NORTHERN PAC·. R. CO. V. HINCHMAN.
523
NORTHERN PAC. R. CO. v. HINCHMAN et al. (Circuit Court, D. Montana. November 14, 1892,)
L
PuBLIC LANDS-RAILROAD GRANTS-LANDS EXCEPTED-"PUBLIC LANDS" FINED.
DE-
'rhe Ia.nds in the Bitter Root valley above the Lo Lo Fork were not "public lands," such as could pass to the Northern Pacific Railroad by the grant expressed in the act of July 2, 1864, § 3, as of that date; for by the treaty of 1855 with the Flathead Indians it was provided that these lands should be surveyed and examined, and if, in the judgment of the president, they proved to be better adapted to the wants of the Flathead tribe than the general reservation therein provided, then such portions as were necessary should he set apart as a separate reservation for the tribe, and that they should net be open to settlement until the deciSion of the president was made known; and such decision was not made known 1llltil 1871. when the president decided not to make the lands a reservation. By the act of June 5, 1872, (17 St. at Large, 226,) these lands were excluded from the operation of the general pre-emption and homestead laws. Certain of pre-emption, without cost, W'lre given to Indians actually occupying and cultivating any portion tllereof. Special provisions were made as to the manner of selling the remainder to settlers, and a special account was directed to be kept of the proceeds, a portion of which was to be set aside and expenued. by the president for the benefit of thQ Indians. Held, that by this act these lands were reserved for a special purpose, so that they did not pass to the Northern Pacific Railroad Company on the subsequent filing of its plat of definite location, although they were within the limits of the grant. This reservation by congress of the land in question was not in violation of any contract rights uc'qulred by the railroad company under the grant. for the grant only attachl'd,on the defiulte location of the road, to lands to which the United States had "full title, not reservell, sold,· granted, or otherwise. appropriated." , Section 6 of the granting act, which directs the president to cause the lands to be surveyed for 40 miles in width, on both sides of the entire Une, "after the general route shall be fixed," and declares that the odd sections granted shall not be liable to "sale or entry or pre-emption before or after they are surveyed, except by said company, as provided by this act," did not operate to reserve or withdraw such lands from sale or other disposition by the government before the filing of the map of definite location with thecoIilmissioner of the general land office. Railroad Co. v. l:)anders, 46 Fro. Rep. 239, 47 Fed. Rep. 604, followed.
2.
Sum-PRIOR ApPROPRIATION.
8.
SAME.
4. SAME-WITHDRAWAL FROM SALE, ETC.
5.
"sale or entry or pre-emption," and these terms do not include such an appropriation as was made by the act of 1872. 6. SAME.
at the time the "generrll route" was fixed, the reservation was only from
Eyen if it be conceded that this reservation or withdrawal could operate
The fact that in 1874 an act was passed extending the homestead law to all settlers on these lands who might desire to take advantage thereof did not take the lands from the special appropriation made by the act of 1872, and restore them to the same condition as the mass of the pUblic domain, so as to make the grant attach thereto on the subsequent fixing of the definite route by the filing of the plat thereof with the commissioner of the general land office.
At Law. Action in ejectment, brought bJ the Northern Pacific Railroad Company against James u.. Hinchman and others. TIied to the court on an agreed statement. .Judgment for defendants.
524
FEDERAL REPORTER,
vol. 53.
F. M. Dudley and W. E. Cullen, for plaintiff. Leslie & Cra.ven, for defendants. KNOWLES, District Judge. This is an action in the nature of t:'!jectment, brought by plaintiff to recover of defendant and others the possession of certain lands in the Bitter Root described as section 11 N., range 20 'W., in the county of Missoula, territory of Montana. Since the commencement of this suit, Mon· tana has become a state in the tJnion. The case was submitted to the court upon an agreed statement of facts. From this it suffi· in dis· ciently appears that plaintiff received a grant to the pute, it is by some operation of law excluded therefrom. It is within 40 miles of the line of the railroad route of plaintiff as located, built, and accepted, and is an odd section. It also appears that defendant settled upon 160 acres of said section on the 3d day of October, lS8J,claimillg the same as a homestead'; that he improved it,and, on DeGember 5, 1887, made his final proofs, and pl'c-empted t/he same; and on the Gth day of November, 18S9, he received a patent to the same fromthe United States. "It is also agreed that the Flathead Indians made a tre.:'tty with tlle {Jnited Sta.tes in 1855 Wregard to their lands, which treaty was ratified by the senate, March 8, 1859; that the lands in the Bitter Root valley above the Lo Lo Fork, among which are situated the lands in dispute, had been carefully surveyed before 1871, lllld the Presideij,t had decided that the same Jutd proved not to be better adapted to the wants of the Flathead tribe than the general reserva· tion provided for in said treaty, and had issued an order to that effect on November 14, 1.871. In that order it was proYided that any Indians residing in the Bitter Root valley who desired to become citizens reside upon the land which they then occupied, not exceedingin quantit,y what is allowed under the homestead and preemption laws to all citizens, should be permitted to remain in said valley upon making known to the superintendent of Indian affairs for'Montana territory, by the 1st day of January, 1873, their inten· ti()n to comply with these conditions. In the above order referred to there was a provision that said IndiMls should be removed to tbp, general reservation provided t,herefor. It was also a,greed that from the time of making said treaty the Ihdians continued to occupy and claim the lands in the Bitter Root valley, and were so occupying and claiming at the time of said order of the president, November 14, 1871, and that they continued in possession and claimed and were t,here in August, ] 872, and one of their chiefs, Cbarlot, is yet there, with several hundred Indians under him. It is also agreed tbat since June, 1872, in purwance of the act of congress of the 5th of that month, there had been issued 54 patents for parts of said Bitter Root lands above Lo Lo Fork to varioul:! ones of said Indians, and 3,240 acres of the said lands covered by thcl:le patents are within odd sections, and within 40 miles of said road, and are yet in the posseRsion of and claimed by said Indians. That said Indians, however, have refused to accept said patents for fear of
NORTHERN PAC. R. CO. V. HINCHMAN.
525
severing their tribal relations; that Charlot, the chief of said In-. dians, lives upon one section of said land, and has done so since 1855. It is also agreed that there is no claim on the part of the Indians residing in the Bitter Root valley that the same or any part thereof is an Indian reservation, or that the Flathead tribe, to which they belong, has never parted with the Indian title thereto; nor is the tract in controversy claimed by any of said Indians; nor was it so claimed by any of them at the date of the filing of the map of the definite location of plaintiff's road, or at the date of the entry thereof by defendant; nor was the said tract of land embraced in any of the patents mentioned above as having been issued to, but 'not accepted by, said Indians. The third section of the act incorporating plaintiff, and making a grant of land to it, provides"That there be. and hereby is, granted to the Northern Pacific Railroad Company, its successors and u'ilsigns, for the purpose of aiding in the construction of sald railroad and telegraph line to the Pacmc coast, and to seeure the safe and speedy transportation of the mails, troops, munitions of war, and public stores over the route of said line of railway, every alternate section of public land, not mineral, designated by odd numbers, to the amount of twenty alternate sections per mile on each side of said railroad line, as said company may adopt, through the territories of the United States. and ten alternate sections of land per mile on each side of said railroad, wherever it passes through any state, and whenever. on the line thereof, the United Htates have full title not reserved, sold, granted, or otherwise appropriated, and free from pre-emption or other claims or rights at the time the lin" of said road is definitely fixed, and a plat thereof filed in the office of the commissioner of the general land office."
The treaty above referred to with the Flatheads contained this section: ·'It is moreover provided that the Bitter Root valley, above the Lo Lo Fork, shall be carefully surveyed and examined, and if it shall prove, in the judgment of the president, to be better adapted to the wants of the Flathead trihe than the general reservation prm,ided for in this treaty, then such portions of it as may be necessary shall b<1 set apart as a separate reservation tOI· said tribe. No portion of the Bitter Root valley above the Lo Lo Fork shall be opened to settlement until said examination is had. and the decision of the president madf' known."
As above stated, this sun -:;y was made, and in 1871 the president decided not to make said lands a "reservation for said Indians:' From these facts it is evident that these lands never were embraced in what is termed an "Indian Reservation." They were publie lands, which, by the terms of the treaty with the Indians named, the president might devote to such a reservation. In the case of Phelps v. Northern Pac. R. Co., reported in 1 Dec. Dep. Int. 38J, Secretary Teller, of the interior department, rendered a decision upon the very point at issue in this case,· and held that these lands in the Bitter Root valley did not pass to plaintiff in its grant. He baSeS his decision upon the ground, in part, that the lands were at the time ()f the grant to said company reserved, and adopts this language from the case of Leavenworth, L. & G. R. Co. v. U. S., 92 U. S. 733: ''Every tract set apart for special uses is reserved to the government to enable it to enforce them." There are other declarations in this same opinion last named which appear tome to have a great bearing upon the
, 'n:DERAL REPOR'rER, vol.
58.
pb1il:4;;here :ll1he!gTant to plaintiffw:as of Ilpublic lands." The of these te1'ms is very important in considering this question.'! ,Have they a defined meaning in the legislation of congress conpublic domain? In that decision, upon this point, the suprei:ne'court said:, . '}But 'onlY pUblio J.8:ndsowned absolutely by the United States are subject tosune): and division ,Into. sections; and to them alone this grant is applicable. <J;tiembraces suchascQw<l be sold and enjoyed, and nQt those which the to treaty were left free to occupy."
"Sfuoa 'land system was Inangllrnted It has been the settled polley of the government to sell the public lands at a small cost to individuals, and for the 2tJ. years to grant thelli to states In large tracts, to aid In work of Intel" na1 IItiprovemeIlt;.But tllese grants have always been recognized as attachIng 0nl1.to so much of thepubllc domain as was subject to sale or other dis110831, aqthough. tlJ,e roads of 'l;i)any subsidized cQmpanles passed througb ", of Bardon ,..Railroad Co., 145 U. S. 535, 12 Sup. Ot.. Rep. 85,6, ,the l!lUPreme again reviewed this question. In the opinion, Justice Field, spea.king for the court, said in relation of the very grant Under conside.ration:of alternate of pUblic land,and by 'publlc land,' 8& lQDgsettll;lp, meant such land as Is open to sale or other disposition, under general laws. All land to which a.ny claims or rights of others have attached does not fall within the designation of public lands."
The eourt here was considering a railroad grant, which contained the lands/' and those, transferred to the railroad company. Again:
Again, that justice, referring to the fact that he, with, members court, had dissented from the decision in .the Leavenw()l1!hCase, supra, said: "And this writer, aftera"tDuch larger experience In the consideration of pUblic lilDd grants since that time, now readily conceded that the rule of conthat, l:ij. the absence of any express provision indicating otherwise; a grant of public lands only applies to lands which are at the time free from'eXtstlng claims, Is better and'safer, both for the government and to private parties, than the rule which would pass property subject to the liens and $Ims of others·. ,. latter construction would open a wide field of lltlgatloll between the and third parties."
gI'l!fltees .
In the case of Newhallv. Sanger, 92 U. S. 761, the supreme court said the words "public lands" are habitually used in our legisla,tion to descl'lbeauch as are subject to sale or other disposal, undel' general laws. The conclusion' reached by these decisions is that only such as are public tlands at the date of the grant, the same being one in praesenti, pass to the company;ltnd that all lands which a.re notsubject to disposal, under the general laws of congress, are not public lands; and that lands to which any claim or -right has attached are not subject to such disposal as long as it exists. In ,this case the lands of ,the Bitter Root valley were, by treaty with the>Flathead Indiallll, reserved from settlement, and consequently from' sale or under the general pre-omption or homestead .laws. . If they could not be settled upon, they would not come Within such laws. Then the Flathead Indians were allowed tc
NORTHERN PAC. R. CO. V. HINCHMAN. OCCU!IY
527
such lands until the president should determine whether or not they were better adapted than the general reservation provided for in the treaty for a reservation for such particular Indians. It should be stated, perhaps, that the treaty here referred to was not one entered into alone by the Flathead Indians, but by them and two other tribes. The general reservation was one for all these tribes. It is evident, and I say a matter of public kno·wl· edge or history, that the Flathead Indians desired a separate reservation for themselves in the Bitter Root valley, and whether they should have this was left to the determination of the president by the terms of the treaty. What would be the fate of this section was left in suspension, awaiting this action of the president, under the treaty, and it was in this condition when the grant to plaintiff was made in 1864. It was not until 1871 that the president madE:: his decision, and these lands thrown open to general settlement. In the light of these decisions, it can hardly be maintained, under the facts presented, that these lands in the Bitter Root valley were what is termed "public lands" at the date of the grant to the plaintiff. They did not, therefore, pass to plainti.:li thereby. It is claimed that the decision of the supreme court in Buttz v. Railroad Co., 119 U. S. 55. 7 Sup. Ct. Rep. 100, is against this view. In the case of Bardon v. Railroad Co., supra, the supreme court distinguishes that; case from one lil\:e this. In that the land was a part of what is termed, generally, "Indian Country." 'rhe Indians had the general right of occupancy upon the same, not by virtue of any treaty with them, or on account of an'y legal obligation entered into by the United States, but in accordance with a general rule or usage, which has for years been acquiesced in or conceded. And then the law itself, making the grant, contemplated that these lands should pass, as it entered into a stipulation or agreement therein to extinguish this right of occupancy for the benefit of plaintiff. When this wa.") done, the land would become subject to sale and pre-emption and entry, under the general laws of congress. In this case, however, the land had been placed in a condition in which an Indian reservation might be created out of them by the action of the president. If a reservation should be created out of them, the Indians would not occupy them by ,irtue of the general right of occupancy. conceded to be in them, but by "Virtue of a tre'dty with the United States, which would have the force and effect of a law. It is evident the above stipulation did not apply to lands incumbered as these were by this treaty. If so, the law would, in effect, abrogate that provision of the treaty which left it in the power of the president to establish a reservation out of these lands. How could both stand? By one, the president would have the right to establish a reserva· tion which, according to the decision in the Leavenworth Case, supra, would exclude the land from plaintiff's grant; by the other, the government was pledged to cancel this right to have a reservation established, and bring the lands within the terms of the plaintiff's grant. There is, however, another point presented in this case for consideration, which leads me to 38 satisfactory a conclusion, andl per·
528
FEDERAL REPORTER.
haps, a more satisfactory one, in regard to this case, than .the one just considered. On the 5th day of June, 1872, congress a statute in relation to the Bitter Root Jands, a part of which is as follows: "Sec. 2. '£hat, as soon as practicable after the passage of this act, the surveyor general of Montana terlitory shaII to be surveyed, as other public lands of the United States are surveyed, the lands in the Bitter Hoot valley lying above the Lo Lo Fork of the Bitter Root river, and said lands shall be opened to settlement, and shall be sold in legal subdivisions to actual settlers only,-the same being citizens of tht'! Unitp.d States, 'or having declared their intention to become such citizens, said citizens being heads of families over, Jvventy-one years of age,-in quantities not exceeding one hundred and'siXty acreS to each settler, at the price of one dollar and twenty-five cents per acre, payment' to be made In cash within twenty-one months of date of Settlement or of the passage of this act. 'rhe sixteenth and thirtysiXth seetioJ:!.S of saidla,ndsshall be reserved for school purposes, in the manner provided by law. in said valley may be reserved and entered as provided by law: prov:lqed, that no more than fifteen townships of the lands so' surveyed shall be 'deemed to be subject to the provisions of this act: alldprov:lded,fUrther, thatfnone of the lands in saId valley, above the Lo Lo Fork, shall, be,open to liIef;tlement under the homestead and pre-emption laws of the>United States. AD; <8.CC01mt shall be kept by the secretary of the interior of the proceed'S of smd lands, and out of the first moneys arising therefrom there shall be reserveiHtnd set apart for the use of said Indians the sum of fifty thousand dollars,: to' be by the president expended in annual installments, in such lIJanner.as,tll his judgment, shall be for the best good of said Indians, but nO' more than, fiyethousand dollars shall be expended in anyone ' '. ji
:renr."
.
>-
The third section of said act, provides that any of said Indians who shall, at the passage of the, act, be actually living upon and cultivating any portion of said lands, could pre-empt the same, without cost, to the extent,of 160 acres. l i St. U. So p. 226. This law, as we have seen, excluded these lands from the operation of the preemption and homestead J.a,ws. All the lands, odd and even sections, are to be sold to actuabsettlers. The improvements required under the provisions of section 2259 of the Revised Statutes are not necessary. The oath prescribed in section 2262 of said statutes is not necessary. The time for the payment of the purchase price is different· from that made under the pre-emption law. Many differencelS between this. and the pre-eJIlption laws might be noted. The Indian8 actually living upon any piece of land, not exceeeding 160 acre&, might purchase the same without payment of the price of $1.25 per acre. This right was not confined to .even sections. The sale of these lands was to be a matter of a special account to be kept by the secretary of the interior, an,d the money derived from these sales, to the amount of $50,000, was to be paid to the Indians. In view of all these matters, it is apparent that by this statute these lands were appropriated to a particular purpose, and one which was inconsistent with any grant of th'e same to the Northern Pacific Railroad Compa.ny. The Indians, it jsagreed, availed themselves of the provisions of this act, and clai,med land under the same, and land upon odd sections, to the amount of 3,240 acres, and patents have been issued to them therefor, boY virtue of an act of congress, entitled "An act to provide for the sale of lands patented to certain members of the Flathead bu,nd of Indians, in Montana and for othel" purposes," approved l\farc4 2, 188tl, (25 St.. U. S. p. 871.) It has been
5'29
provided that those very lands, with others, shall be sold, and a clear title thereto given to the purchasers, and the proceeds paid to the particular Indians to whom such patent has issued. The practice in the land department, and this subseq uent act of congress, show clearly the intent of congress in passing the act of June 5, 1872, and that it was to devote these lands to a particular object. The question is here presented, could congress do this? Could it divert lands .within the limits of plaintiff's grant to another purpose, admitting that they were public land'l, and subject to the grant at the date thereof? Plaintiff urges that congress had no such power; that the grant to plaintiff was in the nature of a contract, which, when accepted and complied with, could not be abrogated. Let this be conceded. First let us examine as to the nature of this contract. In it there is this provision, after the general terms of the grant: "And whenever, on the line thereof, tlle United Slates have full title, not reserved, sold, granted, or otherwise u:ppropliated, and free from pre-emption or other claims or rigbts at the time the line of said road is definitely fixed, and apl:lt thereof filed in the office of the commissioner of the general land office."
As the land belongs to the government, no one could reserve, sell, grant, or otherwise appropriate any of the lands within the limits of plaintiff's grant but the government. If any of the lands are sold, granted, or otherwise appropriated at the time of the definite location of the road, and the filing of a plat thereof in the office of the commissioner of the general land office, they do not pass to the railroad company. This view is sustained in Railway Co. v. Dunmeyer, 113 U. S. 629, 5 Sup. Ct. Rep. 566. It is evident, then, that in the very grant to plaintiff the right was reserved to the government to reserve, sell, grant, or otherwise appropriate any of the lands which might fall within the limits of the same, up to the time of the definite location of plaintiff's road, and the filing of a proper plat of the same. It is not necessary to go into a full discussion of the nature of plaintiff's grant. The supreme court, in recent decisions, has defined this sufficiently. It was a grant in praesenti, in the nature of a float, which remained so until its road was definitely fixed, and a plat thereof filed in the office of the commissioner of the general land office. When that was done, the grant received precision, and the righti5 of the plaintiff became vested. It is not consistent with any reasonable intention on the part of congress that, in making the grant to plaintiff, it, during the time the same was a float, should debar itself of making any disposition of any kind of any lands which might fall within the limits of plaintiff's grant. The language of the grant would clearly indicate otherwise, and the practice of the government has been otherwise. There has been no dispute up to time, but, until the generl',lJ route of the road was establislled, these . lands, which finally fell within the limits of plaintiff's grant, were subject to such disposal, and to pre-emption and to homestead claims. Subsequent portions of the act provide for giving lieu lands in place of those w.hich might be disposed of in any way, or be madtl v.53F.no.5-34
F:I!:I>E:&AJ.· REPoR'rE:&, vol.
53.
su'tiJeet"fupre-emption·orother·claims orrightsf up to tion 'CJf the route of plaintiff's road. : . Plaintiff seems to claim that the sixth section of said act should be considered in this matter. The portion claimed to have a bearing upon this question is as follows: "That the president of the "Gnited St..'ltes shall cause the lands to be surveyed for forty miles in width, on both sides of the elitire line of said road after the general route shall be fixed; and the odd sections hereby. granted Rhall not be liable to sale or entry, or pre-emption before or after they are surveyed, except by said company, as provided in this act." . '
case of· Railroad Co. v. Sanders, 46 Fed. Rep. 239, 47 Fed. Rep. 604. Up to this time I have had no occasion to change the views there expressed.' I still caIinot comprehend how, when the statute de. scribes, as reserved from sale, entry, or pre-emption,.1ands granted, the tre$ervation can attach to any specific lands until the lands granted are designated or known. If there is ambiguity to be found urtheHt:ij.guage used, it'umst be construed against the claims of plaintiff;'But for the purposes of this case let the contention prevail, and the reservation here provided for applies to the odd sections of land :found within the limits of 40 miles on each side of the general route of plaintiff's road as' fixed, without any reference as to whether they should turn out to be granted lands or not. It 'will be seen the terms'of the section are "sale," "entry," and ''precemption.'' These have a' determiIied meaning. Railroad Co. v. Dunmeyer, supra. In thea.bove ,case of Railroad Co. v. Sanders, supra, this court took occasion to consider these terms, and found that, under the decisions of the supreme court, they applied to, the sale, pre-emption, and entry of lands under and by virtue of the general laws of congress. Lands may be devoted to purposes which would not work a disposal of the same undev: any of these terms. The establishment of a military reservation' or an Indian reservation, or the disposal of a portion of the same, as in this case, to raise a fund with which to settle a dispute with Indians, and preserve the peace of the (lountry, would not be prohibited by any of· these terms. This view is supported; also, by the case of Railroad Co. v. Dunmeyer, supra. In that case there was presented a statute which had reserved from pre-emption, private entry, and sale on the general line of the road of that company the lands ,within certain boundaries. Subseqnently this statute was amended,and the words "pre-emption" and "private entry" were omitted. 1'he court held that the reservation in this amended act could apply only to a sale of the property under the general laws, ann did not apply to a disposal of them under the pre-emption or homestead statutes; in other words. the reservation could not be made to cover any other mode of disposal of the public lands than that named therein. . The fact that in 1874 congress passed a.n act which extended to all settlers on said lands who might desire to take advantage of the . same (the homestead act) would not have the effect to take them from the special appropriation thereof, and restore the same to the same condition as the mass' of thepublie domain. I do not know
.!, have heretofore placed my construction upon this section in the
UNI,TED, STATES V. FOX.
531
what interpretation the land department has given to tlus act. I think it might be limited to settlers upon these lands at the date of the passage of the act. But the determination of this point is not at all necessary in this case. Whatever interpretation might be put upon it, the lands still remain subject to the provisions of the statute of June 5, 1872, and any portion of the same was subject to be sold at $1.25 per acre, and the proceeds devoted to this special fund. It might be that none of these lands would be taken under the homestead act. Until they should be so taken, that statute of June 6th covered and appropriated them. The fact of taking any portion of said lands as a homestead would not certainly have the effect of restoring the same to the same condition as the mass of the public domain. In the case of Turner v. Missionary Union, 5 McLean, 344, it was held that the devoting of lands to be sold for the benefit of certain Indians-that is, the proceeds of the sale were to be given to them-was an appropriation of such lands, and withdrew them from ,general location and pre-emption rights. I find, after some consideration of this matter, that the land upon which defendant made his settlement, and which is in dispute herein, with others, was appropriated by an act of congress to another purpose than that of building, or aiding in building, plaintiff's road; that congress, under the terms of the grant to plaintiil', had the right to do this, and violated no contract with plaintiff by so doing; that this appropriation to the special purpose named existed when the definite route of said road was fixed, and a plat thereof filed with the commissioner of the general land office, and hence did not pass to plaintiff, and it had no title to the same at the commencement of this action. This conclusion, with the one that the lands were not public lands at the date of the grant to plaintiff, and hence did not, fOl that reason, pass to plaintiff, warrants me in finding for defendant. I therefore order that judgment be entered against plaintiff and for defendant; that he is entitled to the possession of the premises described in his answer; and for his costs in this action expended.
UNITED STATES v. FOX et al.
(Distlict Court, E. D. Pennsylvania. January 13, 1893.) No.3. 1. CUSTOMS DUTIES-ENTRY AND ApPRAISEMENT-RELIQUIDATION.
The gen('ral rule that UlJon the re-examination and reliquidation of duties the packages of goods must themselves be present, does not apply in the case of lenses for optical instruments, when there is no question as to their value, and it appears that a. single specimen is a perfect representation of the whole importation.
SAME-IDENTITY OF SAMPLES.
In an action by the government to recover duties from the importer, which action is based on a reliquidation, the fact that the appmiser who made the re-examination cannot at the trial identify particular samples as belonging to particular invoices is immaterial when the goods consist , of lenses for optical instruments, which are exactly alike in all the intestimony further shows that at the time of maki,ng the revoices, and