KEVER 11. CADWALADER.
(01lrcuU Oourt, E. D. PennB1/wania. June 18, 1891.)
CUSTOMS DUTIES-HAT TRIMMINGS.
The clause of the tariff act of 1883, providing for "braids, plaits, flats, laces, trimmings. tissues, willow sheets and squares, used for making or ornamenting hats, bonnets, :and hoods, composed of straw, ohip, grass, palm-leaf; willow, hair, whalebone, or any other sublltance or material not specially enumE1rated or provided for, .. includell goods known, respectively, as "chinas" and "marceUI\es," and principally used for'Uning hats, if suoh goods are trimmings, and are chiefly used for making or ornamenting hats, bonnets,and hoods. The term "trimmings" should not, under the evidence. be given any technical or ,particular commercial meaning, but should receive Its poplllar signification Bnd common ·import, as used and applied in ordinary life. The mere fact that chinas aud marcelines are bought and sold by tbose particular names, and are called "linil!gs." does not necessarily exclude them from the class of trimmings if they are in fact trimmings ohiefly used. either for making or ornamenting hats, bonnets, and hoods. ' The fact that the articles are Imported by the piece, and must be cut up before they are aotually applied to use in making or ornamenting does not exclude them from the class of trimmings, If they are distinctlyadapteQ and chiefly used for trimming hats, bonnets, and hoods, and are not specially enumerated or provided for in the act. ' Hat trimmings are dutiable under the hat-trimming clause of the act of 1883, and not under the silk act of February S, 1875, notwithstanding that silk Is their component material of chief value, and that they contain less than 25 per cent. in value of Qotton.
SAME-MEANING 011' WORDS.
SAME-FORM IN WHICH ARTIOLB IS IMPORTED.
SAME-SII& ACT 011' 1875.
At Law. Assumpmt to recover an excess of duties alleged to have been illegally exacted by the collector on goods imported by the plaintiffs in 1884. The facts are sufficientJy set forth in the-charge. The verdict " was, for tht' plaintiffs., }tank P. Prichard and Hetl.ry E. 7hmain, (Cyru8 E. Wood8, Harry T. Kingston, ..4:ugUBt'U8 R. Stanwood, and Charles Ouric, with them,) for plaintiffs. W. W.; Carr, Asst. U. S.Atty., John R. Read, U. S. Atty., W. P. Hepburn, Sol. of Treasury, and William H. Taft, Sol. Gen., for defendant. ' ACHESON, Circuit Judge,(charging jury.) This is an action by Meyer &: Dickinson, importers, against the collector of the port of phia, (the United States being the real defertdant,) to recover, an alleged excess of duties paid under protest on goods entered at the custom-house on February 18, March 26, and April 10, 1884. The goods which were the subject of the duty were chinas and marcelines, the latter being made wholly ohilk, and the former of silk and cotton, silk being the component material of chief valu<:l. 'The custom-house officers assessed upon the goods a duty of 50 per centum ad 'Calorem under the last clause of Schedule L of the tariff act of March 3, 1883, (22 St. 510,) which . ' reads: .,'
-Beported;byKark Wilks Collet,llllQ.., of the Phlladelphia be.
"All goods. wares, and merchandise not specially enumerated or provided for in this act, made olsUk, or whichllilk is the component material of chief fifty per centum ad 'Oal(ll'em." The plaintiffs claim that the goods were liable only to 20 per centum ad valorem duty under the clause in Schedule N of the act which reads thus: "Hats,and so forth, materials for: Braids, plaits, flats, laces, trimmings, tissues" willow sheets and squares, used for making or ornamenting hats, composed of strll,w, chip, grass, palm-leaf, willow. hair, bonnets, and whaiebone, or any other substance or material not specially enumerated or provided for in this act, twenty per centum ad val01'em." The act of 1883 does not, in Schedule L or elsewhere, impose any duty upon chinas or marcelines by those names. The plaintiffs claim tl;latthe chinas and marcelines, the subject of this,dis'pute, come under theelallse just read, which begins with the words, "Hats, and so forth, materials for," as being trimmings chiefly used (or making or ornamentingh,ats, bonnets, and hoods,.and hence dutiable at·20 per centum ad Whetber these gO,ods corne under that clause, and are dutiableat 20 per centum instead of 50 per centum, as the custom-house officers held, is the question in this case'. " The solution of the question involves two inquiries: Ji'irBt.Are these chiMS and marcelines trimmings? Secondly. Are Jhey chiefly or principally used for making or ornamenting hats, bonnets, and hoods? ' If an affirmative answer is given to both of these inquiries your verdict be for theplaintifts; but if a negative answer is given to either the defendant would be entitled to your verdict. of There is much testimony in the, case tending to show at the date of the passage of the'tariff act of 1883 there was, and for a long time had been, a well-recognized general of articles, easily distingl,lishable by t40se in the known under the denomination of "trimmings," the p'rincipal use of which was for making or ornamenting hats, bonnets, and hoods, and having their chief commercial value ;from that tise. :Many witnesses' have testified that this. general class styled "trimmings" embraces a great variety of articles, composed of different substances or materials, each of which articles has its own specitlc c;>r particular nap)e. Furthermore, there is evidence tending to show: ,that' these various articles thus constituting the general class of "tilmwings" were and are imported into this country in different forms; some by the gross, some cut in divers ways, and some by This designation, "trimwings," is found in the particular clll;use of the tariff act of 1883. under which the present controversy has ariseq .. , .The introductory words of that,cllluse ll.re "Hats. and so forth. materials tor;" or, transposing the words, "Mawrials for hats, and so forth;" The general subject-matter.;then, ofth,e is "materials for buts,bonnets, and hqod,s." Imllll,>,cHatelyfdllo'wing the introductory words just quoted, the specially' <'braids, plaits, flats, laces, trimmings, tissues, willow sheets and squares." Then comes the declared use to be made of those eight articles, namely j "use&for' making
MEYER V. CADWALADER.
or ornamenting. hats, bonnets, and hoods." So far as the question in.volved in the present case is concerned, the clause is to be read as if it stood thus:
"Trimmings used for making or ornamenting hats, bonnets, and hoods, and composed of straw, chip, grass, palm-leaf, willow, hail', whalebone, or any other substance or material, llnd not specially enumerated or provided for in this act;"
Undoubtedly, then, this clause of the act embraces the entire class of trimmings shown to exist, of whatsoever substance or material composed, the chief use of which is for making or ornamenting hats, bonnets, and hoods, and not specially enumerated or provided for in the act. This was the decision of the supreme court of the United States in the two cases to which counsel have referred,,-Hartranjt v.' Langfeld. 125 U. S. 125, 8 Sup. Ct. Rep. 732; Robert8on v. Edelhoff. 132U. S. 614,10 Sup. Ct. Rep. 186. I have already called your attention to the' fact that chinas and marcelines are 'not specially made dutiable by those names by the tariff act of 1883. Are these articles trimmings, within the meaning of the clause relating to !!Hats, and so forth, materials for," and dutiable at the 'rate of 20 per centum? The evidence tends to show that chinas and marcelines were used at the time of the passage of the tariff' act of 1883,' and long had been used, for lining hats, bonnets, and hoods; that they were and are particularly adapted to that use, and had and have their chief commercial value therefrom. The plaintiffs' witnesses have testified that these articles have always belonged to and constituted a part of the general class of hat trimmings, and have been used and chiefly used to trim and finish hats, bonnets, and hoods, and make the same merchantable commodities. The defendants' witnesses have testified that chinas and marcelines do not belong, and never did belong, to the class of trimmings for hats, bonnets, and hoods. In this matter these witnesses make a distinction between the outside and the inside of a hat, bonnet, or hood. According to their conception and expressed views, only the outside decorations or adornments of a hat, bonnet, or hood are embraced in the designation "trimmings." They give to the term, you perceive, the most narrow significaHon it will bear. Undoubtedly the word "trimmings," as used in the clause relating to and so forth, materials for," includes ornamental appendages. But does it include nothing more? This you will determine upon consideration of the whole evidence, and having regard, also, to the terms of the particular dause of the tariff act with which we are now dealing. The language of that clause, as it relates to trimmings, you will remember, is: "Hats, and so forth, materials for, * * * trimmings, * * * used for making or ornamenting hats, bonnets, and hoods." The use is not confined to ornamentation;· but,by the express words of the clause, is "for making-" as well ItS "ornamenting." Either use is within tbe'langunge of the act. The defendants' witnesses also makeR distinction betweeti 'tthnmings .and linings, and they state that the latter are not included in the desig-
natio.-un:'ll,ss of trimmings. But the me.re factthat chinas and mar"linings" does not necessarily exclude them from the Mere names are not, of themselves, controlling. class of It isimmatElrlal that chinas and marcelillesare bought and sold by those particular .names, and are called "linings." if. in fact, they are trimmings chiefly used either for making or ornamenting hats, bonnets, and . pllJ.intiffs. contend that they have given evidence tending to show that. the. lining of hats. bonnets, and hoods is really a finish of an ornaHow this is. you will determine. But, aside from the mental matter of ornamentation, you are to consider whether the lining of a hat. bonnet,,!>r hood is not apart of the construction or making of the article. within the meaning of the clause of the tariff act. Again I direct your at* * * used tention:to thelangunge therein employed: for making or ornamenting hats, bonnets, and hoods." You will also recall ftnd give proper consideration to the evidence tending to show that commonly,tbe lining of a hat, bonnet. or hood is. necessary to its finish and fitness for use, and is required to make it a completed article, and a merchantable commodity. Under the evidence in this case the term "trimmings?' should not be given any technical or particular commercial but should receive its popular signification and common import. The w.ord "trimmings" should be understood and applied in its natural sense, as used in ordinary life. . The evidence tends to show that chinas and marcelines are particularlyadapted and intended to be used, and in fact are and long have been used, as inside appendages for hats, bonnets, and hoods, to trim and finish them, and that their substant" commercial value consists in that use. Are they, or are they not trimmings, to the natural meaning of that word? This you will determine,. taking into consideration all the evidence on the subject,and having regard to the preponderating weight of the evidence. If you should find from the evidence that the articles here inquestion-chinas and marcelines-are not trimmings, that,of course, would make an end of the plaintiffs' case t but, if you should find them to be trimmings, th.en the only remaining inquiry will be as to what their chief use is. The plaintiffs have examined a large number of experienced witnesses, who have testified that chief use of these goods is, and long has been, to line hats, bonnets, and hoods. Some evidence hasbeert adduced by the de/enciant tending to show that these articles are adapted to some other purposes, and are so used to some extent; but I do not recall any testimony on the part of the defendant showing that the chief use of chinas and marcelines is for any purpose otber than for lining hats, bonnets, and hoods. So that, according to my recollection of the testimony, the evidence offered by the plaintiffs as to the chief use of these articles is not contradicted. If. then, your finding should be that these goods are trimmings, and that their chief use is for making or ornamenting hats, bonnets, and boods, your verdict should :be for the plairitifis.
It only remains for me to read and answer certain points or prayers for instructions submitted by counsel for the respective parties, and which cover every legal phase of the case. I am asked by the defendant to charge you: "(I) If you believe that, in March,1883, cbinll8 and marcelines were commercially known as 'linings,' and not ·trimmings,' then your verdict should be for the ,defendant." This point is refused· · "(2) If you believe tbat, thechtnas marceltnes In 8uit were bought, sold. and u!ed in trade in March,1883. under those names, and were notcQIt1mercially know nat." trimmings.' then your verdict should be for thedeferidao't." This point is refused. "(3) If you believe that, the chinas and marcetines were not 'trimmings,' accord,jng to the natural meaning of that word, in March, 1883, in t,hltab.ance of evidence of commercial usage to the contrary. then your verdiot .bould be for the defendant.' This point is affirmed. "(4) "¥Ollr. verdict must be for the if you 'believe that'the articles in Buit were chiefly used in March, 1883, for ptt rposes other than making or ornamt'nting hats. bonnets, or hoods, eviln if you believe that they were known as 'trimmings.'" This point is affirmed, if you so find from the evidence. , "(5) If yon believe that the process of lining a hat, bonnet, or hood Is, tn trade. not part of the trimming of it. theli your verdict must be for the defendant." ' .This pQint is affirmed, if you so .find from the evidence. "(6) If yon belie\Te' that the chinas and marcelines In suit were not tn the form of trimmings at the time of their importation. you ,must find for the de'lendant, although you should believe that they were suitaple and adapted' by their natl,lre, and qualities to be made is refused. This point .which I read and the next one embody the proposition advanced by defendant's counsel, and discussed .bythem before the jury, ,that the chinas and marcelines here in question cannot be regarded as witQin the as ployed ,act of congress, because they are imp()J;ted by the piece, and before the O1arterial is :actually applied to use in the making or ornamenting of..llats, bonnets, pieces have to be cut, up into smaller pieces, and made into certain forma. But, the court cannot 0.0this view as correct, and I inslructyou that hat materials which are imported by the piece are "trimIpings," within the meaning of the tiet of cOQgress, if they are distinctly adapted, and in fact are chiefly used, for trimming ha.t&,. bonnets, and hoods, and are not specially enumerated or proviaed for in, the act. io (7) The j·ury are instruoted: that tbere. is a <Ustinction properly to be made between' tJ'immings' and materials outl)f rwbich to manufacture trimmings. and, if the articles in suit are not trimmings in the sense of being fabricated as such, but J'equlr!!d ·skill 'ani:llabor to cut, fit, fold, 'sew, odasbion them into trimmings, then 'they must find f01'
You will understand' that I am asked to instruct you in this way. This is the proposition which counsel ask me to affirm. I decline to give you that instruction, and I have given you the contrary in!'truotion. The point is refused. "(8) The language of a tariff act is to be construed in the llght of commercial usage and trade terms prevailing at the time of its passage. It. therefore, you should find from the evidence that there were known in the trade in 1883 two classes of articles, distinct from each other, the one called ·trimhats, bonnets, and hoods,' and the other, · linings for hats, bon· 'hoods,' and the marceJines and chinas in suit were embraced in the verdict Should be for the defendant." . . This point is affirmed if you find' that the distinction here suggested existed in point of fact, not merely in name, and that the class of "trim· does not include linings. "(9) The' trimmings' of a hat, bonnet, or hood. according. to the natural meaoingoHhe worll. are the articles used to trim it. I charge you that, in the absence of evidence of commercial usage to the contrary. the material used in lining the inside of a hat is not a tri mming, within paragraph 448 of the tar!ff a,l,lt,of 1883; aI!d, if you find the chinas in suit to have bedn used 'only for llning the hat, your verdlct must be for the defendant." Will understand that this is the language of counsel; that they ask meSo to charge. I decline so to charge you. The' point is refused. "(10) By the act of February 8.1875. all manufactures of silk, or of which silk wl\8 tpe component of chief value, irrespective ofclassi fication by Il\ws or commercial designation, were dutiable at sixty per cent., prOVided such manufactures did not contain twenty-five per cent. or more in va-Iue of cotton. If you find, therefore. that the articles in suit are manu· factures of silk, or that silk is the component material of chief value in them, then. ;y.o\1sbould lind for the defendant, unless the articles in suit contain per cent. or more in value of cotton." This point is refused. "(11) The burden of proof is upon the plaIntiff in this case to show that the classification of the articles in suit was erroneous, and that they are ·trim. mings." ,. This 'point is affirmed,but in your. findings of fact you should have regard to the prepondel'll.ting weight ofthe evidence. The plaintiffs have submitted to me certain point9, most of which I will specifically answer, and some of which I will not answer, because I conceive'that the proper answers are embodied in the general charge which I have submitted to you. . . Thedrst'point was withdrawn by plaintiffs. "(2) find that the in question are adapted to use and are used forvariol1s purposes other than for trimming hats, but also find that thf' useito wbich they are chiefiy applicable is in making or ornamenting hats, bonnets, or hoods, the verdict should be for the plaintiff." This is affirmed if the articles are chiefly used in making or ornamenting hats, bonnets, l1nd hoods. , " "(3) circumstance that the articles hi ,question be used for purposes othel" than the or ornamenting of bats, bol)nets, or hoods is Dot
MEYER 11. CADWALADER.
controlling, and does not subject them to a higher rate of duty, if the fact be that the distinctive feature of the goods consists in their adaptation to use for making or ornamenting hats, bonnets, or hodds." This point is affirmed, with the qnalification in regard to the chief use contained in the answer to the second point. "(5) If, upon the evidence in this case, the jury believe that the 'purpose and use of the goods in question was to trim other articles,-that iii to say, to adjust or fit such other articles to their final use,-they are trimmings, within the meaning of the act; and if their chief or prpdominant use is to trim hats, bonnets, or hoOds, your verdict should be for the plaintiff." This point is affirmed. "(6) Upon the evidence in this case the term ·trimmings , shOUld not be ghen any technical or particular commercial meaning, but should receive its popular signification and natural import; and, if the articles in question are trimmings,in the general and popular sense of the term,and are used for JIlaking or ornamenting hats, bonnets, or hoods, then, if such use is predominant, and not exceptional, the verdict should be for the plaintiff." This point is affirmed. "(8) If the jury believe that in commercial usage there is a well.defined class of articles recognized to be trimmin!o(s used for making or ornamenting hats, bonnets, and hoods, and that the articles in qllestion belong to that class, then plaintiffs are eHtitted to a verdict." ThiB point is affirmed, if the articles are chiefly used for making or ornamenting hats, bonnets, and hoods.
"(9) It is not essential that the articles in controversy should be specially mentioned in the tariff as subject to a duty according to their indiVidual names. If they are found to be trimmings, according to the natural meaning of the word, and are used to trim either hats, bonnets, or hoods, and also for other purposes, then, if principally used for making or ornamenting hats; bonnets, or hoods, the verdict should be for the plaintiffs." This point is affirmed.
"(10) In this case the specific names by Which the articles in question are bought and sold in trade and commerce do not control their classificatiqp for dutiable purposes." This point is affirmed. I have so instructed you in my general charge. "(ll) It IS not essential that the various articles in question be bought and sold under the specific name of · trimmings.' The individual names by Which the articles in question are designated in trade do not interferewiththeir classification according to their predominant use, if it be found that they are trimmings"chiefly so used for making or ornamenting hats, bonnets, and hoods." This point is affirmed. I have already so instructed you in my general charge.
"(12) Unless it be shown that the word ·trimmings' Is restricted in trade and commerce to some particular articles to the exclusion of all others, that term should be given its natural signification, which would include all arti. cles, of whatever materiid'composed, the pre'domimint use of which iafto trim:''' . .
I affirm that point.
The case is now in your hands.
FEDERAL REPORTER. vol. 49. MEYER etAl. CADWALADER, Colrector.1
(Circuit COUrt. 1i1. i). Penn81/ZVania. July So 1891.}
1. CusTOM.!! DU1JBs-:-HAT
,,,, ,the of the tariff act of 1881l providing for "bl'Qlds, plaits, flats, ,laces,' trimmings, tissues, wUlow"sheets, and squares used for making or ornament111g hats, bonnets. ,and hoods Of straw, chip, grass. palm-leaf, willow, hair, or any oth,er ,substance or. material not speoil/olly enumerated or '·prov.tded for," Inoludes oertaln orepons, orepe, satins, and velvets, depends upon two conslderatons, viz.: First, whether tbe partioular goods in suit were "trimmings;" aud, secondl whether their chief use WllS for making or ornamenting hats, bonnets, and hooas. . aRurs. . . ..The defendant having conc,eded that. unller the evidence, the goods in suit wer& : "trimmings," this questlon'ls narrowed to ,thl!' single inquiry as their ohief use. , The bUrden 'of proof is upon the plalntltts, and 'it is Incumbent on them to estab,lishtheir allegatioDi by sumoieni evidence. In considering the question of chief use, It Is the dutr of the jury to give more attention to tbe course of trade In the orlfinal distributIon of the goods among those who hnport them than to the gllesses 0 individuals as to the various uses to which the articles may be put by individual consumers.
OF PROOF. ' , TRIl\tMJNGS. . " ·
'- SAMll-EvIDBNOB-COURSJII OJ' TIUDB.
At .A88Umpmt to recover an excess of duty alleged to have been exacted, by, the, collector upon certain velvet ribbons" gnuzes, crepon, crepE'S, satins, and velvets imported by the plaintiffs in 1886. The facts are sufficiently set forth in the charge of the court. The defendant admitted tlllitithe duty' collected on the velvet ribbons was excessive, and that ,was due on that account $244.01, but denied that anything was due po ,the other itews. The verdict was for plaintiffs for the amount admitted to be due 011 the velvet ribbons only.2 Ji'rank P. Prichard, HtmryE. Tremain, and John G. Johnson, (Cyrus E. Woods, Harry T. Kingston, .Augustus R. Stanwood t Oharles Ourie, and .Alexander P. with them,) for plaintiffs. W. W. Carr, Asst. U. S. Atty., John R. Read. U. S. Atty., William H. Taft,. Sol. Gen., and W. P; Hepburn, Sol. of Treasury, for defendant. ACHESON, Circuit Judge, (charging jury.) This is an action brought by Meyer ,&:, J)ickinson, against the collector of the port of Philade)pbi,a, to recover an alleged excess of duties pnid under protest on goods entered at ,the custom-house on various days in the months of March, April, and May in the year 1886. While the collector is the defendant named on the record, the United States are the re.al defendants. It is conceded under the evidence that an excess of duty was colleoted from the plaintiffs on the article of velvet ribbons, and there is no dispute as to the amount of such exceBS. As to that item, therefore, you will render a verdict for the plaintiffs. This amount is admitted to be 8244.01.
Reported by :Mark Wilks Collet, Esq., of the Philadelphia bar. Dew trial was afterwards granted by the court. OD motion of plaintlffa. Fed. Rep. ll2.