or from points without the state, and not including any business done for the government of the United States, its officers and agents, $500."
The ordinance of the city of Alexandria makes no discrimination whatever between business done without and within the state; but, imposing a tax on the company if it has an office in that city, and if some of its business is between points in the state of Virginia, is repugnant to the interstate commerce law, and is void.
The decree of the circuit court is affirmed, with costs.
WERTHEIMER et al. v. UNITED STATES.
(Circuit Court, s. D. New York. May 9, 1895.)
CUSTOMS DUTIES-EMBROIDERED GLOVES-Act Oct. 1, 1890.
Ladies' kid gloves, embroidered with more than three single strands or cords, are liable to a duty of 50 cents per dozen pairs, under the provision of paragraph 458 of the act of 1890, in addition to the other applicable rates therein specified, although such gloves may be commercially known as “three row embroidered" gloves. The words "with more than three single strands or cords,” in paragraph 458, refer to the actual number of single strands or cords upon the glove, and not to any commercial designation thereof.
At Law. Appeal by importers from decision of the board of United States general appraisers affirming the decision of the collector of customs at the port of New York in the classification for duty of certain ladies' kid gloves, embroidered, upon which the collector assessed an additional duty of 50 cents per dozen pairs, under the provisions of paragraph 458 of the act of 1890, and under the particular clause thereof reading: "On all embroidered gloves with more than three single strands or cords, fifty cents per dozen pairs."
The protest of Wertheimer & Co., iinporters, claimed that, while the gloves were embroidered, they were not embroidered with "more than three single strands or cords,” and were not subject to such additional duty of 50 cents per dozen pairs. The evidence tended to show that gloves of this character were known in trade as "three row embroidered gloves." As a matter of fact, however, there were actually more than three single strands or cords on said gloves, although there were but three rows of embroidery thereon. Each of said rows of embroidery contained more than one single strand or cord.
On behalf of the United States, it was contended that this was a designation of the articles by specific and particular description, and referred only to their actual condition, and not to any commercial designation thereof, and, while these gloves might be known in trade as "three row embroidered gloves," as a matter of fact they had upon them nine single strands or cords, or three single strands in each row of embroidery.
W. Wickham Smith, for importers.
TOWNSEND, District Judge (orally). It appears that the board of general appraisers classified the gloves in question for duty according to the actual number of single strands or cords on each glove. It has not been proved that there is any established commercial designation by which such gloves are known which conflicts with such classification; and the decision of the board of general appraisers is therefore affirmed.
UNITED STATES v. FRANKEL et al.
(Circuit Court, S. D. New York. June 3, 1895.)
CUSTOMS DUTIES–DIAMONDS-ACT AUG. 28, 1894.
Diamonds, cut but not set, held dutiable at 25 per cent. ad valorem, under paragraph 338, Act. Aug. 27, 1894, as "precious stones of all kinds, cut but not set," and not free of duty, under paragraph 167 of said act.
The word "diamonds,” in the latter paragraph, held to cover only “miners', glaziers', and engravers' diamonds not set," and to be only a heading to that paragraph, and restricted to the particular diamonds therein enumerated.
At Law. Appeal on behalf of the United States from decision of the board of United States general appraisers reversing the decision of the collector. Reversed.
J. Frankel's Sons imported on September 15, 1894, certain diamonds, cut but not set, upon which the collector assessed a duty of 25 per cent. ad valorem, under paragraph 338. Importers protested, claiming all diamonds to be free, under paragraph 467.
Henry C. Platt, Asst. U. S. Atty., for the United States.
TOWNSEND, District Judge (orally). The articles in question in this case are diamonds, cut but not set, imported September 15, 1894, They were assessed for duty by the collector of customs at the port of New York at 25 per cent. ad valorem, under paragraph 338 of the act of August 28, 1894, which reads as follows:
"338. Precious stones of all kinds, cut but not set, twenty five per centum ad valorem; if set, and not specially provided for in this act, including pearls set thirty per centum ad valorem; imitations of precious stones, not exceeding an inch in dimensions, not set, ten per centum ad valorem. And on uncut precious stones of all kinds, ten per centum ad valorem.”
The importers protested, claiming that the diamonds were free of duty, under paragraph 467 of the free list of said act, which reads as follows:
"467. Diamonds; miners', glaziers', and engravers' diamonds not set, and diamond dust or bort, and jewels to be used in the manufacture of watches or clocks."
The board of general appraisers were of the opinion that congress did not intend to place the diamonds in question on the free list, but, for certain reasons stated in their opinion, they reversed the decision of the collector and held that said diamonds were entitled to free entry under said paragraph 467. From this decision the United States appeals.
It is admitted that the articles are "diamonds cut but not set,” and that they are “precious stones.” The position of the word “diamonds” at the head of paragraph 467 in the free list, printed in the same type as the rest of the paragraph, and followed by a semicolon, of itself raises a presumption that congress thereby intended to place all diamonds upon the free list. The rest of said paragraph, and the language of paragraph 338, forcibly suggest a contrary intention. It has therefore been found necessary to examine the general plan of the whole act, and the punctuation, type, and language thereof.
It appears that in said act congress frequently placed at the beginning of a paragraph the general name or description of articles specifically named therein merely as a heading to such paragraph, and, for no other purpose. In some of these instances the type and punctuation are the same as in paragraph 467. It also appears that it is a part of the general plan of the act to arrange articles and their subheadings in alphabetical order. It further appears from an examination of the whole statute that congress could not have intended to make all diamonds free of duty under said act. Irrespective of the history, and admitted object of said statute to increase duties on luxuries, and reduce duties on necessities, the language of paragraph 338 is most significant upon this point, as showing the legislative intent. It not only provides for a duty of 25 per cent ad valorem upon precious stones of all kinds, cut but not set, but also provides for a duty of 10 per cent. ad valorem on uncut precious stones of all kinds, and on imitations of precious stones. The second section of said act reads as follows:
"On and after the first day of August, eighteen hundred and ninety-four, unless otherwise provided for in this act, the following articles, when imported, shall be exempt from duty."
If, therefore, diamonds are otherwise provided for in said act, they would not be included in the free list. The phrase, “precious stones of all kinds, cut but not set,” not only concededly covers diamonds, but is a specific provision, and the only provision, for "cut" diamonds. The counsel for the government strenuously contends that the phrase, “precious stones, cut but not set," is a more specific description of these diamonds, cut but not set, in the condition in which they are imported, than the single word “diamonds” in the free list. In that event the more specific appropriation must control. Magone v. King, 1 U. S. App. 207, 2 C. C. A. 363, 51 Fed. 525. It is further to be borne in mind that paragraph 338, in terms, covers precious stones "of all kinds.” If it were intended by the use of the word "diamonds” in paragraph 467 to make all diamonds free, as is contended by counsel for the importer, then miners', glaziers', and engravers' diamonds, when set, would be free of duty. But it is manifest that congress could not have intended this result, because, by the express language of said paragraph, such diamonds are only free of duty when not set. And, finally, if the word "diamonds” in paragraph 467 was anything more than a subheading, there would have been no necessity of adding thereafter, in the same paragraph, the different kinds of diamonds, such as miners', glaziers', and engravers' diamonds. No sufficient reason has been suggested why, if all diamonds were to be free, congress should have specifically provided for miners', glaziers', and engravers' diamonds, cut but not set. I therefore am of the opinion that congress did not intend by the act of August 28, 1894, to admit diamonds free of duty, but that a consideration of the general plan and arrangement of said act, and a comparison of the foregoing provisions, show a plain intent to impose a duty of 25 per cent. on diamonds cut but not set. The decision of the board of general appraisers is reversed.
STUART v. SMITH. (Circuit Court, s. D. New York. April 16, 1895.) COPYRIGHT-INFRINGEMENT-INJUNCTION AGAINST OFFICER OF CORPORATION.
In a suit against one S. for an injunction against infringement of a copyright and for an accounting, it appeared that s. was the president and general manager of a corporation, financially responsible, by which, if at all, the infringement had been committed, contrary to the instructions of S., which corporation was not a party to the suit. Held, that s. should not alone be held personally responsible for the alleged wrongful acts, merely because he was an officer of the corporation, and that the bill should be dismissed. Linotype Co. v. Ridder, 65 Fed. 853, followed. This was a suit by Ruth McEnery Stuart against Orlando J. Smith for infringement of a copyright. The cause was heard on the pleadings and proofs.
A. T. Gurlitz, for complainant.
TOWNSEND, District Judge. This is a final hearing on a bill alleging infringement of copyright, and praying for an injunction and an accounting. A preliminary injunction was granted November 18, 1893. Two motions to vacate the same have been denied. The complainant is the author of a story originally entitled "Carlotta di Carlo," the title of which was afterwards changed to "Carlotta's Intended.” The defendant is the president and general manager of the American Press Association, à corporation which is engaged in furnishing matter in stereotype plate and syndicate form to a large number of newspapers throughout the United States. It is not necessary now to consider the circumstances in which the defendant claims that said press association acquired the right to publish said story, nor the proposed use thereof. Such right, if any, depends upon the construction to be given to a certain contract between the complainant and the J. B. Lippincott Company, which sold said story to said Press Association. The J. B. Lippincott Company is the publisher of Lippincott's Magazine. The complainant first sent her story to the editor of said magazine. Thereupon he called upon her, asked her to enlarge it, so that it might be used as the initial story in his magazine, and agreed to pay her $300 therefor. Afterwards he sent her a check for said sum, and inclosed therewith the following letter and receipt: "Lippincott's Monthly Magazine.
“Philadelphia, Feb. 27th, 189-. “Mrs. R. McE. Stuart-Dear Mrs. Stuart: I send herein check for three hundred dollars ($300.00) in accordance with our agreement, which is in payment for the manuscript 'Carlotta di Carlo,' on receipt of which kindly send me receipt as indicated below. We send the manuscript back to you by express, prepaid, for the purpose of your incorporating in it the parts which you said you had previously taken out. In its present shape, I am afraid it will be too short a story for the purpose for which we desire to use it, and If you could add, say a few thousand words, without affecting it disadvantageously, we should like you to do so. The name, of course, you will remember, we have concluded to change, so please suggest some that you think appropriate. "Yours truly,
J. M. Stoddart."