122 U.S. 211
7 S.Ct. 1169
30 L.Ed. 1149
BENZIGER and others
ROBERTSON, Collector of the Port of New York.
May 27, 1887.
R. D. Mussey, for plaintiff in error.
Sol. Gen. Jenks, for defendant in error.
This is an action at law, commenced in a court of the state of New York, and removed into the circuit court of the United States for the Southern district of New York, brought by the firm of Benziger Bros. against the collector of the port of New York, to recover back duties alleged to have been illegally exacted on importations made into the port of New York, in 1881, of articles which were entered as 'rosaries.' The duty exacted was 50 per cent. ad valorem, under Schedule M, § 2504, Rev. St. (2d Ed.) p. 473, which provides for that rate of duty on 'all beads and bead ornaments.' At the trial, the court directed the jury to find a verdict for the defendant. The plaintiffs excepted to this direction, and after such a verdict, and a judgment accordingly, brought this writ of error.
The component materials of the rosaries in question were: (1) Beads, glass; chain and cross, metal. (2) Beads, wood; chain and cross, metal. (3) Beads, chain, and cross all of steel. (4) Beads, bone; chain and cross, metal. (5) Beads, ivory: chain and cross, metal. (6) Beads, chain, and cross all of silver. (7) Beads, mother-of-pearl; chain and cross, metal. It was proved at the trial that the rosaries are composd of beads, a metal chain, and a cross, the beads being fastened on the chain at regular intervals; that a rosary is not complete without a cross; that they are used by Roman Catholics in counting their prayers; that they are carried in the pocket when not so in use, and are never used for ornament; that, in all cases, the beads are the component material of chief value; that they are dealt in only by dealers in religious and devotional articles pertaining to the Catholic Church, and are not dealt in by those who deal generally in beads and bead ornaments, and are not known to them; and that the expression, 'I say the beads,' is sometimes applied to the devotional exercises which are performed on rosaries. The witnesses for the plaintiffs testified that the articles in question are known to importers and wholesale dealers as rosaries, and are dealt in under that name, and are not dealt in under the name of beads; that dealers in rosaries also deal in the beads not made up into rosaries, but fastened together on a cotton string, which they see to parties to be made up into rosaries; that an order for beads would be understood to mean these beads, and not the ones made up into rosaries; and that the people who use rosaries sometimes call them 'beads' and sometimes 'rosaries.' The witness for the defendant testified that they are called beads or rosaries, and are bought and sold under the name of beads; that, in point of fact, they are made of beads, and are called beads and rosaries, irrespective of the material of which the beads are composed. On cross-examination he testified as follows: 'Question. What class of people call them beads? Answer. Well, I think people in New York. Q. What class of people in New York? A. A great many Catholics call them beads, and a great many call them rosaries. Q. Don't the dealers call them rosaries, and so catalogue them? A. Yes, sir.'
The plaintiffs claim that the rosaries were not dutiable under the head of 'beads and bead ornaments,' but were dutiable, under various provisions of the Revised Statutes, at 35 per cent. as manufactures of wood, bone, ivory, and shells; at 40 per cent., as manufactures of glass and silver; and at 45 per cent., as manufactures of steel.
The principle adopted by the treasury department in directing the collector to assess a duty of 50 per cent. on these rosaries was that, as they were not enumerated as 'rosaries' in the tariff act, and were composed of beads with steel, silver, and other metals, the beads being the component material of chief value, although they might not be 'bead ornament,' they were dutiable at the rate of duty imposed on beads, by virtue of the provision of section 2499 of the Revised Statutes, which enacts that, 'on all articles manufactured from two or more materials, the duty shall be assessed at the highest rates at which any of its component parts may be chargeabel.' This provision does not apply to any enumerated articles, but applies only to nonenumerated articles. The articles in question were known to importers and dealers as 'rosaries.' Assuch, they were not an enumerated article, but were dutiable, under the above provision of section 2499, at the duty imposed on 'beads.'
The cases of Lottimer v. Lawrence, 1 Blatchf. 613, and Arthur v. Sussfield, 96 U. S. 128, cited by the plaintiffs, have no application to the present case. In the former case the article in question, thread lace, was enumerated in the tariff by that name. In the second case the article was spectacles, made of glass and steel. A duty of 45 per cent. was exacted on the spectacles as being 'manufactures of steel, or of which steel shall be a component part.' It was held by this court that the article was dutiable at only 40 per cent. under the head of 'pebbles for spectacles and all manufactures of glass, or of which glass shall be a component material.' The ground of the decision was that, as there could be no spectacles without pebbles or glas , the duty of 40 per cent. was imposed on the pebbles or glass as materials to aid the sight, the steel being incidental merely, and that, in fact, spectacles were designated under the description of 'pebbles for spectacles.'