FEDERAL REPORTER,
vol. 44.
estoppel uhless the' benefit derived from it i,s ttiutual; that is, II: judgment cannot be used as evidence against a the ophim.. ' .In the record, of posite verdict would not have been evidence by Hager the parties thereto are not the same as in this case, and he is not prejudiced, and can derive no advantage by it. If Larison had succeeded in the suit in Dakota\ a.nd obtained judgment against Wilbur and Nickeus, he could not enforce'itagairist Hager, who 'WIlS not :within jurisdiction, and was not served with process. Demurrer sustained, withJeave to answer. NOTE BY JunGE NELSON. Consult Mason v. Eldred, 6 Wall. 231; Detroit v. Roughton, 42 Mich. 459,4 N. W. Rep. 171, 287; McLelland v. Ridgeway, 12 Ala. 482; Bank v. Robinson, 13 Ark, 214; Hall v. Lanning, 91 U. S. 160; Brown v. Birdsall, 211 Barb. 549; Board 01 Pub. Works v. Columbia. Coll., 17 Wa.ll. 521. '" j- , .i'''' .,:'..' -.' -' . ' , .;"" .', ' ...' I .' .' " . .' .' .' -' ::.':'} . .. '-.' . .' .'.'
,
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I
ALOE 1,1,
f1. CHURCHILJ,. ,
(Ctrcuct (Jour£, llJ. D. I, ::ti..;.'-'li,
E. D. November 15, 18110.) '
CUSTOMS DUTIEs--OPERA-GLASSES.
Opera-glasses are dutiable as U articles composed in part of metal" under the last clause of the metal schedule, (Heyl, Dig. 216 ) and no,t as-non"enumerated artlcles under the similitude clause of section 2499, dleYl, .Dig.823,) the metal frame being a necessary and important part of the opera:-glss8, whether W8 re(pU'd size or value.
At Law. ,Rowell· Ferriis, for plaintiffs. " &60. D. Reynolds, U.' 8. Atty., for defendant. ,
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THAYEll.,J. This case has been once tried and anew trial I1has been resubmitted ontha testimony produced at the former trial, and the sole question to be determined is whether under the tariff act of March 3, dutiable under the third clause of section 2499, (Heyl, Dig. 823,) or the htst clause oithe metal schedule, (Heyl, Dig. 216.) If the former view is adopted, the duty upon operaglasses becomes variable; the most expensive glasses, those with a pearl covering, will be dutiable at 25 per cent. a,d valorem, while the less expensive ones, covered with leather, or with no covering over the metal frames, will be dutiable at 45 percent. ad valorem. On the other hand, if the view prevails that are dutiable under the last clause ofthemetal schedule,'as "articles * * * not specia:lly enumerated or provided for, * ;j:. * composed * * * in part of * ** metal," then all of such articles 'will pay the same duty. 'Plaintiffs' chief contention 'is that opera-glasses are "'specially provided for" under the third mAuseof section 2499, and,'as'th'e last clause Of the. metal schedule 'only applies to articles "notsp'eciallyenumerlJ,ted or provided fOf," tbaUhey are not dutiable thereu.nder. Th'evice'of the e.rgum'entistbat it very point inC01'itroversy;' thlltis 'to my I
ALOE
v.
QHUltCHILL.
51
it assumes that opera-glasses are II specially provided for "by se.ction2499. The fact is that section,2499 does not specifically enumerate any article. That section was first enaoted on August 30, 1842, and, with sotne modifications,has ever since continued in force. It was early held, in Stuart v. Maxwell, 16 IIow. 151, that the purpose of that section was to afford a rule of construction for the tariff laws. It does not impose duties on specific articles, but enunciates a rule by which duties may be asse::;sed when articles for any reason cannot be fairly assessed under any provision of the schedules. In Arthur v. Fox, 108 U. S. 128, 2 Sup. Ct. Rep. 37l, ChiefJustice WAITE held, inaubstance, that section 2499 onlyapplies when an article is not enumerated in the schedules. He says that if an article is found not enumerated in the sclJedules, then the first inquiry should be whether it bears such a similitude to an enumerated article that it may be assessed under the first, or similitude, clause of section 2499, (HeyJ, Dig. 822.) If nothing is found enumerated ,to which it bears a ,similitude" in material, quality, texture, or use," then an inquiry is to be instituted as to its component elements, and the third clause of eection This is substantially the view taken by the court in the motion for a new trial. The contention, therefore, ,that opera-glasses are "specially provided for" in section 2499, and therefore that the last clause of the metal schedule cannot apply by reason of the exception contained in that clause, is without merit. We are remitted; then, to this question, and it seems to be the only question worthy of collsideration,-may opera-glasses be fairly termed "manufaotures.al'ticles, or wares composed in part of metal?" If they may be, then there is no occasion for invoking the provisions of section 2499, and under the authority cited it 'ought not to be invoked. The fact is, as disclosed by the testimony in this case, that all opera-glasses have metal frames of braas or steel, and the metal frame is not an inconsiderable or insignificant part of the article. The frame is a necessary part of an and generally costs more than any other component element. On the first trial of this case, for example, it took nearly a day to determine, by the testimony of experts, whether the metal frames or the shell coverings of the opera-glasses involved in the suit were the most valuable, and opinions differed widely on that point. It will not do to say, that the metal frame of an opera-glass is such an insignificant part of the article, or that it is of such trifling value when compared with other compo)'ent elements, that an opera-glass ought Dot to be classified as "an article .composed in part of metal;" on the contrary, the frame is such an important element that. even upon the plaintifls' own theory pf the law, it determines the rate of duty on the majority. per· haps of all, imported opera-glasses. It isfurthe;rurged that the phrase "ariic1es composed in partofmetal" is so general that an article not otherwise enumerated in the schedules thau"bysucl) general description is not enumerated at all, and hence that section 2499 must be resorted to. This argument, if carried to its legitimate conclusion, would render .the last clause of the metal schedule ino.pentitive; for, if it is top general to serve as a description, then alI'ar-
52
ticles not specially described, though composed in part of metal, must of necessity, for want of enumeration, be dutiable under section 2499. The true view I apprehend to be this: An article composed in part of metal, and not specially described, is not dutiable under the last clause of the metal schedule, unless a substantial part thereof is composed of metal. This is a reasonable view of the meaning of the law. It also gives some effect to the last clause of the metal schedule, and answers at the same time some of the extreme illustrations put by plaintiffs' attorney. All laws should receive a reasonable interpretation. This is one of the primary canons of construction. The" nail in the box," and" the hook on the dress," would not render the box and the dress dutiable under the last clause of the metal schedule, as "manufactures composed in part of metal," because metal is not a substantial part of either article, and no reasonable person would think of describing them as manufactures of ml'tal. But the contention that the last clause of the metal schedule is too general to be regarded as an enumeration or description of any article, is overthrown by at least two well-considered cases decided by the supreme court. Thus, in Arthurv. Susrifield, 96 Ul S. 128, which bears a strong analogy to the case at bar, spectacles were held dutiable under a general clause of the tariff law then in force, which imposed a duty of 40 per cent. "on all manufactures of glass." The same act imposed a duty of 45 percent. "on all manufactures of steel, or of which steel Viras a component part, not otherwise provided for." The court held, in substance, that as the spectacles had "steel bows," they might be classified either as "manufactures of glass" or "as manufadures of which steel formed a compone.nt part," but considered it most reasonable to q]assify them as manufactures Of glass. It expressly held, however, that in the absence of the clause imposing a duty "on all manufactures of glass" spectacles would be dutiable as "manufactures of steel, or of which steel was a component part," and that they would not be dutiable as non-enumerated articles under the similitude clause of what is now section 2499. In Artht{r's Ex'rs v. Butterfield, 125 U. S. 76, 8 Sup. Ct. Rep. 714, the court said, in substance, that the phrase "manufactures of which steel is a component part," is sufficiently explicit to amount to an enumeration or description of certain articles, and refer with approval to the decision in Arthur v. Sussjield, where it was held sufficient to embrace spectacles, and take them out of the operation of section 2499, as above shown. The case of Benziger v. Robertson, 7 Sup. Ct. Rep. 1169, on which so much reliance seems to be plac'ed, may, in my judgment, be fairly distinguished from the cases above cited, on the ground that the metal part of the rosaries involved in that case was suchan inconsiderable part of"the article that it was deemed more reato assess the duty as on beads, which are thl:l .distinguishing features of such articles. My condusion is that opera-glasses may be reasonably termed "articles composed in part of metal," because the metal frames are a necessaryand important part thereof, whether we 'regard size or value. Therefore they are enumerated by the last clause of the metal schedule, and
STEPHENSON ". COOPER.
53
are dutiable thereunder. This construction has the additional merit of rendering the duty on opera-glasses uniform, whereas the other view renders the duty variable, without any reason being shown why congress may be presumed to have intended that the duty should be variable. Judgment will be entered for defendant.
STEPHENSON ". COOPER, Collector.I
(Circuit Oourt, E. D. PennB'IIlvania. October 7, 1890.) CusTOMS DUTIES-SKEINING WORSTBD-ApP1U.ISAL.
Under section 7 of Act MarCil 8, ISSS, referring to section 2007, Rev. St., if worsted or mohair yarns is necessary to render them merchantable yarn!'l' the cost of skeining is a part of the value of the goods, and subject to duty. u skeining is necessary only for convenience in transportation from the producer to the consumer, it is a charge for putting up, preparing, and packing for sllipment, and the extra cost of skeining 11 not to be added to the other costs in computing the duty. ,
At Law. Plaintiff sought to recover the duty upon the cost of winding worsted and mohair yarns into skeins. Rev. St. § 2907, provides that "in deter-' mining the dutiable value of merchandise therE! shall be added to the cost or to the actual wholesale price or general market value at the time of exportation in the principal markets of the country whence the same is imported into the United States, * * * all other actual or usual charges for putting up, preparing, and packing for shipment." In section 7 (Act March 3, 1883) it was expressly stated that the above-mentioned charges should no longer be added in determining the value. In plaintiff's invoice the cost of skeining, together. with the cost of hanking, bundling, packing, paper, and string, were deducted. These latter were allowed, but the cost of skeining was restored by the appraiser, on the ground that skeining was part of the finishing process, and necessary to put the yarn on the market. Upon trial the testimony of plaintiff's witnesses was to the effect that the skeining process, like the hanking and bundling processes, was merely for the purposes of transportation from the manufacturer to the consumer, and was part of the actual and usual charges for "putting up, preparing, and packing for shipment" of the article mentioned in the provisions of Rev. St. § 2907. The testimony of witnesses on behalf of the government was to the effect that yarn was not in a merchantable condition when it was upon the bobbin or cops, but only after it had been skeined, hanked, and bundled. Verdict for plaintiff. Frank P. Prichard, for plaintiff. William WilkinB (hn', Asst. U. S. Atty, and Johtn R. Read, U. S. Atty., for defendant. ,'Reported by Mark WUka Collet, Esq., of the Philade1phia_