In the matter of the appeal of Blumlein & Co. as to the duty on leaf tobacco. Schedule P of the act of 1883 provided that—
“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.”
Here was a lot of leaf tobacco in bales, packed in the usual way, as tobacco is usually packed, all of it of the requisite size and necessary fineness of texture to be suitable for wrappers, and enough of it of the requisite lightness to make 20 per cent, of it light enough to take more than 100 leaves to weigh a pound, and 60 per cent, of other parts of it light enough to take over 100 leaves to weigh a pound. The bales were of uniform quality, and this percentage was made by sample of 10 hands, drawn from sample bales of more than 1 in 10, and weighing it. The custom-house officers ascertained this percentage, it seems to me, in the proper way. It is said that it ought to have been weighed by a United States weigher, but I do not think so. When it is getting at the classification of the goods, I do not think that is necessary. I do not see but that they proceeded regularly in ascertaining what these goods were. But when they got it done, (it was unstemmed,) they put 75 cents per pound on as many pounds of those bales in which there was tobacco of the requisite lightness in one case as 20 per cent, would be of the whole, and in the other case as 60 per cent, would be of the whole. They did not assess 75 cents a pound on any particular mass or quantity of tobacco, but they found in one mass 20 per cent, of the requisite lightness mingled in the usual way with the rest, and in the other mass 60 per cent, of the requisite lightness so mingled; and then computed the number of pounds there would be of the requisite lightness at those rates per cent., and assessed the duty on that number of pounds, as an undivided part of the whole, and exacted that duty, which was paid. If that is right, the decision is right; if not, not. Now this statute contemplates that in this tobacco there will be some that is heavy and some that is light; it will not be of uniform weight. It is not to be sorted out, and have all the tobacco that is light enough to take 100 leaves or more to make a pound in one package, and all the other in another package, for this purpose. The two kinds are to be put in together in the usual way, and that is shown by the fact that it says, if thehe is 85 per cent, of the light kind in with the other kind,— if it comes up to that, — then the duty shall be 75 cents per pound; which would not be the provision at all if it was to be classified the other way, and all that was of the requisite lightness picked out. When tobacco is put up for classification in a mass, they are to ascertain what per cent, there is in the mass which is of a uniform quality — that comes up to this standárd; and, if 85 per cent, of it comes up, then it is to pay 75 cents a pound if unstemmed-, and a dollar a pound if stemmed. The point was how this tobacco was to be rated. When they established what they did, they established as to one lot, packed in the ordinary *233way, that 20 per cent, of it was of requisite lightness. The result was that the tobacco did not conic up to 85 per cent., and was assessable only at 35 cents per pound. It was not of the quality that should pay 75 cents per pound; it did not come up to that. The collector assessed 75 cents per pound on this tobacco, which was in with that assessable at 35 cents per pound; that is, not 75 cents per pound on the whole mass, but 75 cents per pound on 20 per cent, of the whole mass, undistinguished from the rest. If that was the way this was to be done, this law ought to read, “seventy-five cents on as many pounds of the whole as the per cent, of tobacco of the requisite lightness makes;” which obviously is not the meaning of the act. It did not contemplate that the tobacco was to be assessed in that way, but the mass of tobacco of uniform kind was to be looked at, and, if the per cent, came up to 85, then it was to pay the higher rate; if not, the lower rate. So none of this tobacco came up to the higher rate. The highest,was 60 per cent., instead of 85, and I think none of it was assessable beyond 35 cents a pound.
IS’ow this case of Fall v. Robertson, 11 Sup. Ct. Rep. 41, which I tried, seems to be relied upon; but there, at the invitation of the customs officers, was packed into a bale a separate mass of tobacco of the requisite fineness and lightness. That was done for the purpose of bringing the bale down below 85 per cent. The point was whether that was right. I thought at first it was; I thought the bale was the unit. In thinking :t over afterwards, I thought not. It was a mass of tobacco packed to be of the same grade as usually packed, and made part of a bale, distinguishable by itself, of the requisite fineness and lightness, and that was to be assessed accordingly. I so decided it, and the supreme court said that was right, not because there was to bo found in there leaves of the requisik' lightness, but because in some distinguishable mass there was tobacco of the requisite lightness. I think that was attempted to be followed here, but mistakenly, because here are only leaves packed in just as tobacco,is packed ordinarily,--some of the requisite lightness and some not, —but not 85 per cent, of the requisite lightness in the mass; therefore I think that the decision of the appraisers should be reversed.