(OirlYUit (Jourt, 8. D. Newyqrk.
May 28. 1889.)
By the use of the phrase manure. and all substances expressly used for manure." found in the free list of the tariff act of March 8. 1888. (22 U. S. St. at Large. 488.) congress has plainly said that all imported substances. whether specially provided for'60 nomine. or covered by any general language descriptive of their ori&in or qualities. which subserve the purpose of enriching the soil. and thus Increasing the crops to be raised upon it, should be free. ; . ,
.An article. though in fact "sulphate of potash," and at and prior totiIe passage' of the said tariff act of 1883 generally and sold in trade and com· ,. merce of this country under the name of "sulphate of potash." is. iIi cases of the importations thereof which are actually used in the manufacture of fertilizers·. not dutiable under thQ provision for "sulphate of potash " contained in sohedule A of the same tariff act/ but is free of duty under the provision .. for "guRno,' manures. and all substances expressly used for manur,e," contained in the free list thereof. ." ' .
!,AtLaw. " On June 6, July 25, and Octob.er 17, 1887, the plaintiffs made three impottationsfrom'Hamburg, Germany, into the port' of NewYorkofa certain article of merchandise invoiced as" manure salt." The defel'idant, as collector of customs, pursuant to S. S. 7452" rendered April 7, :classified tHis article for duty as "sulphate of potash," under the provision for l'sulphate of potash," contained in Schedule A of the tariff Il,ct of March 3, 1883, (22 U. S. St. at Large, 488; Heyl, New, 70,) and exacted of the plaintiffs' duty thereon at the rate of 20 per centulll ad fJalorem, and, in the sum of $2,018.60, which, with interest up to the date of vel'dict,. amounted to the sum of $2,225.84. Against this classification and exaction the plaintiffs duly protested, claiming "that said article. is made and imported' expressly for use as manure; and is expressly so used, and is entitled to free entry under the provisions for all substances expressly used for manure in the free-list act, March 3,1883; second, we separately protest against your assessment ·of 20> per cent. ad 1J!1l. on said article as sulphate of potash, claiming that while said article may probably contain' sulphate of potash' to a greater extent than any other of ,its component elements, that it is nevertheless in tact and comm:erciallya diflel,'ent article, being a compound containing other ingredients besides.! sulphate of potash,' and commercially known as 'manure salts,' and used expressly for manure, and therefore entitled to free entry by the provision of the free-lil;t act of March 3,1883, (T. 1. 505.") The plaintiffs also duly appealed, and within 90 days after the decision of the secretary upon these appeals duly brought their suit to recover the duties exacted as aforesaid. Under the tariff act of July 30, 1846, (Schedule I, 9 St. at Large, 42,) "guano" was first mentioned eo nomine, · and made free of duty; and again under the act of March 2, 1861, (section 23, 12 U. S. St. at Large, p. 178; Heyl, Old, 154.) Under the act
'HELLER 11. MAGONE.
'of March 3,1857, (section 3, 11 U. S. St. at Large, p.192,) "substances
expressly used for manure" are first mentioned eo nomine, and such substd.nces made free; and again under said act of March 2, 1861, (section 23, Heyl, Old, p.165.) Under the act of July 10,1870, (section 22, 16 U. S. St. at Large, p. 262; Heyl, Old, 638,) "guano and other animal manures" were free. Under section 2505,U. S. Rev. St.· (Hey" Old, 1609,) "guano and other animal manures," and, Heyl, (Old,) 1767, "substances expressly used for manure, '.' were free. Under the act of March. 3, 1883, (Heyl. New, 505,) "guano, manures. and all substances expressly uRed for manures," are free. The tariff act of 1883 also makes free the following articles, most of which wereJor the first time provided forea nomine in various tariff acts passed since the passage of the act of 1846: "Albumen in any form or condition." (Heyl, New, 496;) "blood dried," (ld.·501;) and for manufacture· of phosphate and fertilizers," (Id. 503;) "carbon. animal, fit for fertilizing only," (Id. 504;) "hoofs," (Id. 512;) "kiersite," (Id.615;) "kyanite, or cyaljlite, or kainite," (Id. ·616i) "phosphates, native, for fertilizing PPposes," (Id.626;) "muriate of potash," (ld. '627;) "nitrate of soda," (Id.630;) "brimstone,not specially enumerated or provined for in this act," (Id. 632.) This act makes dutiable, eo nomine, "sulpha.te of ammonia," 37,) and (Id. 269.· ) It also makes free, l>esides"bolle-dust and bone.ash. for manufacture of phosphate .and fertilizers," (Id. 503;) "barks. cinohona and other barks used in the manufacture <;Jf (Id. 521,}and "glass plate or disks, unwrought, for use in the manufacture ofoptical instruments." (ld.708.) DpOll the trialitappeared from the foreign analysis given on the invoices thereof that tIle plaintiffs' importations of the article in suit were composed offrom 90.6 pel' cent. to 95.5 per C(iot. of" sulphate of potash," and by the analysis of government chemist that they were composed of from 91..5 per cent. to 95,67 per cent. of such sulphate; and from the preponderance of the testimony given by both plaintiffs' and defendant'switnesges that on and prior to March 3,1883, tbis kind of article was gene:rally boughtiand sold in trade and commerce in this oountry .under the name of "sulpbate of potash. " It also appeared tbat the plaintiffs' importations of tbe article in suit had .been used in the manufacture of fertilizers, and tbat tbis kind o( l;trtic1e was generally so used, although it was to some extent used in the manufacture of bicbromate of potash, alum, and a few· other articles.! It also appeared that there'were in trade and commerce in this country on and prior to March 3, 1883, certain articles bougbt and sold, and oommercially known as "crystalized SUlphate of potashi" t;Pat they were pure, or substantially pure, "sulphateo£; potashi" that they WElre .sold in the crystalizedor pOWdered .form by druggists and ill .chemicals; that they were used to some extl;lntin -laboratories, and to a very limited extent for medicinal purposes; ,but that they were not ,in by dealers ,in fertilizel"1f I1ndfertilizing materials, nor were -as fertilizers, orin the manufacture of fer1;ilizers.!t further:a,ppesl'ed ,that among. other matetials, "blood." :"album.en," "egg ," s'tarchi! (j brimstoDEh"
age, "'''dried blood," "aiotihej" "sulphate of ammonia," "nitrate of soda;" of ':!>otash," .," "mineral phosphates,." and phospHates" were fertlhzlD¢n'1lttenals,. and generally used m the manufacture offertilizei's. " Both sides haVing rested, 'the defendant's couhsel moved the court to direct the jury to find a verdict for the defendant-First. On the ground ithat the articlein suit is providedrfor eo nomine in the tariff act of March p, 1883,asiH sulphate of potash." Second. On the ground that this artide is not provided for under the ptovision of said .tariff act for" all substances' expressly used for inasmuch as by the provisions therein for "bone-dust and bOlie-aslifor manufacture of phosphate and "barks, cinchona or other barks used in the manufacture of quinia'," " glass 'plate or disks, unwfought, for use.jn the manufacture of optical instruments," and other like provisions, it is evident that the expressly used for manure," means subused for or aSffianure, and, not used·in the manufacture of thanureor fertilizers. ' ,Third.: On the ground that this artiCle is of potash;" and is proVided for in said tariff act eo nomine as "sulphate of potash," a specific expression; and, if otherwise covered by the general expression, "all substances expressly used for manure," is n.ot'therefore provided for under such general expression. Fourth. On 'the ground that plaintiffs have not proven facts sufficient to entitle them toreoover.ln support of this motion the defendaut'scounsel argued': :First;' That the llrticlein suit was" sulphate of potash," generally used in the of fertilizers, and provided for eo nomine in the tariff act of 1883'. Second. That if thisarlicle had been oovered by and em'braced witbinthe provisions of the statutes passed prior to the act of 'March 3, 1883'; for "substances expressly used for manure, " it was expressly exempted from the provision for" subl;ltances expressly used fOf manure!' in the act of March 3, 1883, by being for the first time provided for in said act of :l883, eo nomine, as "sulphate of potash;" and that, ali,this at'ticle'wEls provided for eo Mmine, it could not be admittedthat the SRmeact which in one section subjects it to duty should innsubsequerit section exempt it from duty l.1Dder such a general expression. Such inconsistency is n6t to be attributed to congress. Third. That if it be conceded for the sake of argument that the gl;Jneral ex prestlsed fur manure," in ,the Jree list of the Of 1883, be sufficiently broad to oover the article in suit, then, as it (o'o'e article) is 'specifically provided' for in that act a.s'·' sulphate of potsuch specific designation determines its classification for the purlp6ses of the tariff act, and the general, expression (for many articles) 'does not 'avail. 'Arlhur v. Lahey, 96 U. S. 112,and ca8es there cited. 'Pourlli." But ,the provision," all substances expressly used for manure," :does not cover this merchandise; , 'The meaning of this expression is 'sll'bstariceswh'lch are usedifor ot"lts:tnanUr8j not substances used in the 'mariufMture lor m"nura. \ :That this is the meaning of this expression is 'evidenced by the following provisions also found in free list of the act of 1883':" Bene-dust and, bone-ash, .for manufacture ,Of phosphate
,HELLER V. MAGONE.
and fertilizers,'? (Heyl, New t ;503;) cinchona Or other barks used in the, manufaeture of quinia," (Id. 521;) Or disks, unwrought. for use in the ma,nufacture of optical instruments," (Heyl, ,708.) Jilifth. That if it had been intended by congress. to include in the general expression t "all su1;lstanc6sexpressly used for manure,n all sub,stances :use!! in the manufacture of manure or fertilizers, it would neyer have deemed it necessary to exeIDpt from duty eo nomine the following articles, .which are used in the manufacture of fertilizers: "Albumen in any fOrm or condition," (Heyl, New, 496;) "blood dried," (Id.501;) "bone-dust and bone-ash for manufacture of phosphate and fertilizers," ,(ld. 503;) "carbon, animal,,fit for fertilizing only," (Id. "hoofs,'; (Id. 512;) "kiersite," (Id. 61,5;) "kyanifu, or cyanite, (Id. 616;) crude or native, for 626;) ,. muriate of potash," (Id., 627;) "nitrate of soda," (Id. 630i) "brimstone, etc.," (Id. 632.) This argument is further strengthened by the ,fact that '\Ve finq .the following articles also used in the manpfacture ,of ,especially enumerated, subject to duty; (Id. ,269;) sulphate of atpmonia/' (Id. 37.) , ,This tllotion the court denied. The defendant's Icounsel then moved 'i$ecour:ttqsubmit the tpthe ju,ry 6n tqe qUe&tion 'of, the article in suit was a "substance expre$Sly used for tion the court denied. The court then, on motion of the plaintiffs' counsel, directed a verdict in their favor. Stephen G. Clarke, and Charles Gurie, for plaintiffs. Stephen A. Walker",U. and Asst. U. S. " . Atty·· for defendant. ' ' " , ' , ' . ' LACOMBE, J:, '(ofally.) The freqnently we are called upon to interpret statutes, the grellter likelihood there is of developing a tendency to overstrained construction., It is wholesome occasionally to turn back to first ptinciples, and to. appreciate the foreaM the old1'ule,again,reaffirmed by the illlpreme c6:uftJn Lake Co. v. 9 Sup. qt. R:ep;651, -that, to get at the thought or meaning expressed in a statute, the first resort in all cases is to the natural ofJthe words in the ,;Order ,Of t4e jn which t1W of the instru,Illent ,have pla¢ed themiand that it is a aafe assumptiqn that the framera pf an 'I1Ot meant tlxactly what they !laid., The c;lause here" (section 505 in the freelist,)rellding, "Quallo,manures, apdallsu1;>stanceS expresl;1lyused for manure," very clearly expresses. and thare.lleexps no doubt that by the use of p}uase hlf.s plainly thatt\ll importedaubstances, whether specially provided for .eo. nomine" or (lOVered by any. general language descriptive of which Bubsarve the of. el;lriching tb,e'lWil;.and th,us.inereasing the crops to be raised upon it,: should he free.·Thatis the plah) i mean,ing of itcstllJlds, I thinkwe shOUld err if,:f;rQql spme straine<! ,and over-elaborate examination, of a great many othet: . par;tacto We should seek ,to. spell'lout,some unAerstlloodingor , of, b.at weD).ight possiblyipfer:wa& the pf C?ngtess.
We are entitled to take their intent as expressed by the plain language they have used. It is very true that the use of the word "ex, pressly" may make this paragraph difficult of application in very many 'cases; iI} fact' in all cases,so the collector is concerned; but it gives us no trouble in this particular ,action, because there is abundant evidence here to warrant the holding that these particular importations were expressly used for manure. They have been traced from their importers into the hands of individuals whose sole business is the preparation of" fertilizers," which word is a mere synonym for manure; and, should the jury draw from the testimony any other inference than that the articles were expressly used for manure, I should be inclined to set aside the verdict. ThereforeI think it is unnecessary to send the to them. The defendaht refers to the well-settled rule of interp,retationthat a specific designation will over a general one, but the claul;le which he contends to be a general' one (section 505, 8upra) is hi, :reality mOre specific than the paragraph which he insists these -Imports should be' classed (paragraph 70, "sulphate of potash,") because from the class ofarticles properly classified as SUlphate of potash itdifferentiates that smaller portion which are" expressly used for ma'in1re." I lYill therefore 'direot a'verdict for the plaintiffs in the sum of
·. $2}225.84. ' .
(Circuit Oourt, S. lJ.·Ne'IJJ York.
May 9, 1889.)
'The term "liquors, "in the proviso of the tariff act of March 8, 1888, contl'ined in S,chedule H, (T. I. 808/,) providing "that there shall be no allowance 'for break!loge, leakage, or damage on wines, liquors, cordials. or distilled spirits, "includes fermented as well as distilled liquors, and covers lager-beet.
DUTIES-CONSTRUCTION OF ACT-LIQUORS-BEER.
At Law. 'Motion 1dr direction ofa verdict. The plaintiffs, the firm of Hollender & Co., ofthe city of New York, imported by the steamer Gellert, and entered into the port of New York, in September, 1886, 226 casks of lager-beer from Munich, Bavaria, via Hamburg, lipon which they claimed a damage allowance to the amount of the entire value, setting forth in their protest that such beer was damr aged by during the voyage of importation, so as to be totally unfit for useasa'beverage, and having no commercial value whatever ,fur any purpose in its damaged condition. The defendant, collector of the port oENew ¥ork,refused to make any allowance for damage, under -Schedule H, (T.. L 308,) which decision of 'the 'collector wlls,on appeal . dUly taken, 'affirmed by the secretary of the treasury, (Syn.Treas. Dec. this suit was brought to recover the amount of suchdamlige, said importatioo having been pllid iniull hy the plaintiffsupoli':tlle· entry thereof. The. evidence showed the merchandise to