was accordingly sustained and the decisIon of the collector reversed. The collector appealed to the circuit court, where the testimony of several witnesses was taken in behalf of the government, tending to show that the mercbandise in question was used almost exclusively to be made up into women's aprons, Skirts, and dresses, requiring from a yard and. a balf to five yards for eacb garment, and that the broad bem wbicb was on the goods was a part of tbe garments when finished. The evidence of an examiner ill the appraiser's department of tbe custom house was also taken, who had made a count of tbe threads to the square inch in different parts of the fabric constituting the warp and filling, and who found in one part where the tbreads were crowded togetber, 228 tbreads to the square inch; in another part of the open work, 185 threads; and in the plain portion of the fabric, 1(;9 threads to the square inch; the count in each case being made by cutting out a square inch, and unraveling the threads therefrom.
Edward Mitchell, U. S. Atty., and James T. Van Rensselaer, Asst. U. S. Atty., for collector and government. Alex. E. Kursheedt, for importer. COXE, District Judge, (orally.) This appeal fairly presents two questions for the court. The first is whether or not the importation is wearing apparel. Upon that proposition I think the respondent is correct. I do not believe that putting a hem upon a piece of cloth makes it "wearing apparel made up or manufactured wholly or in part." The other question relates to the efficiency of the protest. The protest specifically points out, as the section under which these goods should have been classified by the collector, paragraph 348 'of the tariff act of 1890. That paragraph, so far as it is necessary Ito refer to it here, provides for a duty upon "cotton cloth not bleached, dyed, colored, stained, painted, or printed, exceeding 200 threads to the square inch," etc. The proof presented to this court is not disputed that a great portion, and by far the larger portion, of the imported cloth contains less than 200 threads to the square inch. Only a very small part thereof exceeds 200 threads to the square inch. Therefore, it seems to me that the importer was wrong in pointing out section 348. The only question here is whether or not the goods should have been classified under that section; not whether the collector is right, but whether the importer is right. They could not have been classified under that section, for the reason that they do not contain threads exceeding 200 to the square inch. The collector was not required to look elsewhere than to the particular paragraph pointed out by the protest. The decision of the appraisers is reversed.
In re DOWNING et al (Circuit Court of Appeals, Second Circuit. June 15, 1893.)
CUSTOMS DUTIES-COMMERCIAL DESIGNATION-VERMILION RED.
'1'he tariff aet of 189U Imposes a specific duty of 12 cents per pound on "vermilion red, and colors containing qUicksilver." Genuine vermilion red contains quicksilver, and there Is an imitation of this color which contains none. It appeared tbat at the date of the act both the genuine and the spurious were known and desib'TIated coJUmercially as "vermilion red." Held, that the imitation was subject to the same duty as the genuine, and was .not dutiable under the provision of the color
IN RE DOWNING.
schedule imposing a duty of 25 per cent. ad valorem on "other paints and colors not specially provided for."
The first-quoted clause of the act so clearly covers the article in question, the imitation vermilion red, that statements contained in the report of a senate committee on the act cannot be considered to show an inferential intent to place it tho second clause.
Appeal from the Circuit Court of the United States for the Southern District of New York. At Law. Appeal in behalf of the United Stat to the United S States circuit court of appeals for the second circuit from a judgment of the United States circuit court for the southern district of New York affirming a decision of the board of United States general appraisers. Judgment reversed.
The firm of R. F. Downing, on January 21, 1891, imported, by the Lydian Monarch, from England Into the United States, at the port of New York, certain merchandise, consisting of a dry paint or color composed of 72.39 per cent. orange mineral or red lead, 23.71 per cent. whiting, and 3.90 per cent. eosine, and invoiced as "carmine red." This merchandise having been returned by the local appraiser as vermilion red, as It possessed the tint known commercially as "vermilion red," was classified for dlllty at the rate of 12 cents a pound, as vermilion red, under the provision for "vermilion red, and colors containing quicksilver, dry or ground, in oil or water, twelve cents per pound," contained in paragraph 57 of that part of Schedule A entitled "Paints, Colors and Varnishes," of the tariff act of October 1, 1890, (26 Stat. 569,) and duty at that rate was exacted thereon by the collector of customs at that port. Against this classification and this exaction the Importers duly protested, claiming that this merchandise was dutiable "under either one of the following named paragraphs: Paragraph 61, Schedule A, twenty-five per centum ad valorem; paragraph 65, Schedule A, at three and one-half cents per pound; paragraph 66, Schedule A, at three cents per pound,-all in the act of October 1, 1890," and In that part of said schedule entitled as aforesaid. Paragraph 61 reads as follows: "All (.ther paints and colors, whether dry or mixed, or ground in water or oil, inrluding lakes, crayons, smalts and frosting:::, not specially provided for in this act, and artists' colors of all kinds in tUbes or otherwise, twenty-five per centum ad valorem; all paints and colors, mixed or ground with water or solutions other than oil, and commercially known as artists water color paints, thirty per centum ad valorem." Paragraph 65 reads as follows: "Orange mineral, three and one-half cents per pound." Paragraph 66 reads as follows: "Red lead, three cents per pound." Upon the receipt of this protest the aforesaid collector, pursuant to section 14 of the customs administrative act of June 10, 1890, (26 Stat. 137,) transmitted the invoic(· of thlg merchandise, and all the papers and exhibits connected therewith, to a board of three United States general appraIsers on duty at the port of Ncow York, to examine and decide the case thus submitted. The board of United States general appraisers, having taken the evidence of witnesses productD before them, made the following decision: "'.rhe merchandise is a color composed of orange mineral, whiting and eosine, and is invoiced as 'carmine red.' As it possesses the tint known commerdally as 'vermilion red.,' it was returned by the appraiser as vermilion red, ann. duty was aceordingly a:::sessed at 12 cents pet' pound, under paragraph 57, Tariff Ind. (New.) The appell:lllts claim that the article is dutiable either under paragraph 61, ld., at 25 per cent., or under paragraph 65, as orange mineral. at R% ceLts a pound, or under paragl'Rph 66, as red lead, at 3 cents a poup.d. "The determination of the question involved in this case being of Importance to maIlY and great interests. the board gave a hearing, which was attended by Importeri'! and domestic manufacturers, and the subject has -sInce received a carpful and thorough consideration. From the testimony,
we find that the terms 'vermilion' and 'vermilion red' are applied indiscriminately, in the trade, to genuine vermilion, which contaillil quicksilver, and to its imitations or substitutes, which do not. In orders for genuine vermilion the article is usually designated as 'English vermiiion,' while imitations and substitutes are kno\vn by fancy names, such as 'Eureka vermilion,' 'Champion vermilion,' etc. We further find that in the trade 'vermillon red' is not applied to articles composed of any particular material, but is held to embrace any color that has the bright red tint once peculiar ro vermilion, or sulphicte of ml'rcury. "The tariff provides, in paragraph 57, for 'Vermilion red, and colors conquicksih'(·Y.' '1'he paragraph in the bill, as it came from the house, reads, 'Vermilion red, or colors containing quicksilver.' The 'or' was strucl, ont by the senate finance committee, and the conjunction 'and' inserteLl. 'rhe; law contains the provision thus m0dified. Had the paragraph remained as it passed the house, it wouW have been clear to all that the duty of 12 cents :t pound was applicable only to vermilion contnining quicksilver; but it is now claimed th:lt the change of conjunctions removed the limitation, and made the duty applicable to any article known as vermilion red. This does not, however, appear to have been the intention. of congress, judging from the official record. The report of the senate finance committee, which was adopted, so far as this modification is concerned, contains the clause as modified, and says, in explanation of the change of rates from the old tariff to the new, "l'his is a from ad valorem to an equivalent specific rate: The rate Jixed is 12 cents a pound, the highest specific rate named in the schedule. The equivalent ad valorem rate must therefore have been levied npon a costly material. Taking the context, 'Vermilion red, and colors containing quicksilver,' and bearing in mind that quicksilver vermilion had been paying duty, under the general provision for colors, at 25 per cent. ad valorem, and that the equivalent specific rate would be about 12 cents a pound, the conclusion seems irresistible that the intention of congress was to apply the new rate to genuine vermilion or sulphide of mercury, and not a variety of substances tinted red, but varying in value from 1% cents a pound up. The term 'color,' as an equivalent for 'paint,' is defined by Webster as 'that which is used to give color.' The duties in the color schedule attach, not to colors as tints, but to materials used to give colors. In every paragraph of the schedule the colors eaumerated either represent particular substances, or illelude specified matelials, for inst'lnce: Paragraph 50, blues containing ferrocyanide of iron; 52, black made from bone, ivory, or vegetable; 53, chrome yellow, in which lead and bichromate of potash or soda are component parts; 58, wash blue, containing ultramarine. It is repugnant to reason to suppose that congress made paragraph 57 the one exception to this practice, and levied the highest specific duty in the schednle upon a tint or shade of color, regardless of the material used to give color. "The only vermilion described in 'Vebster, the British Encyclopedia, and other standard authorities ('cusulted, is a combination of qUicksilver and sulphur. In the opinion of the board it is upon this vermilion, costing about 50 cents a pound in foreign markets, that congress intended to levy, and did levy, a duty of 12 cents a pound. As the merchandise in question contains no quicksilver, and as it is a color not specially provided for, the claim of tlw importer that it is dutiable at 25 per cent. is sustained." 'l'he collector, being dissatisfied with this decision of the board of United States general appraisers, applied to the circuit court of the United States for the southern district of New York for a review of the questions of law and fllCt involved therein, under the provisions of section 15 of the nforcsaid customs administrative act. Pursuant to an order made by the said circuit court upon this application, the said board made its return. Thereafter, further evidence was taken in the said circuit court in behnlf of the collector and till' importers, by which it appeared, among other things, in addition to the facts contained in the statement of facts hereinbefore made, and in .the findings of facts set out in the above-mentioned decision of the board of United States general appraisers, that tile importations in suit were paints or colors made in imitation of the genuine vermilion red, and while known by the specific name of "carmine red," or by other specific names, belonged to the class
of paints or colors which at the date of the passage of the aforesaid tariff act was commercially known as "vermUion" or "vermilion red." Subsequently said circuit court, in view of the aforesaid statement of the senate finance committee, and under its interpretation of the decision in the case of CllUrch of Holy 'frinity Y. U. S., 143 U. S. ·1:"i7, 12 Sup. Ct. Rep. 511, rendered judgment affirming the decision of the board of United States general appraisers.
Edward Mitchell, U. S. Atty., and Thomas Greenwood, Asst. U. S. Atty. Hess, Townsend & (Wm. J. Townsend, of counsel,) for appellees. Before WALLACE and SHIPMAN, Circuit Judges. WALLACE, Circuit Judge. The question in this case is whether the importations in controversy were dutiable under that provi· sion of the tariff act of October 1, 1890, found in the color schedule, which subjects to the rate of 12 cents per pound "vermilion red, and colors containing quicksilver, dry or ground, in oil or water." The board of general appraisers and the circuit court were of the opinion that the importations were dutiable under another provision of the act, as "other paints and colors, not specially provided for in this act," at 25 per centum ad valorem. The importations were paints or colors made in imitation of the genuine vermilion red, and belonged to the class which at the date of the passage of the tariff act was commercially known as "vermilion" or "vermil· ion red," the two names being indiscriminately used. The genuine vermilion red contains quicksilver, and colors like the importation do not; but the trade denomination for the genuine and the imitations, alike, is vermilion red, and by trade usage the term embraces any color having the bright red tint which once was peculiar to the sulphide of mercury. Applying the familiar rule that a commercial designation of an article among traders and importers, where such designation is clearly established, fixes its character for the purpose of the tariff laws, if the provision is read in its natural and ordinary sense, it subjects to the duty specified all colors which at the date of the act were commercially known as "vermilion red," whether they do or do not contain quicksilver. There is nothing in the other provisions of the color schedule to qualify the interpretation of the provision III question, or even suggest the conjecture that it does not mean exactly what it says. According to its plain import, it imposes a specified duty upon every color known as "vermilion red," and if there is any color not known by that name, but containing quicksilver, upon every such color, also. It appears that while the tariff act was under consideration by conf.,'Tess the provision in question, which originally read "vermilion red, or colors containing quicksilver," was amended so that the word "or" was stricken out, and the word "and" was inserted. Had not this change been made, there might be room for argument that the two descriptive terms were intended as the equivalent, one for the other; but the amendment serves to remove any doubt which might have been suggested by the original phraseol-
ogy of the bill. The board of general appraisers and the circuit court were led to sustain the contention of the importers, that it was the intention of congress to levy the duty only upon vermilion red containing quicksilver, because of a statement which appears in a report of a committee of the senate explaining the change of rates from the old tariff to the new. The report contains this statement with respect to the color schedule: "This is a change from an ad valorem. to an equivalent specific rate." Under the former tariff the rate upon vermilion had been 25 per cent. ad valo· rem, which is substantially the equivalent of the specific duty of 12 cents a pound. This statement, by some of those who par· ticipated in framing the act, cannot, in our judgment, be permitted to nullify the language deliberately employed by the whole body of legislators. When the language of a statute is plain and unequivocal, it is not permissible to search for another meaning, which may have existed in the minds of individual legislators, and, find· ing that meaning, to substitute it for the meaning expressed. But the value of the statement in the report is completely neutral· ized by the proceedings of the senate when the act was on its passage, as appears by the Congressional Record. One of the senaJtors moved to amend the bill by substituting in place of the specific duty the ad valorem duty of the former tariff, and in be· half of that motion stated to the senate that the effect of the specific duty would be to impose upon some of the lower grades of vermilion red a duty equal to 75 per cent. ad valorem. Notwithstanding this explanation the senate refused to agree to the amendment. If congress had not intended to place the duty on vermilion red of all kinds, that purpose could have been readily expressed; and we cannot doubt it would have been expressed by placing it upon "vermilion red containing quicksilver," instead of upon "vermilion red, and all colors containing quicksilver." The circuit court, in affirming the decision of the board of general appraisers, referred to the case of Church of Holy Trinity v. u. S., 143 U. So 457, 12 Sup. Ct. Rep. 511, which was apparently pressed upon its attention as an authority for permitting courts to discard the language of a statute, and interpret its purpose by the supposed intention of the lawmakers, gathered from general considerations of justice or expediency. 'l'hat adjudication, accord· ing to our experience, has been invariably cited where the effort has been to induce this court to legislate, and substitute its own notions of what the law should be for the plainly expressed will of the legislative body. We do not understand, however, that it sanctions any new rules of statutory inteTJlretation. The judgment of the circuit court is reversed.
In re VAN BLANKEJNS'J'EYN et a1. (Clrcult Court of Appeals, Second Circuit. December 12, 1892.)
CUSTOMS Du'rIEs-CLASSIFICATTON-"BoL'I'l:"rG CLOTH."
Bolting cloth, which is to be used for decorative purposes, and for that reason is manufactured In narrower widths thun that generally required
IN RE VAN BLANKENSTEYN.
for milling purposes, (48 inches,) was free of duty, under the tariff act of March 3, 1883, as "bolting cloth," notwithstanding the fact that this use and meth(ld of manufacture arose artel" the passage of that act; and it was error to assess a duty thereon of 50 per cent. ad valorem, under Schedule L, as a manufacture of silk, not specially provided fc>r.
SAME-REVIEW OF BOARD OF ApPRAISERS' DECISION-HECORD-EvIDENCE.
'Vhen the decision of the board of general appraisers is made the subject of review in the circuit court pursuant to section 15 of the customs administrative law, (Act June 10, 1890,) the return made by the board must embody all the evidence which was considered by them in reaching their decision, and it would seem that, as they act judicially, they can· not themselves act as witnesses. In the cirCuit court the return of the board is to be considered substantially in the same manner as the report of a master in an equUy suit is considered in that court, or as the record, inclUding the opinion of the court, in an equity or admiralty suit, Is considered in an appellate court. The circuit court therefore should not disturb the findings of the board upon doubtful questions of fact, especially questions which turn on the intelligence and credibility of witnesses; but when a finding of fact is wholly without evidence to support it, or when it is clearly contrary to the c>f evidence, it is the duty of the court to disreJrard it.
Appeal from the Circuit Court of the United States for the Southern District of New York. This was a petition by Van Blankensteyn & Henning for are· view of a decision of the board of general appraisers sustaining the action of the collector in assessing a duty of 50 per cent. ad valorem on certJain bolting cloth imported by them. The circuit court reversed the decision of the board, (49 Fed. Rep. 220,) and the government appeals. Affirmed. Henry C. Platt, Asst. U. S. Atty. Everit Brown, for importers. Before WALLACE, LACOMBE, and SHIPMAN, Circuit Judges. WALLACE, Circuit Judge. This case presents the question of the effect to be given by the circuit court to the finding of fact made by the board of general appraisers when the court is called upon, under section 15 of the law of congress of June 10, 1890, commonly known as the "Customs Administrative Act," to review a decision of the board. The respondents imported certain merchandise, upon which the collector of customs assessed duty under Schedule IJ of the act of :March 3, 1883, which reads as follows: "All goods, wares, and merchandise not spccially enumerated or provided for in this act, made of silk, or of which silk is the component material of chief valuc, 50 per centum ad valorem." 'fhe importers protested, claiming that the merchandise was cloths," and as such exempt from duty by the free list of that act. The board of general appraisers examined the case, and, after wRnesses, affirmed the decisi()n of the collector. Thereupon the importers made application for a review to the circuit court of the questions of law and fact involved in the decision of the board. No new evidence was taken upon this application, and the case was
heard by the circuit court upon the return made by the board of appraisers, consisting of the record and the evidence taken by them, with their certified statement of the facts involved in the case, and their decision thereon. The board of appraisers certified in their statement of facts. among other things, as follows: "That the socalled 'bolting cloth' which was the subject of protest is not the 'bolting cloth' of commerce." The circuit court was of the opinion that the finding was not sustained by the evidence in the return, and reversed the decision of the board of appraisers. An examination of the record shows that bolting cloths are a thin silk fabric, made very carefully, usually in widths of 48 inches, and designed and adapted primarily for use by millers, but they are capable of use also for decorative purposes in making tidies, scarfs, banners, and art novelties; that prior to :March 3, 1883, they were not used for decorative purposes, but have been since that time to a limited extent; that since March 3, 1883, to meet the conveniences of the decomtive use, they have been made in narrower widths, some of 18 and some of 24 inches; that the importations in con..:roversy are the cloth in the narrower widths; that there is no evidence that cloths of these widths cannot be or are not used here as bolting cloths by millers; that ever since their introduction into this C'O'lllltry, subsequently as well as p1'ior to the tariff act of 1883, they have been bought and sold here exclusively by the name of "bolting cloths." The fact that at the date of the tariff act the goods had not been manufactured in the narrower widths is not controlling, nor is the faC't that they are capable of use for other than milling purposes. The material and texture being the same, the fact that a reduction in width has been made by the manufacturers for the convenience of a particular class of users does not affect the dutiable character of the goods. They certainly would not cease to be bolting cloths if, when imported here in the full width, they should be cut by the retailer into narrower widths, to accommodate those who might desire to use them for decorative purposes. Unless the finding made by the board of appraisers should have been treated as controlling by the circuit court, the decision of the court wa's clearly right. It is contended by the appellant that, inasmuch as the return does not ·state that it contnins all the evidence or all the informatjon upon which the board based their finding of fact, it is to be presumed in support of their decision that they had other and sufficient evidence before them to justify it; and it is argned for the appellant th'at it is competent for the board, in deciding questions of fact respecting the classific.ation of goorls for duty ina given case, to avail themselves of evidence which need not be returned, such as they may have taken in previous cases, and even of their own expert knowledge acquired from extraneous sources. We are not now called upon to decide whether in hearing a given case the board are at liberty to resort to evidence which has been taken in other cases, 01' to sources of information other than the evidence adduced diredly in the case before them; but we are entirely clear
IN RE HERRMAN.
that, when their decision is made the subject of review t5y an application to the circuit court pursuant to I!!ection 15, the return must embody all the evidence which was considered by them in reaching the decision; and it would seem, as they act judicially, they oannot be witnesses themselves. By section 15 of the customs administrative act it is provided that upon an application to the circuit court for a review of the decision of the board of appraisers the court shall order the board of appraisers to "return to said circuit court the record and the evidence taken by them, together with a certified statement of the facts involved in the case, and their decision thereon." The section further provides that "all the evidence taken by and before said appraisers shall be competent evidence before said circuit court." These provisions are of no value, and have no meaning, unless they mean that the return is to supply the circuit court with all the evidence upon which the decision was based, and that when the evidence is returned the circuit court is to consider it,and give to it its proper weight. Obviously the evidence and the findings of fact are to be considered together by the circuit court. We conclude that the return is to be considered substanUally as the report of a master in an equity cause would be considered by the circuit court, or as the record, including the opinion of the court, in an equity or admiralty cause in the district or circuit court would be considered by this court upon an appeal from the decree. The circuit court should not undertake to disturb the findings of the board upon doubtful questions of fact, and especially as to questions of fact which turn upon the intelligence and credibility of witnesses who have been produced before the board. But when a finding of fact is wholly without evidence to support it, or when it is clearly contrary to the weight of evidence, it is the duty of the circuit court to disregard it. The judginent is affirmed.
In re HERRMAN et a!. (CIrcuIt Court of Appeals, Second Circult. June 15, 1893.)
:lUSTOMS DUTIES-CI,ASSTFICATION-" ASTHACHANS. "
So-caiJed "Astrachans," being fabrics composed of cotJton and haIr, made In Imitation of the coat of the ASitrachan lamb, and commercially known as "Astrachans," are dutiable under the tariff act of October 1, 1890, at 44 cents a pound and 50 per cent. ad valorem, uDder paragraph ::192, as a manufacture In whole or in part of goat haIr, and not at 49% cents a pound and 60 per cent. ad valorem, under paragraph 396, as "pile fabrics." 52 Rep. 941, affirmed.
Appeal from the Circuit Court of the United States for the Southern District of New York. This was a petition for a review of a decision of the board of general appraisers sustaining the action of the collector in the classification for duty of certain goods imported by H. Herrman, Sternbach & Co. The court below reversed the decision, (52 Fed. Rep. 941,) and the government appeals. Affirmed.