Robertson v. Edelhoff

delivered the opinion of the court.

This is an action brought in the Superior Court of the city of New York, by Charles August Edelhoff and Emil Rinke against William H. Robertson, collector of the port of New York, on the 25th of March, 1881, and removed by the defendant into the Circuit Court of the United States for the Southern District of New York, to recover an excess of duties paid under protest on goods entered at the custom house on the 20th of August, 1883, the duty having been paid on the same day.

The case was tried by Judge Coxe and a jury, on April 12th, 1886. The articles in dispute were ribbons, composed of silk and cotton, in which silk was the component material of chief value. There was due protest and appeal. The collector assessed a duty of 50. per cent ad valorem upon the goods, under the following clause in “ Schedule L. — Silk and Silk Goods,” in section 2502 of Title 33 of the Revised Statutes, as enacted by the act of March 3,1883, 22 Stat. 510 : “ All goods, wares and merchandise, not specially enumerated or provided for in this act, made of silk, or of which silk is the component' material of chief value, fifty- per centum ad valorem.” The plaintiffs claimed in their protest and upon the trial-'that the goods were liable to only 20 per cent duty, under the following provision in “ Schedule N. — Sundries,” of the same title, 22 Stat. 512 : “Hats, and so forth, - materials • for: Braids, plaits, flats, laces, trimmings, tissues, willow-sheets and squares, used for making or ornamenting hats, bonnets and hoods, composed of straw, chip, grass, palm-leaf, willow, hair, whalebone, or any other substance or material, not specially enumerated or provided for in this act, twenty per centum ad valorem.”

That the articles in question, silk being their component material of chief value, were liable to a duty of 50 per cent ad valorem, as “ goods, wares and merchandise, not specially enumerated or provided for in this act, made of silk, or of which silk is the component material of chief value,” if they were not spécially enumerated or provided for in the act of 1883, is plain. The question, and the only question, therefore, is whether they come under the clause, “ Hats, and so forth, materials for: ” as being “ trimmings,” “ used for making or ornamenting hats, bonnets and hoods,” composed of any of the seven substances specifically named, “or any other substance or material, not specially enumerated or provided for in this act,” and were thus liable to a duty of only 20 per cent ad valorem.

It is to be especially noted that the act of 1883 does not, in Schedule L, in regard to silk and silk goods, or elsewhere,

We think it perfectly clear that the words “composed of,” in the 20 per cent clause above quoted, relate to the eight articles previously specifically mentioned in that clause, and not to the words “ hats, bonnets and hoods; ” also, that the words in the same clause, “ not specially enumerated or provided’ for in this act,” relate to the same eight articles, and not to the words “ hats, bonnets and hoods,” or to the words “ any other substance or material.” The clause is to be read as if the word “ and ” were inserted before the word “ composed ” and again after the word “ material,” so that the clause, as far as the question involved in the present case is concerned, would read: “Trimmings used for ornamenting hats, bonnets and hoods,'and composed of” any of the seven articles specially named, ■“ or any other substance or material, and not specially enumerated or provided for in this act.”

We cannot agree with the contention of the defendant that the words “any other substance or material” are to be read as if they were “any other Uke substance or material; because, while “straw, chip, grass, palm-leaf, willow” are vegetable substances, “ hair ” and “ whalebone ” are animal substances. There is no identity of genus among the two descriptions of articles specifically mentioned; and we see no warrant for interpolating the word “ like,” and applying it distributively to each of the two classes of substances specifically mentioned. The contention that, in the presence of the words “any other substance or material,” the naming of seven substances specifically is surplusage and without meaning, because the words “any' other substance or material” are adequate to cover those seven substances, seems to us without force in view of the well-known tautological phraseology of provisions in tariff acts.

There is a clause in Schedule N of section 2502 of Title 33 of the Revised Statutes, as enacted by the act of March 3, 1883, 2B Stat. 511, which it is proper to consider in connection

It will conduce to the solution of the question' in hand to consider prior legislation on the subject.

In section 22 of the act of March 2,1861, c. 68, 12 Stat. 192 , a duty of 30 per cent ad valorem was imposed on “ flats, braids, plaits, sparterre and willow squares, used for making hats and bonnets,” and on “ hats and bonnets for men, women and children, composed of straw, chip, grass, palm-leaf, willow, or any other vegetable substance, or of hair, whalebone, or other material, not otherwise provided for; ” and by section 16 of -the same act, (p. 186,) the following duties were imposed on silk and silk articles: “ On silk in the gum, not more advanced in manufacture than singles, tram, and thrown or organzine, fifteen per centum ad valorem; on all silks valued at not over one dollar per square yard, twenty per centum ad valorem; on all silks valued at over one dollar per square yard, thirty per centum ad valorem; on all silk velvets, or velvets of which silk is the component material of -chief value, valued at three dollars per square yard, or under, twenty-five per centum ad valorem; valued at over three dollars per square yard, thirty per centum ad valorem; on floss silks, twenty per centum ad valorem; on silk ribbons, galloons, braids, fringes, laces, tassels, buttons-, button cloths, trimmings, and on silk twist, twist composed of mohair and silk, sewing silk in the gum or purified, and all other manufactures of. silk, or of which silk shall be the component material of chief value, not otherwise provided for, thirty per centum ad valorem.”' By this provision, a duty of 30 per cent was imposed on “ silk ribbons ” by name. No question of the kind before us could .have arisen under that statute.

In section 8 of the act of July 14,1862, c. 163-, 12 Stat. -551, are found the following clauses in regard to duties : “ On bonnets, hats and hoods, for men, women and children, composed

By the act of June 30, 1864, 13 Stat. 202 , duties on imports were increased, and by section 8 of that act, (p. 210,) from July 1, 1864, in lieu of existing duties, the following were imposed on silk and articles of silk: “ On spun silk for filling in skeins or cops, twenty-five per centum ad valorem. On silk in the gum not more advanced than singles, tram, and thrown or organzine, thirty-five per centum ad valorem. On floss silks, thirty-five per centum'ad valorem.. On sewing-silk in the gum or purified, forty per centum ad valorem. On all dress.and piece silks, ribbons and silk velvets, or velvets of which silk is the component material of chief value, sixty per centum ad valorem. On silk vestings, pongees, shawls, scarfs, mantillas, pelerines, handkerchiefs, veils, laces, shirts, drawers, bonnets, hats, caps, turbans, chemisettes, hose, mitts, aprons, stockings, gloves, suspenders, watch-chains, webbing, braids, fringes, galloons, tassels, cords and trimmings, sixty per centum ad valorem. • On all manufactures of silk, or of which.silk is the component material of chief value, not otherwise provided for, fifty per centum ad

No subsequent legislation until the Revised Statutes of June 22, 1874, affected the duty on silk ribbons. In “ Schedule M. — Sundries,” of section 2504 of the Revised Statutes, 2d ed. p. 474, were contained the following provisions : “ Bonnets, hats and hoods, for men, women and children, composed of chip, grass, palm-leaf, willow, or any other vegetable substance, hair, whalebone, or other material, not otherwise provided for, forty per centum ad valorem; composed of straw, forty per centum ad valorem;” and p.476: “ Hats, etc., materials for. — Braids, plaits, flats, laces, trimmings, tissues, willow sheets and squares, used for making or ornamenting hats, bonnets and hoods, composed of straw, chip, grass, .palm-leaf, willow, or any other vegetable substance, or of hair, whalebone, or other material, not otherwise provided for, thirty per centum ad valorem; ” and in “ Schedule H. — Silks and Silk Goods,” p. 469 : “ Silk in the gum not more advanced than singles, tram, and thrown or organzine, thirty-five per centum ad valorem. Spun silk for filling in skeins or cops: thirty-five per centum ad valorem. Floss silks, thirty-five per centum ad valorem. Sewing silk in the gum or purified, forty per centum ad valorem. Silk twist, twist composed of mohair and silk, forty per centum ad valorem. Dress and piece silks,' ribbons and silk velvets, or velvets of which silk is the component material of chief value, sixty per centum ad valorem. Silk vestings, pongees,, shawls, scarfs, mantillas, pelerines, handkerchiefs, veils, laces, shirts, drawers, bonnets, hats, caps, turbans, chemisettes, hose, mitts, aprons, stockings, gloves, suspenders, watchmhains, webbing, braids, fringes, galloons, tassels, cords and trimmings, and ready-made clothing of silk, or of which silk is a component material of chief value, sixty per centum ad valorem. Buttons and ornaments for dresses and .outside garments made of silk, or of which silk is the componént material of chief value, and containing no wool; worsted, or goat’s hair, fifty per centum ad valorem. Manufactures of silk, or of which silk is the component material of chief value, not otherwise provided for, fifty per. centum ad valorem.”

Then came the act of February 8, 1875, 18 St&t. 307, by the first section of which the following provision was made in regard to duties on silk and articles of silk, in lieu of then existing duties: “ On spun silk, for filling, in skeins or cops, thirty-five per centum ad valorem; on silk in the gum, not more advanced than • singles, tram, and thrown or organzine, thirty-five per centum ad valorem; on floss silks, thirty-five per centum ad valorem; on sewing silk, in the gum or purified, forty per centum ad-valorem; on lastings, mohair cloth, silk twist, or other manufactures of cloth, woven or made in patterns of such size, shape, or form, or cut in such manner as to be fit for buttons exclusively, ten per centum ad valorem ; on all goods, wares and merchandise not otherwise herein provided for, made of silk, or of which silk is the component material of chief value, irrespective of the classification thereof for duty by or under previous'laws, or of their commercial designation, sixty per centum ad valorem : Provided, That this act shall not apply to goods, wares, or merchandise which have, as a component material thereof, twenty-five per centum or over in value of cotton, flax, wool, or worsted.”

By that act, ribbons of silk, or ribbons in which silk was the component material of chief value, were not made dutiable eo nomme, but were dutiable at 60. per cent, as “ goods, wares and merchandise not otherwise herein provided for, made of silk, or of which silk is the component material of chief value.” They were not otherwise provided for in the act of 1875. This act superseded all prior statutes in regard to goods made of silk, or of which silk was the component material of chief value. Of course, under the act of 1875, the goods in question here would have been dutiable at 60 per cent.

Then came the act of 1883, the three provisions in which, in regard to “Bonnets, hats and hoods,” “Hats, and so forth,

Section 6 of the act of March 3, 1883, provides that, on and after the 1st of July, 1883, “ the following sections,” being twenty-three sections, one of which is section 2502, with Schedules A to N, “ shall constitute and be a substitute for Title thirty-three of the Revised Statutes of the United States,” thus abolishing all enactments found in the original Title 33, in regard to duties on imports.

It is thus seen that, by the act of 1883, no duty is imposed upon silk ribbons by name. Under the Revised Statutes of 1874 silk ribbons, being charged byname with a duty of 60 per cent, were not charged with a duty of 50 per cent as manufactures of silk, or of which silk is the component material of chief value, not otherwise provided for,” beeause they were otherwise provided for; and they could not have been liable to.a duty of 30 per cent as “trimmings . . . used for . . . ornamenting hats, bonnets and hoods,” and not

The question, however, is not only clear on principle, on a review of the statutory provisions, but it is disposed of by decisions of this court.

In Arthur v. Zimmerman, 96 U. S. 124 , the articles imported were composed of cotton, and were known commercially as “hat braids.” The collector imposed duty upon them under that clause of section 6 of the act of June 30, 1864, 13 Stat. 209 , which provided for a duty of 35 per cent on “ cotton braids, insertings, lace trimmings or bobbinets, and all other manufactures of co'tton.” The importers claimed that they were dutiable at only 30 per cent. It appeared that the articles were used exclusively for making and trimming hats and bonnets, and the Circuit Court and this court held them to be dutiable at only 30 per cent, under tliat clause of section 8 of the act of July 14, 1862, c. 163, 12 Stat. 557 , and of Schedule M of section 2504 of the Revised Statutes, (2d ed. p. 476,) which imposed that rate of duty on trimmings used for making or ornamenting hats, bonnets and hoods, and composed of other material than the substances specifically named, and not otherwise provided for.

But the question in regard to goods substantially identical with those in question in the present case 'was presented to this court and decided by it in the case of Hartranft v. Lang feld, 125 U. S. 128 . The goods in that case were imported into Philadelphia, and entered at the custom house there in

The articles in the Langfeld case were velvet ribbons made of siljt and cotton, in which silk was the material of chief value. The collector assessed upon them a duty of 50 per cent, under that clause of Schedule L of section 2502 of Title 33 of the Revised Statutes, ás enacted by the act of March 3, 1883, 22 Stat. 510 , before, quoted,, which reads as follows: “ All goods, wares and merchandise, not specially enumerated or provided for in this act, made of silk, or of which silk is the component material of chief value, fifty per centum ad valorem.” The plaintiffs in the suit claimed, and the jury found, under the instructions of the court, that the duty ought to have been assessed under the paragraph in Schedule N of section 2502 of the same title, providing for “ Hats, and so forth, materials for: ” aboVe quoted, and' that the duty should have been only 20 pér cent. The goods in question there were “ trimmings,” and were used “ for making or ornamenting hats, bonnets and hoods.” There was no evidence that they were used exclusively for that purpose. The testimony on the part of the plaintiffs tended to show that they were used chiefly for making or ornamenting hats, bonnets and hoods, but that they might also be, and sometimes were, used for trimming dresses. The testimony on the part of the defendant tended to show that they were dress trinimings equally with hat trimmings, and were commonly used as much for the one purpose as the other. The Circuit Court charged the jury that the use to which the articles were chiefly adapted, and for which they were used, determined their character “within the meaning of the statute; and that, if .the articles were hat trimmings, chiefly used for making and ornamenting hats,’ the jury should find a verdict for the plaintiffs, the suit having

It appears by the opinion of this court that it was contended here, on the part of the defendant, that the true construction of the statute was not only that the use of the material must be for making or ornamenting hats, bonnets and hoods, but that the material itself must be in some one of the forms named in the clause regarding “Hats, and so forth, materials foi\” This court, however, held that, under the charge of the court as given, die objection was not well taken that the charge would have authorized a recovery if the goods in question were materials used for making or ornamenting hats, although not coming within the enumeration of the articles so specified. This court further said that the Circuit Court instructed the jury that they must, find the goods in question to be “ trimmings,” chiefly used for making or ornamenting hats, bonnets and hoods, composed of a material not otherwise specially enumerated or provided for. This court also said that velvet ribbons were not specially mentioned as. subject to a duty by that name or description; that they were manifestly trimmings, according to the natural meaning of

Therefore, in addition to the conclusion which results from considering the history of the legislation on the points involved, we are of opinion that the decision in the case of Hartranft v. Langfeld controls this case, and that it was proper for the Circuit Court to direct a verdict for the plaintiffs. Such practice has been often sanctioned by this court. There was no question of fact i'or the jury, and the defendant did not ask to go to the jury. Bevans v. United States, 13 Wall. 56 ; Walbrun v. Babbitt, 16 Wall. 577 ; Hendrick v. Lindsay, 93 U. S. 143 ; Arthur v. Zimmerman, 96 U. S. 124 ; Arthur v. Morgan, 112 U. S. 495 ; Anderson County v. Beal, 113 U. S. 227 , 242; Marshall v. Hubbard, 117 U. S. 419 ; North Pennsylvania Railroad v. Commercial Bank, 123 U. S. 727 , 733.

Judgment affirmed.