et al. l
CUSTOMS DUTIES-VALUATION-SILK SPOT AND DOTTED NETS.
Silk spot nets and dotted nets are dutiable at 60 per cent. ad, fJaTorem, and not at 50 per cent. ad, fJalorlJm, under section 8 of the act of June 80, 1864.
In order to determine the commercial meaning of a term in tariff acts. it is not the meaning used in transactions between the retail dealer on the one side and the indiyidual purchaser at retail on the other that is to be consid· used between parties who are, on both sides of the ered; 1 ut the transa(,tion, engaged In that particular occupation as the business of their lives. (8g11ab'U8 by the
At Law· . Action by George A. Morrison and others against Charles E. Miller and .Arthur, collector of customs, to reothers, as executors of Chester cover customs paid. The· plaintiffs, Morrison, Herrmann & Co., imported into the port of New York in August, September, and October, 1873, certain nets made of silk andoi silk and cotton; the silk in the latter being the component material of chief value. They were classified for duty at 60 per cent. ad valorem, under the enumerating clause of section 8 of tho act of June 30, 1864. The plaintiffs, on the other hand, claimed that tberate they should properly bear was but 50 per centum ad valorem,under the last clause of the same section, imposing that rate lipon "all manufactures of silk; or of which silk is the component material· of chief- value, not otherwise provided for;" and brought the action to recover the difference between 50 and 60 per cent. All further facts .appear in the. charge. Edward Hartley and Benjamin Barker, Jr., for plaintiffs. Stephen A.Walker, U. S. Atty., and Macgrane· Ooxe, Asst. U. S. Atty., :for defendants.
LACOMBE, J., (charging jury.) These goods in suit are covered concededly by one or the other of two clauses in the tariff act. The one clause contains an enumeration of a great many articles, made of silk, -as follows: "Silk vestings, pongees, shawls, scarfs, mantillas, pelerines, ,handkerchiefs, veils, laces, shirts, drawers, bonnets, hats, caps, turbans, ehemisettes, hose, mitts, aprons, stockings, gloves, suspenders, watchchains, webbing, braids, fringes, galloons, tassels, cords, and trimmings: sixty per centum ad valorem." The other is: "Manufactures of silk, or C?twhich silk is the compobent material of chief value, not otherwise ··provided for: fifty per centum ad valorem." First, as you will perceive, congress enumerated withconsidel'able exhaustiveness articles known to "'it and kt'lown to be made of silk,and affixed to them a duty of 60 cent.; and then they enacted a clause covering any silk article not prO.
lPublication delayed by failure to obtain copy of opinion at time of delivery.
MORRISON V. MIl:;U::R.
vided for in the first clause, rand to that second class they affixed a duty of 50 per cent. In order to recover, the plaintiff must satisfy you by a fair preponderance of proof that the articles here are not included at all in the enumeration of the first clause, which I have read,-that they are not either veils, laces, or webbing. The question, then, to be determined in· the first place is as to the sense in which congress has used this language. We all, in common speech and in common writing, repeatedly use words to express things. If we were challenged as to what they meant, or if some one who heard what was said, or read what was written, wanted to know what was meant, we would appeal at once to our general knowledge of the received use of the word in the English language, and, if such general knowledge were not sufficient to answer the purpose, we would turn to a standard dictionary to find out what the word meant. Let us first apply this rule to the word "laces." "Lace" is defined by Webster as being "a fabric of fine threads of linen, silk, or cotton, interwoven in a net, and often ornamented with figures; a delicate tissue of thread." Now, it is plain upon all the evidence, and even without the evidence upon an inspection of the goods, that they are covered by that term j and, were it not for another rule of interpretation which the courts apply to tariff acts, there would be no question at all for you here. This other rule. however, may be thus stated: Inasmuch as the tariff acts deal with imports, and are concerlted with matters of trade awl commerce; and inasmuch as merchants and Importers quite frequently distort the original meanings of worda, either by expanding them, or by restricting them, so that in the trade they mean not precisely what they do in common speech, it is assumed· that congress, when dealing with trade, uses the technical words of trade with the same meaning that the trade uses them. The plaintiffs, in order to take themselves out of the operation of this first clause, containing the long enumeration of articles, undertake to show that by an application of this principle these nets in controversy are taken out of the enumeration, and are no longerto be covered by the word "laces." They have introduced a great deal of testimony, which is not disputed at all by the other side. The witnesses for plaintiff and defendant alike agree that these goods are nniversally known as "nets," as "spot nets," and as "dotted net." That, however, is not all that the plaintiff'must do. To illustrate: Wheat is a grain; 'and no amount of testimony that winter wheat was never bought and sold in trade by any other name tban "winter wheat,"-that that was the only name that was used with regard to it, and that it was never known as grain in trade,-would take it 01;lt froma ..classification of "grains," unless it was also shown that the word "griiin" had been distorted from its naturahneanibg, and was used by the trade in a restricted meaning, covering cereals other than· wheat. So here, in order to take this class of goods, which, under the definition in the dictionary, is covered by the word "laces," out of that class of goods, he must satisfy you by a preponderance of proof that the word "laces" or "silk laces" (which are the precise words used here) at the time of the passage of this act had, in trade and commerce in this country, a particular technical trade meaning, and that that particular
trade meaning excluded nets. Unless he has satisfied yon or that, he is not entitled to recover. I shall not undertake to recite what the evi. denceis upon that subject. You have beard it, and are entirely competent, and it is your peculiar function, to weigh the testimony and evi· dence of the respective witnesses; and I have no doubt that exactly what they have said is as present to your mind as it is upon the notes which I have here. The question, then, which you have to decide is simply this: Had the words" silk laces" a definite trade meaning, different from its meaning in the ordinary uses of the En.;lish language as spoken here when congress passed these acts? If you arrive at the conclusion that it had, then, as so used, did it exclude "nets?" If you answer both those questions in the affirmative, your verdict must be for the plaintiff. If you cannot or do not answer both of those questions in the affirmative, then your verdict must be for the defendant, I have had several requests to charge passed to me by the plaintiff. The first three I decline to charge, other than as parts of them are al. ready charged. The fourth is this: "That the opinion of witnesses as to whether or not laces.or nets are the be confined to the business of buying and sell· same commercial article, ing and dealing with them as articles of commerce, and considerations derived from sources unconnected with the business of buying and selling, or trade, are of no value in determining that question." I so charge you. That is to say, when we want to find out what the meaning of a word is generally; we appeal to our own knowledge of the English language, or, if we find that that fails us, we go to the dictionary; but if we wantto find a specific trade meaning, we obtain that trade meaning from testimony of those who are in the trade, and from the knowledge that they have acquired by buying, selling, and dealing.
. Mr. Chxe. I ask your honor to charge the jury that in so trade terms they shall consider the terms as used by importers arid large dealers, and not as used by the retail dealers on the one band and individual purchasers at retail on the other. The Court. It is not the small retail trade-where the tradesmen On the one side meets on the other with the individual buyer, who knows large-that you are to consider; it is trade nothing about the as conducted between parties who are, on both sides of the transaction, . engaged in that particular occupation as the business of their lives.
The jury then retired, and subsequently rendered a .vllrdict fOl' the defendant·.
et al. "'.
Collector of Customs.
(Circuit Oourt, B. D. New York. October 29,1888.)
CuSTOMS DUTIES-CLASSIFICATION-GLUCOSE AND GRAPE SUGAR.
Glucose and grape sugar are not dutiable as "burnt starch or gum substi· stitute," as provided for in Rev. St. U. S. II 2504. Schedule M. but are properly assessed as non-enumerated manufactures, under section 2516. The question whether a particular importation, on which a duty has been imposed. is properly included in a particular name of a substance as employed in the tariff laws, is for the jury, and not the court. The definition of the terms "gum substitute, or burnt starch," as used in the tariff law, (Rev. St. U. S. II 2,304,) is for the jury, where there is evidence of a trade usage of one of the terms; the word "or" in the statute possibly having been used to refer one phrase to the other for explanation.
BAlfE-AcTION TO RECOVER EXCESS-PROVINCE OF JURY.
SAME-MEANING OF TERMS.
The terms "'gum substitute" and "burnt starch" are to receive the meaning given them in ordinary commercial operations, unless a trade meaning different from that in ordinary use is established by a preponderance of evidence. Rev. St. U. S. §2499, imposing a tariff on articles not theretofore enumer· ' ated, "which bear a similitude, either in material, quality, texture, or the use to which they may be applied," to any enumerated article, does not require that the resemblance should be in all of the four particulars mentioned; but the similitude must be a substantial one, importin,lt not merely adaptability to sale as a substitute, but referring rather to the employment of the article, or its effect in producing results. The presumption is that the collector of customs acted rightly in' imposing a duty on imports, and the burden is on one contesting the validity of the duty, to show that it was not properly imposed under the tariff laws.,
SAME-PRESUMPTION-AcTS OF ()OLLECTOR.
At Law. Action to recover back alleged excessive duties. _The plaintiffs, Paul Weilbacher and another, in the years 1880 and 1881 imported into the port of New York certain importations of glucose and of grape sugar. These goods were classified for duty by the defendant, Edwin A. Merritt, collector of customs, at 20 per cenLad valorem, as non-enumerated manUfactures, under section 2516 of the Revised Stat-, utes. The plaintiffs, however, claimed that the proper rate was but 10 per cent. ad valorem, on the grounds: First, that the importations were actually burnt starch and gum substitute, and therefore dutiable at the latter rate, which is imposed upon burnt starch or gum substitute by ScheduleM,' § 2504, Rev St.; or, second, that they bore such a similitude in the material, quality, texture, and use with burnt starch or gum substitute that by the operation of section 2499 of the Revised Statutes they were properly dutiable at the rate borne by burnt starch or gum substitute. This action was brought to recover the difference . between 20 and 10 per cent. The plaintiffs adduced testimony tending to show that both glucose and grape sugar, on the one hand, and thegum or burnt starch of commerce, were starch .products, and were produced by the application of heat to starch; that chemically they were alike; that dextrine, which is gum substitute, as it appears chemically