,:: :" AOL&BR ". ERHARDT.·[
;l>ct andcareiessnes8 which constituted: cofitributtve negU.gence On his :part, andileprives the plaintiff of a recoveryJnthis ,nction. engineer and. other employes engaged in· running the train :were not required to look .and see whether there was any:()ne on the except at a publio crossing, or in an incorporated city or town, or nt a depot station, or to give a siRnal ofthe approach, ofthe train except at such crossing, station, town, or city. There is no proof that the enor conductor saw Victor Farve, but ,the.proof is that see him, before or at the tin1e of the If the engineer had seen Victor Farve on the track, and had reason .to believe .that he coulil not get off the track in time to save himself, it would have .been his duty to do all he reasonably could to avoid the accident. There.fore, you.are instructed that the testimony on the part of the plaintiff, and not contradicted by any other proofin the cause, docs not entitle him to a verdict in his favor, and that you will return your verdictm the defendant.
aZ. ".ERHARDT, Collector. , ,.'
(Oircuit Oourt, & D. New York.
April 21, lSOO.l
O17STOJl'S DUTIES-CONSTRUCTION' OJ!' LAWS-CL.lSSIll'IC.lTION-FLOWBRING BULBS.
Croc)Ul. gladiolus, hyacinth, narcissus, tulip; and other bulbs, which are not dicinal and not edible, are in a crude state, and not advanced in value or condition by refining, grinding, or by other vrocess of manufacture, and are used for the pur. pose of pl,"oducinjfiowers, are not free of duty under, the provision for" bulbs.and bulbous. 'roots, * * any of the foregoing of which are n9t edible and are ina 'crudestatej and not advanced in value or condition by refining or grinding,or by ot:Qer pr:OCf/6S of manufacture, and not specially enllmerated or provided for in this act, " contained in the free-list of the act of March 3, (22 U. B. 8t. 488; Tariff Index, New, par. 686,) but are dutiable at the rate of 2O.per cent. ad valorem for "bulbs and bulbous roots, not medicinal, and not specially enumerated or proVided for in tbi$.act, " cOntained in N of the same tari1f act, (ld. par. 405.) (8IIllalYuBb'u the Oourt.) .
At Action to recover back dutiM. During the year 1889 tbe plaintiffs imported from England, France, and Holland, into tbe port of New York, certain crocus, gladiolus, byacinth, narcissus, tulip, and other flowering bulbs. These bulbs were classified. for duty under the provision for" bulbs and bulbous roots, not medicinal,' and not specially enumerated or provided for in this act," contained in Schedule N of the tariff act of March 3, 1883, (22 U. S. St. 488j .TariffIndex, New, par. 405,) and, pursuant tothis provision, duties were exacted thereon, at the rate of 20 per centum ad. valorem, by the defendant,.as collector of that port. Against this classification thilil the plaintiffs dUly. protested, claiming that these bulbs wer.e free of duty as "bulbs which were not edible, and were in a crude sf./lte, and ,])ot advanced in value or condition by refining or grinding, or other proce!jSof under the provision for" bulbs and bulbous
roots, *'-:. of the foregoing of whIch are not edible, a.ndare in a crude state,andndt advanced in vl1lueor condition by refinirigor grinding, or other process of manufacture, and, notspeciallyenumerat:ed or provided for in this',aet," contained in the free-list of the same tariff act, '(Tariff Index, New,' par. 636;) or under the provision for "plants, trees, shrubs, and vines of all kinds, not otherwise provided for, and seeds of all kinds except medicinal seeds not specially enurnerated or provided fat in the act," contained in this free-list, (Id. par. 760.) Thereafter the plaintiffs, as provided by law, having made appeals, duly brought this recover thei aforesaid, duties. Upon the trial it appeared that 'the bulbs in suit were spheroidal bodies,that had beengr.own in the ground from the crocus; ghtdiolus, hyacinth,narcisstIs, and other flowering plants; that they had the principle ·of Hfain them, we1"enot medicinal, were not ,edible, were in a crude state,' and were not advanced in value or condition by refining, grinding, or other process of manufacture; or, in othei'words, were in the same state and condition as when taken from the ground, flxcept that they had been dried and cleaned; that they were imported solely for the purpose of producing flowers; that bulbs of the same kinds and in the same state or condition, /lS these, atlj.nd prior to :M;arch 3, 1883, were and since have been ust:d'hr this cotintry sole]y for that purpose; that therEt were, at and prior to the date just mentioned, and sinCe have been, imported into this conntry certain otber flowering bul})s, such as those of the autumpale and the scilla, that were used for medicinal us well as for flowering purposes; that the bulbs of the colchii,mported for medicinal purposes, were in a dried, slicedl"1ifl2'less state orconditionj that the bulbs of the scilla, when imtot .ine¢licinal'purpqses, were ip similar state or condition; that thebulbs,O(thE) odlchicttm autumnale:and of the scilla, when imported purposes, w:ere in the saine state or con<litionas the bulbs in sl1it; thll-t there were, at and prior to the date just mentioned, and since have hee11';' both and illlported into this country certain bulbs, such as those of the onion, the leek, the garlic, and other allnim plants, that were flowering bulbs and edible; that there were, at and prior to the date just mentioned, and since have been, both grown in and importedinf.o this"countrycertain other bulbs that, although eaten in Si.beria, Kamscbatka, China,or other countries, Were noteaten in this coun. try,bufwere used here for producing flowers orfoliage. Both sides having .rested, the defendant's counsel moved the court to direct the jury t() find a verdict in his tiworon the grounds, (1) that the bulbs in suit were the :"brilbs not :fnediCinal"< provided for in Schedule N of the tariffact in question, (ld. par. 405,) as decidedhy the defendant as said collector, and (2) that the plaintiffs had not proven facts sufficient to entitle them to recover; and argued substantially in snpportof this motion that these btilbswere neither plants; trees, shrubs, vines, nor seeds, as the comman and well-known. meani.ng of these words indisputably showed, and therefore were 119t, filee. of auty under the provision for such articles contained in the free-list.of this tariff act, CId. par. 760;) that this tariffact evi-
ROLKER fl. ERHARDT.
dently provided for three classes of bulbs and bulbous roots: (a) Bulbs and bulbous ,roots, both medicinal and non-medicinal, not edible, and usually or necessarily before their use subjected to some process of grind·ing, refining, or manufacturing which, if in a crude state, and not advanced in value. or condition by any of such processes, were free of duty, (FreeList, Id. par. 636,) but which, if so advanced, were dutiable at 10 per centum afl,valqrem, (Schedule A, Id. par. 94;) (b) bulbs and bulbous roots, not medicinal, not edihle, and not before their use subjected to any such processes, which were dutiable at 20 per centum ad valorem, (Schedule N, Id. par. 405;) and (c) bulbs and bulbous roots, edible, and generally eaten, such as onions, leeks, garlic, and other like products of the alluim and other plants, which, though perhaps botanically bulbs or bulbous roots, have always been known the people of this country as vegetables, and were dutiable as such at the rate of 10 per centum ad valorem (Schedule G, Id. par. 286;) that the provision for class b, bulbs and bulbous roots not medicinal, and not edible,' contained in Schedule N, (Id. par. 405,) was more specific than the general provision for bulbs and bulbous roots both medicinal and nOli-medicinal, and not edible, of class a, contained in the free-list, (Id. par. 636;) and the bulbs in suit, therefore, were properly classified for duty, (Arthur v. Lahey, 96 U. S, 112;) that the defendant's construction of these apparently conflicting provisions for bulbs and bulbous roots rendered them harmonious and consistent; that, if any other constrnction of them were adopted by the court, there were no bulbs and bulbous roots provided for by Schedule N, (Id. par. 405,) and the court must conclude that congress had idly legislated that provision; but that, as was well settled, a meaning, if possible, must be given to every word found in a provision of a statute; and that, to give a meaning to every word of this provision, the defEmdant's constTUction must be adopted, and a verdict directed for him. The plaintiff's counsel, after abandoning all claiIils to recover under t.he provision for plants, etc., contained in the (Id. par. 760,)theD moved,the court, upon the case as presented, to direct the jury to find a verdict in their favor, and, in support of this motion, and in opposition to that-of the defendant's, argued substantially that Schedule N (Id.par. 405) provided for edible bulbs and bulbous roots, such as onions, 'leeks, garlic,etc;; that the free-list (Id. par. 760) provided for bulbs and bulbous roots not advanced in value or condition, etc.; that the bulbs in suit, of the last-inentioned description, were specially pro,vided for, and were free of duty. Edward Hartley and 1. Augustus Stanwood, for plaintiffs. Edward Mitchell, U. S. Atty., and Thomas Greenwood, Asst. U. S. Atty., for defendant. LAcoMBE,Circuit J (orally.) It is somewhat difficult to determine from alI these sections exactly in which one these articles are to be found. 'rhey are plainly covered by the Janguageof paragraph 405, "lmlbsand bulbous roots, not medicinal, and not specially enumerated" else1Vh!},re, The question is, which is the more specific,enumel"aetion, the
,one fuere'in :ebntnined,: or' theoneirl paragraph 636i, "bulbsandhulbous 'roots not edible; but in a crude state, and not advanced 'by refining or grinding,or'byother process of manufacture?" In common speech what!everismedicinal is fairly to be considered aEi non-edible; but it does follow that whatever is non-edible must be medicinal. I 'incline therefore to the opinion that paragraph 405 is ofthese two the more specific, andshal:l therefore directa:verdiot for the defendant.
flt al. V.HEDDEN,
Oourt, B. D. N'etO York. October 8O,l88t.,
S. SAME-EvIDENCE-BIAS OJ' WITNESSES. , "I'iiwelghing the of witnesses as to trade usage, the jury should consider"the,exwntto which any of the witnesses may have an interest in the resultof ',the litigation which might color their evidence.
8.'SAMt-CLASSIFIOA'l'toli':":OIL OF PETIT GRAIN-OIL NEROLI.
" ",The ,trade usage whi<ihis to detertriine the meaning of a word or words In the tariff , be,a well.known and: general one.
ClrSTO"6fli:DtrTIES"":CONSTRUOTION OJ' LAws-TIU.DE USAGE.
00 of petit grain, distUled from the leaves, tWigs, and hnmlliture fruit of the orallge tree·.was found b,v the jury to have been /ienerally kn.own alld recognized in tMUe and commerc,e in'l883 as one of the subdiVlsionsot oil neroli, (mentioned in ; the free,-list.) OPllrt.)
Action to recover duties. Pla"ntiff imported at the port of New York quantities of an essentialoll called" Qilof petit grain." This oil was distilled from the leaves, twigs, Mct in;llnature fruit of the orange tree. The colleotor assessed it for duty at cent., under, the' provision in Schedule A of the tariff act of March 3, 1883, for "all preparations known as' essential oils,' not speoiallyenumerated or provided for in this aot." The importer claimed it ,to be frl:le of duty under the provision in the free-list of the same aot for "oil nerolior flowers." There was a confliot of testimony as to whether this latter term in trade. and commerce included oil of petit grain.. , Arnoua:. Ritch &: Woodford and Stephen G. Olarke, for plaintiff. Edward Mitchell, U. S. Atty., and W. Wickham Smith, Asst. U. S. Atty., for defendant.
If there were no evidence in this case, if we had nothing here but the tariff Rot. aUd the meaning whioh the dio,tionary gives to the word" neroli," namely, that it is the essential oil 'obtained from the flowers of the bitter orange, I should have to in.stroot you to find a verdict for the defendant, because it appears that the 'article imported by the plaintiff is not distilled from orange flowers. ,Thereis.:evidence,hoW]6ver, which was introduced under a general prin" LACOMBE, J., (charging,jury.)