Patton v. United States

after stating the case, delivered the opinion of the court.

1. The first assignment of error is that which is taken to the instruction to the jury that the importation in question, though called wool waste, seems to be so called only because of its resemblance to what was formerly known by this designation ; that it does not consist of refuse or broken particles thrown off in the process of manufacture, but is made intentionally, by tearing up what are called “ wool tops,” which consist of wool which has been put through several processes and prepared for spinning, and that the term “ waste ” did not embrace this commodity.

The correctness of this instruction turns upon the meaning

The importation in question consisted of wool which had been scoured, then carded and prepared ; then put upon a comb, from which it comes in long lengths, known as slivers or slubbing. It is then put through a process called gilling, which forms the slivers into a less number of slivers of greater thickness. These slivers are then taken into the drawing room and finished, from wThence they come out in the form of round balls, called “ tops.” These tops become new articles of merchandise, which are sold to the spinners, who spin them into worsted yarn.

In 1887 or 1888, owing to the depression of the wool trade in England, and the demand for waste in this country, the price of tops became so low and the price of waste so high, that the deliberate breaking up of tops began’for the purpose of exporting them to America as waste, though there is no evidence' of any importation of this character prior to 1887. The discovery that the tops thus broken up might be entered at the American custom-houses as’“ waste” produced such a sudden demand for exportation that, while the amount declared at the American consulate at Bradford, the centre •of this trade, for the last two months of 1887, and the first two .months of 1888, was only 190,088 pounds, for the corresponding months of 1888 and 1889 it rose to 1,803,558 pounds.

It appeared from the evidence that the waste, whether intentionally- or unintentionally produced, was an article háving different qualities'from the merchantable wool, and ■was used as an adulterant. It is, however, used like other scoured wool, being mixed with it in the carding machine, and is wopth only ten or fifteen cents less per pound than

If the ordinary definition of “waste,” as refuse matter thrown off in the process of manufacture, is to control, it is quite clear that the importations in question are not susceptible of this meaning. The common definition of “waste” lends no support to the theory of the defendants.

With regard to its commercial designation there was undoubtedly some testimony tending to show that, in England, merchantable tops broken up for the purpose of exportation had acquired the commercial designation of waste, or more properly, “ broken top waste; ” that the importations in question were ordered by the defendants under the latter designation, and that such waste was preferred to the ordinary waste or refuse, because the latter had too much slubbing. This designation, however, was confined to such waste as had been purchased since 1887, and threw no light upon the commercial designation of the article in question at or prior to March, 1883. There is little or nothing to indicate that the practice of breaking up merchantable tops for export prevailed in England prior to 1887, when the attention of wool dealers there geeras to have been called to the profits that could be made by exporting broken tops to America. There were, however, several witnesses produced by the defence, who were

This must, however, be taken in connection with the undisputed testimony that merchantable tops had never been broken up in England to form waste prior to 1887 or 1888, when the attention of dealers was first directed to the profits which could be made by importing them into this country under that denomination. The witnesses upon cross-examination admitted that they had never known of merchantable tops being broken up and imported here as waste prior to 1887, and their testimony, so far as it bears upon preceding years, indicates that the top waste referred to was that produced by the breaking up of discolored or otherwise unmerchantable tops, the product of which was known commercially and properly as waste or top waste. In short, the testimony upon this subject falls far short of establishing a commercial designation applicable to these articles with the certainty, uniformity, and generality required by the decisions of this court. Maddock v. Magone, 152 U. S. 368 , 371; Berbecker v. Robertson, 152 U. S. 373 , 377; Sonn v. Magone, 159 U. S. 417 . In default of such evidence, the term will be presumed to have been used in the tariff act in its ordinary sense of refuse. Swan v. Arthur, 103 U. S. 597 ; Schmieder v. Barney, 113 U. S. 645 . Taking the testimony all together, we think there was no such evidence of a commercial désignation of the articles in question as made it incumbent upon the court to submit the question to the jury. .

■But had the evidence upon this point been much stronger than it was, it is difficult to see how it could avail the defendant in view of the clause that “ the duty upon wool . . . which shall be imported in any other than ordinary condition, as now or heretofore practised, or which shall be changed in its character or condition for the purpose of evading the duty . . . shall pay twice the duty to which it would otherwise be subject.” Although it was submitted as a separate question

In this connection, we are referred by counsel for defendants to two cases which are supposed to justify the inference that imported merchandise may be treated in such manner as to change its classification, even though such change were made for the purpose of securing its importation at a lower rate of duty. In the first of these cases, Merritt v. Walsh, 104 U. S. 694 , certain sugars were given an artificial color in the process of manufacture. The sole test of their dutiable quality was their actual color, as graded by the Dutch standard. It had been decided that this meant the color of the sugar obtained by the ordinary process' of manufacture, and that any means used to degrade the color after such process was a fraud upon the revenue. As no proof was offered to show that they were artificially colored after the manufacture was completed, the court instructed the jury to find a verdict for the plaintiffs. The real question was whether (supposing that sugars were not artificially colored for the purpose of avoiding duties after being manufactured) their dutiable quality was to be decided by their actual color or by their saccharine strength. It was decided that as the Dutch standard was a color standard only, even if the sugars had been manufactured in dark colors on purpose to evade our duties, the entry at a reduced value was nevertheless lawful, and that the remedy lay with Congress alone.

2. We are also of opinion that the importations in question cannot be considered as manufactures of wool. Assuming that the tops, before being broken up, represented a stage in the process of converting the wool into cloth, which would entitle them to be. considered as manufactures; if the tops be reconverted into wool, so that the process has to be gone through with again, the wool loses its character as a manufacture and resumes its character as wool, even though it acquires the new commercial designation of waste. Waste in its ordinary sense being merely refuse thrown off in the process of converting raw wool into a manufacture of wool, cannot be considered a manufacture simply because it acquires a new designation, and if it be artificially produced by the breaking up of the tops it is with even less reason entitled to be so considered. Unless natural waste can be treated as a manufacture, artificial waste should not.

3. The remaining assignment is as to the charge of the court that, if this wool was imported scoured, and in condition other than that in which such wool was customarily imported in March, 1883, and previously, it fell within the provision of wool imported scoured. There is abundance of testimony to

There was no error in the rulings of the court below, of which the defendants were entitled to complain, and the judgment of the court below is, therefore,

Affirmed.