In re Downing

¶11. Customs Duties — Commercial Designation — Vermilion Red.

¶2Tfie tariff! act. of 1S90 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 ibis color which contains none. It appeared tbat at the date of the act both the genuine and the spurious were known and designated commercially as “vermilion red.” Held, that the imitation ivas subject to the same duty as the genuine, and was not dutiable under the provision of the color *471sclie&ule imposing a duty of 25 per cent, ad valorem on “other paints and colors not specially provided for.”

¶32. Same — ConstiujOTTov—Committee Reports.

¶4The 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 under the second clanse.

¶5Appeal from the Circuit Court of the United States for tlie Southern District of Yew York.

¶6At Law. Appeal iu behalf of ibe United States to the United 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 hoard of United States general appraisers.

¶7Judgment reversed.

¶8The firm of 11. 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 load, 23.71 per cent, whiting, and 3.90 per cent, eosine, and invoiced as “carmine rod.” 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 duty 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 Tarnishes,” 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.

¶9Against 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 throe and one-half cents per pound; paragraph 66, Schedules A, at throe cents per pound, — all in the act of October 1, 1800.” and in that part of said schedule entitled as aforesaid. Paragraph 61 reads as follows: “AH other paints and colors, whether dry or mixed, or ground in water or oil, including lakes, crayons, smalts and frosl'ings, 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 kno-wn 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 ]ier pound.” Upon the receipt of this protest the aforesaid collector, pursuant to section 14 of the customs administrative act of June 30, .1890, (26 Stat. 137,) transmitted the invoice of fills merchandise, and all the papers and exhibits connected therewith, to a board of three United States general appraisers on duty at the port of Now York, i:o examine and decide the case thus submitted. The board of United States general appraisers, having taken the evidence of witnesses produced before them, made the following decision:

¶10“The merchandise is a color composed of orange mineral, whiting- and cosine, and is invoiced as ‘carmine red.’ As it possesses the tint known commercially as ‘vermilion rod,’ it was returned by the appraiser as vermilion red, and duly was accordingly assessed at 12 cents per pound, under paragraph 57. Tariff Ibd. (New.) The appellants claim that iiie article is dutiable either under paragraph 61, Id., at 25 per cent, or under paragraph 65, as orange mineral, at 3y2 cents n, pound, or under paragraph 66, as red lead, at 3 cents a, pound.

¶11“The determination of the question involved in this case being of importance to many and great interests, the board gave a hearing, which was attended by importers and domestic manufacturers, and the subject has since received a careful and thorough consideration. From the testimony, *472wo find that the terms ‘vermilion’ and ‘vermilion red’ are applied indiscriminately, in the trade, to genuine vermilion, which contains quicksilver, and to its imitations or substitutes, which do not. In orders for genuine vermilion the article is usually designated as ‘English vermilion,’ while imitations and substitutes are known by fancy names, such as ‘Eureka vermilion,’ ‘Champion vermilion,’ etc. We further find that in the trade ‘vermilion red’ is not applied to articles composed of any particular material, but is held to innl trace any color that has the bright red tint once peculiar to vermilion, or sulphide of mercury.

¶12“The tariff provides, in paragraph 57, for ‘Vermilion red, and colors containing quicksilver.’ The paragraph in the bill, as it came from the house, reads, ‘Vermilion red, or colors containing' quicksilver.’ The ‘or’ was struck out by the senate finance committee, and the conjunction ‘and’ inserted. The law contains the provision thus modified. Had the paragraph remained as it passed tiie house, it would have been clear to all that the duty of 12 cents a pound was applicable only to vermilion containing, quicksilver; but it is now claimed that the change of conjunctions removed the limitation, and mado the duty applicable to any article known as vermilion red. This does, not, however, appear to have heen the intention of congress, judging from tho official record. The report of tho senate finance committee, which was adopted, so far as this modification is cohcerned, contains the clause as modified, and says, in explanation of the change of rates from the old tariff to the new, ‘This is a change from ad valorem to an equivalent specific rate.' The rate fixed is 12 cents a pound, the highest specific rate named in the schedule. Tho equivalent ad valorem rate must therefore have heen levied upon a costly material. Taking tho context, ‘Vermilion red, and colors containing quicksilver,’ and hearing 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 he about 12 cents a pound, the conclusion seems irresistible that tho intention of congress was to apply the new rate to genuine vermilion or sulphide of mercury, and not a variety of substances tinted red, hut 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 tho schedule the colors enumerated either represent particular substances, or include specified materials, for Instance: Paragraph 50, blues containing fer-roeyanide 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 thp one exception to this practice, and levied the highest specific duty in the schedule upon a tint or shade of color, regardless of tho material used to give color.

¶13“The only vermilion described in Webster, the British Encyclopedia, and other standard authorities consulted, is a combination of quicksilver and. sul-phur. Tn the opinion of the board it is upon tins 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 the importer that it is dutiable at 25 per cent, is sustained.”

¶14The collector, being dissatisfied with tbls decision of the hoard of United States general appraisers, applied to tho circuit court of the United States for the southern district of New York for a review of the questions of law and fact involved therein, under the provisions of section 15 of the aforesaid customs administrative act. Pursuant to all 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 behalf of the collector and the 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 hoard of United States general appraisers, that the 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 *473of paints or colors wliicti at the date of tlie passage of the aforesaid tariff act. was commercially known, as “vermilion” 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 Church of Holy Trinity v. TJ. S., 143 TJ. S. 45.7, 12 Sup. Ct. Rep. 511, rendered judgment affirming the decision of the board of Th'.ited States general appraisers.

¶15Edward Mitchell, If. S. Atty., and Thomas Greenwood, Asst. II. 8. Atty.

¶16Hess, Townsend & McClelland, (Wm. J. Townsend, of counsel,) for appellees.

¶17Before WALLACE and SHIPMAN, Circuit Judges.