Seeberger v. Schlesinger

delivered the opinion of the court.

This case involves the proper classification for duties under the act of March 3, 1883, c. 121, 22 Stat. 488 , of Chinese goat skins and pearl opera glasses.

1. In reference to the goat skins, the court found that the plaintiffs imported and entered at the custom-house in the port and district of Chicago certain Chinese goat skins, dressed and finished, upon which the plaintiffs paid a duty of 40 per cent ad valorem, as “ rugs ” not otherwise provided for, classified and, assessed by the defendant collector, under Schedule K, act of March 3,1883, namely: “ Carpets and carpetings of wool, flax, or cotton . . . not otherwise herein specified, forty per centum ad valorem ; and mats, rugs . . . shall be subjected to the rate of duty herein imposed on carpets.” Plaintiffs paid these duties under protest, and appealed to the Secretary of the Treasury, claiming that such merchandise should be assessed at a duty of 20 per cent ad valorem under Schedule N, “ Sundries,” as “ skins dressed and finished, of all kinds, not specially enumerated.” The court further found “ that the goods in question were’described in the invoice as ‘ Chinese goat skins; ’ that they are tanned with the hair on so that the skin is soft and pliant; that none of the skins are whole or entire, but that the articles imported are made of pieces of skins tanned as aforesaid, loosely sewed together so as to make large parallelogram-shaped pieces about 18 inches wide by 36 to 48 inches long; that they are advertised and sold to some extent for floor rugs, and are sometimes lined and trimmed for sleigh and carriage robes; that they are not always used in the shape imported, but are sometimes cut apart at the seams, or cut into strips and dyed, and used for trimming lap robes, overcoats,” etc.

The plaintiffs took the ground in their protest, and in this they were sustained by the court below, that they should be classified under Schedule N, “Sundries.;—Skins dressed and finished.” The clause relied upon is one providing-for the assessment of leathers, and reads as follows (page 513):

“ Leather, bend or belting leather, and Spanish or other sole leather, and leather not specially enumerated or provided for in this act, fifteen per centum ad valorem.

“ Skins for morocco, tanned, but unfinished, ten per centum ad valorem.

“ All manufactures and articles of leather, or of which leather shall be a component part, not specially enumerated or provided for in this act, thirty per centum ad valorem.”

It is insisted, however, that the item of “ skins dressed and finished,” read in connection with the residue of the clause, and particularly with “ skins for morocco, tanned, but unfinished,” indicates that, by “ skins dressed and finished ” were meant skins dressed and finished in the similitude of leather; that is, by having the hair removed; and that a reference to the corresponding clause of the Revised Statutes, section 2504, page 477, shows still more clearly that the clause in question was not intended to include skins with the hair on:

“ Leather. — Bend or belting-leather, and Spanish or other sole leather : fifteen per centum ad valorem; calfskins, tanned, or tanned and dressed: twenty-five per centum ad valorem; upper leather of all other kinds, and skins dressed and finished of all kinds, not otherwise provided for: twenty per centum ad valorem; skins for morocco, tanned, but unfinished: ten per centum ad valorem; manufactures and articles of leather, or of which leather shall be a component part, not otherwise provided for, thirty-five per centum ad valorem.

“Leather and skins japanned, patent, or enameled: thirty-five per centum ad valorem.

“ All leather and skins, tanned, not otherwise provided for: twenty-five per centum ad valorem.”

In this court, it is further claimed by the collector that while none of the clauses referred to include skins of animals with the hair on eo nomine, the goat skins in question fall either directly or under the similitude clause within the description of “dressed furs on the skin,” page 513, and were dutiable at twenty per centum ad valorem ; that although goat skins are

The commercial designation of an article, however, is not a matter of which courts can take judicial notice, but is a fact to be proved like any other — by evidence. In this case there is no finding as .to the commercial meaning of the word “furs,” and no testimony whatever upon the subject, for clearly neither the opinion in the Astor case nor the extract from the encyclopedia can be considered as legitimate testimony. In short, the case was tried wholly upon the theory that the goat skins in controversy were either “rugs” or “ skins dressed and finished.” The collector, therefore, is in no position, as the case is now presented, to ask for a reversal upon this ground; but as the case, must be reversed upon another ground, both parties will be at liberty upon a new trial to introduce testimony upon the,.question of commercial usage.

2. With reference to the opera glasses, the court found that the plaintiffs had imported certain shell-covered opera

The court further found from the proofs that the “said opera glasses are composed of silver or nickel-plated metal tubes, fitted to slide within each other, and held together by a metal framework or connections, said tubes containing glass lenses properly fitted therein, and that said tubes are enclosed in' a cover of polished mother-of-pearl; that the shell, when manufactured, or brought to the proper shape for such cover and properly polished, costs more than the glass lenses and metal tubes and frame when finished and ready to be combined with said pearl to make a complete opera glass.”

In this connection; our attention is called to the fact that, while an exception was taken to the ruling of the court with respect to goat skins, none was taken to its rulings with respect to the opera glasses. This, however, is immaterial, no exception being necessary, in case of special findings by the court, to raise the question whether the facts found support the .judgment. St. Louis v. Ferry Co., 11 Wall. 423 , 428; Tyng v. Grinnell, 92 U. S. 467 , 469; Insurance Co. v. Boon, 95 U. S. 117 , 125; Allen v. St. Louis Bank, 120 U. S. 20 , 30.

The court below was of opinion that, taking the designation of “shells, whole or parts of, manufactured,” found in Schedule N, page 514, in connection with the last clause of Rev. Stat. § 2499, that “ on all articles manufactured from two or more materials the duty shall be assessed at the highest rates at which the component material of chief value be chargeable, these opéra glasses should have been classified as manufactured shells, inasmuch as it appeared that the shell, when manu

We think the court was in error in holding that the articles in question were shells, whole or parts of, manufactured, as this clause was obviously intended to apply to articles made entirely, or nearly so, of shell, such as combs, bracelets, chains, and lorgnons, and not to articles of which shell was a mere component, though perhaps, as in this case, the most valuable part. Nor are we satisfied that they should be classed as “ articles manufactured from two or more materials,” in which case, by Rev. Stat. § 2499, % as amended by the act of 1883, ( 22 Stat. 491 ,) duty should be assessed at the highest rate at which the component material of chief value may be chargeable. In view of the more specific designation in Schedule C, page 501, of “ manufactures, articles, or wares not specially enumerated or provided for in this act, composed wholly or in part of . . . metal,” and in view of the fact that, while -the metal is not the component of chief value, it is a substantial part of the finished glass, and the framework upon which the lenses and shell are mounted, we think these articles should be classed as manufactures of metal. We do not wish to be understood as holding that, if the metal be a mere incident or an immaterial part of the completed article, as, for instance, the screws or knobs upon an article of household furniture, or the buttons upon an article of clothing, such articles should be classified as manufactures in part of metal; but where, as in this case, they form a necessary. and substantial part of the article, we think this clause should determine their classification. Particularly is this so in view of the fact that opera glasses are frequently made of glass and metal alone, or with an outer covering of leather, which would form an inconsiderable part of the total expense. It would be obviously unjust that these cheaper glasses should pay a

Practically the same question was before this court in Solomon v. Arthur, 102 U. S. 208 , in which the question arose as to the proper classification'of goods composed of silk and cotton. The collector laid a duty upon them as “ manufactures of silk or of which silk is the component part of chief value, not otherwise provided for;” and the question was whether they were “ otherwise provided for ” as “ manufactures composed of mixed materials, in part of cotton, silk, wool or worsted, or flax.” The goods in question were confessedly embraced in both descriptions;' but as “ manufactures made of mixed materials, in part of cotton, silk,” etc., was more general than that of “ manufactures in which silk is the component part of chief value,” the two phrases were interpreted to read as follows: “ Goods made of mixed materials, cotton, silk, etc., shall pay a duty of thirty-five per cent; but if silk is the .component part of chief value, they shall pay a duty of fifty per cent.” So by analogy we may read the two clauses in question in this case as follows: “ On all articles manufactured from two or more materials the duty shall be assessed at the highest rates at which the component material of chief value may be chargeable, provided that if such articles are composed wholly or in part of metal, they shall be dutiable at forty-five per cent.” So in Hartranft v. Meyer, 135 U. S. 237 , the question was whether cloth composed partly of silk, partly of cotton, and partly of wool, silk being the component material of chief value, should be classified as “ manufactures of' wool of every description, made wholly or in part of wool, not specially enumerated or provided for in this act,” or 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.” It was held that, as the latter clause was narrower and more limited than the other, they should'be classified as silk goods. In the case of Liebenroth v. Robertson, 144 U. S. 35 , photographic albums made of paper, leather, metal clasps and plated

The views of the courts of the different circuits have not been uniform with respect to the classification of these glasses, but we agree with the district judge in the cáse of Aloe v. Churchill, 44 Fed. Rep. 50 , that they should be classed as manufactures composed in part of metal under Schedule C, and, therefore, dutiable at forty-five per cent.

The judgment of the court below is, therefore,

Reversed, and the case remanded for fm'ther proceedings in conformity with this opinion.