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was previously found in the constitution, nor had any attempt been måde: to define it by act of congress. It has been the occasion of much discus-1 sion in the courts, by the executive departments, and in the public journals. : It had been said by eminent judges that no man was a citizen of the United States, except as he was a citizen of one of the states composing the Union.' Those, therefore, who had been born and resided always in the District of Columbia or in the territories, though within the United States, were not citizens. Whether this proposition was sound or not had never been judi-: cially decided. But it had been held by this court, in the celebrated Dred Scott Case, only a few years before the outbreak of the Civil War, that a man of African descent, whether a slave or not, was not and could not be a citizen of a state or of the United States. This decision, while it met: the condemnation of some of the ablest statesmen and constitutional lawyers of the country, had never been overruled; and, if it was to be accepted as a constitutional limitation of the right of citizenship, then all the negro race who had recently been made freemen were still not only noti citizens, but were incapable of becoming so by anything short of an amendment to the constitution. To remove this difficulty primarily, and to estab lish a clear and comprehensive definition of citizenship which should declare what should constitute citizenship of the United States, and also citizenship of a state, the first clause of the first section was framed. The first observation we have to make on this clause is that it puts at rest both the questions which we stated to have been the subject of differences of opinion. It declares that persons may be citizens of the United States without regard to their citizenship of a particular state, and it overturns the Dred Scott decision by making all persons born within the United States and subject to its jurisdiction citizens of the United States. That its main purpose was to establish the citizenship of the negro can admit of no doubt. The phrase, 'subject to its jurisdiction,' was intended to exclude from its operation children of ministers, consuls, and citizens or subjects of foreign states born within the United States.”

That this last sentence, which is the expression relied on by coun. sel for the government, is mere dictum, is plain from what has been stated as the issue involved in those cases. That being so, the observations referred to and relied upon, however persuasive they may appear to be, cannot be accepted as declaring the law in this circuit, at least as against the authority of In re Look Tin Sing, where the question was squarely met and decisively settled. But it is to be observed that the supreme court, immediately succeeding the remarks just quoted, used the following significant language:

“The next observation is more important in view of the arguments of counsel in the present case. It is that the distinction between citizenshíp of the United States and citizenship of a state is clearly recognized and established. Not only may a man be a citizen of the United States without being a citizen of a state, but an important element is necessary to convert the former into the latter. He must reside within the state to make him a citizen of it, but it is only necessary that he should be born or naturalized in the United States to be a citizen of the Union.”

Nor does the interpretation of the phrase in question in the case of Elk v. Wilkins, 112 U. S. 94, 5 Sup. Ct. 41, dispose of the matter, There the question was whether an Indian, born within the United States, and who had severed his tribal relations, was a citizen of the United States, within the meaning of the fourteenth amendment. Mr. Justice Gray, delivering the opinion of the court, said:

“This section contemplates two sources of citizenship, and two sources only,-birth and naturalization. The persons declared to be citizens are all persons born or naturalized in the United States, and subject to the júris: diction thereof.' The evident meaning of these last words is, not merely

subject in some respect or degree to the jurisdiction of the United States, but completely subject to their political jurisdiction, and owing them direct and immediate allegiance. And the words relate to the time of birth in the one case, as they do to the time of naturalization in the other. Persons not thus subject to the jurisdiction of the United States at the time of birth cannot become so afterwards, except by being naturalized, either individually, as by proceedings under the naturalization acts, or collectively, as by the force of a treaty by which foreign territory is acquired. Indians born within the territorial limits of the United States, members of, and owing immediate allegiance to, one of the Indian tribes (an alien, though dependent, power), although in a geographical sense born in the United States, are no more born in the United States, and subject to the jurisdiction thereof, within the meaning of the first section of the fourteenth amendment, than the children of subjects of any foreign government born within the domain of that government, or the children born within the United States, of ambassadors or other public ministers of foreign nations."

In the case of U. S. v. Rhodes, 1 Abb. U. S. 28, 40, Fed. Cas. No. 16,151, it is held that the common-law rule as to citizenship is the law of this country. This decision was made in 1866 in the circuit court for the district of Kentucky. This was about the time when the fourteenth amendment was first proposed to the several states for their adoption, although it was not formally adopted as part of the constitution until July 28, 1868.

But it would be useless to incumber this already lengthy opinion with further argument and observations upon this interesting question. Arriving

at the conclusion, as I do, after careful investigation and much consideration, that the supreme court has as yet announced no doctrine at variance with that contained in the Look Tin Sing decision and the other cases alluded to, I am constrained to follow the authority and law enunciated in this circuit. Counsel for the United States, have argued with considerable force against the com. mon-law rule and its recognition, as being illogical, and likely to lead to perplexing, and perhaps serious, international conflicts, if followed in all cases. But these observations are, obviously, addressed to the policy of the rule, and not to its interpretation. The doctrine of the law of nations, that the child follows the nationality of the parents, and that citizenship does not depend upon mere accidental place of birth, is undoubtedly more logical, reasonable, and satisfactory, but this consideration will not justify this court in de claring it to be the law against controlling judicial authority. It may be that the executive departments of the government are at liberty to follow this international rule in dealing with questions of citizenship which arise between this and other countries, but that fact does not establish the law for the courts in dealing with persons within our own territory. In this case the question to be determined is as to the political status and rights of Wong Kim Ark under the law in this country. No foreign power has intervened or appears to be concerned in the matter. From the law as announced and the facts as stipulated, I am of opinion that Wong Kim Ark is a citizen of the United States within the meaning of the citizenship clause of the fourteenth amendment. He has not forfeited his right to return to this country. His detention, therefore, is illegal. He should be discharged, and it is so ordered.


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(Circuit Court, S. D. New York. January 4, 1896.) CUSTOMS DUTIES_ACT AUG. 28, 1894–CLASSIFICATION-PAINTINGS ON PLAQUEŠ.

Free-hand paintings on plaques, painted with mineral colors, and subjected to a process of firing, which sets and changes the colors, held to be dutiable at 35 per cent. ad valorem, as "plaques * painted in any manner," under paragraph 85 of the tariff act of August 28, 1894, and not free as “paintings, in oil or water colors,

not otherwise pro vided for in this act," and "not made wholly or in part by chanical process," under paragraph 575 of said act. This was an appeal by Altman & Co. from a decision of the board of general appraisers affirming the action of the collector of the port of New York in the classification for duty of certain imported free-hand paintings on china plaques, which were fired to fix the colors; the colors used being mineral colors.

The contention of the importers was that the goods were free, under paragraph 575, as free-hand paintings. Per contra, the government contended:

(1) That paragraph 575 covers only paintings in oil or water colors. The goods in suit were plaques painted with mineral colors.

(2) That paragraph 575 does not include paintings made wholly or in part by mechanical process. The goods in suit were fired, which set and changed the colors, and this was a mechanical process, producing the finished plaque.

(3) That paragraph 575 covers only such paintings as are not otherwise provided for, while paragraph 85 includes all “plaques * painted

in any manner," without reservation or exception. (4) That paragraph 85 is the most specific provision for the goods in the act of 1894, and specifically provides for them.

(5) Section 2 of the act of August 28, 1894 (the free list section), only covers 'articles that are not "otherwise provided for in this act."

Stephen G. Clarke, for importers.
Henry C. Platt, Asst. U. S. Atty.


WHEELER, District Judge. By paragraph No. 85 of the tariff act of 1894, "china, porcelain, parian, bisque, earthen, stone and crockery ware, including plaques, ornaments, toys, charms, vases, and statuettes, painted, tinted, enameled, printed, gilded or otherwise decorated in any manner,” are subjected to a duty of 35 per centum ad valorem; and, by paragraph No. 575, "paintings in oil or water colors, not otherwise provided for,

and not made wholly or in part by stencilling or other mechanical process," are placed upon the free list. This importation is of plaques, free hand painted, without other process, but firing to fix the colors to the ware, and has been assessed under paragraph 85, notwithstanding a protest that it should have been admitted free, under paragraph -575. Paragraph No. 85 clearly provides for painted plaques, without qualification as to the kind or value of the painting. This is more specific than the provision putting oil paintings on the free lişt; and these paintings cannot take the plaques to that list. Judgment affirmed.


(Circuit Court of Appeals, Second Circuit. January 8, 1896.) 1. Customs Duties--CLASSIFICATION-PREPARATIONS OF COAL TAR-ACIDS.

The act of October 1, 1890, contains the following provisions: “All preparations of coal tar, not colors or dyes, not specially provided for in this act, 20 per cent. ad valorem." Paragraph 19. “Acids used for medicinal, chemical or manufacturing purposes, not specially provided for in this act." Paragraph 473, free list. Held, that in respect to the classification of sulphotoluic acid, which is both an acid and a preparation of coal tar, but not a color or dye, the presence, in both provisions, of the words “not specially provided for,” neutralized their effect in each, so that each might be read as if these words were omitted, and that the article would then fall within the specific designation "acids," in the free


In cases of doubt in the construction of tariff laws, the courts resolve the doubt in favor of the importer. Hartranft v. Wiegmann, 7 Sup. Ct. 1240, 121 U. S. 609, and Twine Co. v. Worthington, 12 Sup. Ot. 55, 141 U. S. 468, followed. Appeal from the Circuit Court of the United States for the Southern District of New York.

This was an appeal by Matheson & Co., Limited, from a decision 'of the board of general appraisers sustaining the action of the collector of the port of New York in respect to the classification of ceritain merchandise for duty. The circuit court affirmed the decision of the board, and the importer appealed.

Comstock & Brown, for appellant. * Wallace MacFarlane, U. S. Atty., and James T. Van Rensselaer, Asst. U. S. Atty.

Before WALLACE, LACOMBE, and SHIPMAN, Circuit Judges.

WALLACE, Circuit Judge. In June, 1892, the appellant imported certain merchandise into the port of New York, known as “sulphotoluic acid,” which was classified and subjected to duty under the provision of the tariff act of October 1, 1890, which reads as follows:

"(19) All preparations of coal tar, not colors or dyes, not specially provided for in this act, twenty per centum ad valorem."

The importer protested, claiming the merchandise to be free of duty under the provision of the free list of that act which reads as follows:

“473. Acids used for medicinal, chemical or manufacturing purposes, not specially provided for in this act.”

The board of general appraisers and the circuit court sustained the action of the collector. ! According to the evidence in the record, sulphotoluic acid is a 'coal-tar preparation, but not a color or dye; and it is also an acid used for chemical and manufacturing purposes. Its chief use is for chemical combination with other ingredients in the manufacture of coal-tar colors or dyes. There are many preparations of

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coal-tar that are not acids, as well as many that are; and of colors or dyes made from coal tar there are many which are acids, and many which are not.

Being both a coal-tar preparation and an acid used for manufac. turing purposes, the article in question would fall within the enumeration of either provision in the absence of the other. But as one imposes duty, and the other exempts from duty, it is obvious that congress did not intend both provisions to apply to the same article. In each provision are found the words "not specially provided for"; and it is these words which create uncertainty, because, in consequence of their presence, neither enumeration is made necessarily exclusive of the other. If they were omitted from both provisions, there would be little doubt that “acids,” being des. ignated eo nomine, would be excluded from the general class described as "preparations of coal-tar.” Homer v. Collector, 1 Wall. 486; Arthur v. Rheims, 96 U. S. 143; Robertson v. Glendenning, 132 U. S. 158, 10 Sup. Ct. 44. We think their presence in both pro. visions neutralizes their effect in each, and each may be read as though the words were omitted. Upon this construction the case would fall within the rule that, where an article is designated by a specific name in one provision of a tariff act, that provision, instead of another employing general terms, though sufficiently broad to comprebend it, will fix its character for the purposes of duty.

The case for the appellant would, of course, be still plainer if the words “not specially provided for” were absent in the acid clause, or if it should appear that they refer to particular acids otherwise provided for by the act. If the words were absent in the acid clause, neither provision would impinge upon the other, but they could be read together as subjecting to duty all preparations of coal-tar except the acids and other preparations elsewhere provided for, and as exempting from duty all acids used for medicinal, chemical, and manufacturing purposes.

We think the words in the acid clause are intended to except from its operation certain other enumerated acids, and they can therefore be given full effect without impinging upon any other provision, and thus relieve the legislation of any imputation of repugnancy or inconsistency. Many acids are specifically subjected to duty by the act; among them are acetic acid, boracic acid, chromic acid, sulphuric acid, and others which it is not necessary to name. It is reasonable to suppose that congress, have ing already, subjected these acids to duty, had them under contemplation when it proposed to provide for the free entry of acids, and, intending to purge the several provisions of repugnancy, used the words in question. We think the provision should be construed as intending to exempt from duty all acids used for medicinal, chemical, or manufacturing purposes except the ones which had already been specifically mentioned; and as to these, although they might be used for any of the specified purposes, they are otherwise provided for.

Unless these views are correct, the question is one of doubt; and, in cases of doubt in the construction of customs acts, the courts re

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