780
I'EDERAL UPORTER,
vol. 37.
'l.cceptance of the treasury department, as to the meaning of this particular phrase,. was that the words ",of similar description" there were not restricted to "barege delaines," but qualified "delaines" and "cashmere delailles" as well. So, when the phrase "of similar description" first came into this part of the tariff act, it was used to qualify all the articles that preceded it in the enumeration of this paragraph. The same thing appears in the act of 1862, when it was discovered that there was still another variety of delaines that congress apparently had not known of before, and to which the name "muslin" delaine was applied. UndoubtedIJ', when that name was inserted, the phrase" of similar description" qllalified "muslin" delaines just as ,much as it did "barege" delaines. In congress seems to have given1;1p all effort to describe these articles by a,lo11g list of names and the phrase "of similar description," and to have started out\Vith a new "women's and children's dress goods, composed wholly or in part 'pf wool,worsted, the hair of the alpaca,goat, or other animals," In however, it having been found that there were several articles:which COQld not he termed" women's and children's dress goods," such as Jtalian cloths, they altered the phraseology to read: "Women's and children's dress goods, and real and imitationItalian cloths." By 1883,:howerer, some other varieties of the turned up which it :was necessary .for them to enumerate; they therefore inserted the words "coat linings," so that the clause "Women's and children's dress goods, coat linings, Italian cloths,"(the words cloths" coveripg, of course, both the real and the imitation,) and then, in order to cover any new articles thai. should come, they added thewords "and goods of like description." So that the agraph now reads: "Women's an,d children's dress goods, coat linings, Italian cloths, and goods of like description." I see no reason why the phrase "goods of like description" should not be taken, in this last state of the section,as being of the same purport and intent as when it was first introduced into the tariff act, as qualifying all the articles which are enumerated in the clause preceding that phrase.. Under the evidence, seems to be no dispute, these goods, even if not as to which men's and children's dress goods," are "goods of like description" to them, or are" goods of like description" to "coat linings," or to" Italian cloths." For. that reason I shall direct a verdict for the plaintiff.
SWAYNE
'D.
HAGER, Oollector.
(Oircuit Oourt, N. D·. Oalifornia. February 25, 1889.)
t
CuSTOMS DUTIES-CLASSIFICATION-CHINESE SHOES.
Chinese shoes. consisting of ali upper part of cotton or silk and a Bole of ,.felt ·and leather, the felt being made from hair mixed with wool fiber, ami, paper. stilf.ened rice starch, are ta)(able, not under the act oU883, K, par. 14, lmposlng 40 cents per pound and 35 per cent. ad valorem on clothIng, ready-malie. and wearing apparel. not enumeJ;ated, composed wholly or in part of wool, alpaca, or other hair. made up by the tailor, seamstress,
8WAYNE t1. HAGER.
781
or manufacturer, but as non-enumerated articles at the highest rates at which their component material of chief value may be chargeable. The cotton shoes, therefore, fall under Schedule 1, par. 7, imposing 35 per cent. ad 'lJalorem on manufactures of cotton fnot specially provided for, and the silk ones under the last paragraph of Schedule L. imposing 50 per cent. ad valorem on goods not specially enumerated, made of silk, or of which silk is the component material of cbief value. 2. SAlliE. \ . A definition adopted and acted upon for a long time should not be regarded as changed by a subsequent act of congress unless the intention to change is clearly manifest. At Law. Action by R. H. Swaylle against John S. Hager, collector of customs, to recover an excess of duties paid by him. Milton Andro8 and Page &: Eells, for plaintiff. J. T. Carey, U. S. Atty. Before SAWYER, Circuit Judge. SAWYER, J. This is an action brought to recover with interest, for what is claimed to be an excess of duties over the amount req'uited be paid by law, collected upon various invoices of Chinese shoes, imported at the port of San Francisco. The shoe consists of the upper part made ofsilk or cotton, which constitutes the most valuable part of the material,and the sole, the upper part of which is composed oflayers of felt and the bottom part of leather. The felt is.manufactured in thin sheets from the hair of various animals, as dogs, cattle, and goats, intermixed with wool fiber and paper. A glue, or starch. made from rice, is added to give greater cohesion. Layers of this article are placed together, and the whole pressed into large sheets, which are then sold to manufacturers for the purpose of making shoes. Several thicknesses of these attached to the silk, or cotton uppers, with a leather bottom-piece, constitute the sole of the shoe. The question is, under what provision of the statute should duties on these Chinese shoes be levied and collected? Under, then, recent instructions from the treasury department they were classified, and duties thereon collected under the fourteenth paragraph of Schedule K, of the act of March 3,1883. (22 St. 509,) which reads as follows: "Clothing, ready-made, and wearing apparel of every description, not especially en umerated or provided for in this act, and balmoral skll'ts, and skirtin-g, and goods of similar description, or used for like purposes, composed wholly or in part of wool, worsted, the bair of the alpaca· goat, or other animals, made up or manufactured Wholly or in part by the tailor, seamstress, or manufact.urer, exct'pt knit goods,forty cents per pound, and in addition thereto, thirtyfive per centum ad valorem." The importer claims that inasmuch as the goods' are non-enumerated articles, "manufactured of two onnore materials," the duties should have been assessed "at the highest rates at which the component material of chief value may be chargeable," under section 2499 of the RevisedStatutes as amended by the act of March 3,1883, (22 St. 491.) The clause of said section under which it is cjaimed that the goods should be classified reads as follows:
ts!
FEDERAtJ "RJtPORTEll,' v61.
37.
two or more thedutysllall be I\ssessed attb'e hlgh('st tatesat the componimt material of chief value' nut:>' be If, rates of duty should be applicable to any importild article, it shall be classified for duty under, the ,highest;of such rates :" provided, that non-enumerated articles similar in material and quality and texture, and the use to which, they may be applied. to articles on free list,and in the manufacture of which no dutiable ,materials are used, shall , '
, Under this statute, the importerful'ther claims, that,the cotton shoesthe cotton being the most valuable part of the material-should be assessed under paragraph ,7 , of Schedule I,'of the I'\.()t of 1883. as "ml.\nl1factures of cotton not specially enumerated or provided for." pro:vision is as follows: "Colton coros, braids, gimps, galloons. webbing, goring, suspenders, braces, and all manufactures of COlton not specially enumerated or provided for in this act. and corsets, of whatever materiatcomposed, thirty-five per centum act Val01'e1l,l'" .22,St..,506. ,'.' , '
" ,,",A.lIlitoo,ds, wares, and merchandjR6, not specially enumerated or provided f6rin this'act. m,ade of or. of which silk is the component material of chief'vWoe; fifty percent. ad 22 St. 510. '
",And;pnthe ,silk shoes,'ih'Jike duties should be levied under the last p/l.fagraphof as a non-enumerated article Inade of $ilk, or of is material of chief value." The follows:,' ,"
, After.'a eX,aminationQfthese provisions of the statute,and the rules of cOl}stl;qctionof re:v.enue down by the United States supreIne court. in the '()ited on behalf of the plaintiff,. I am satisfieq that t1,letreasury idepartnwnt wrong, and the complainant right, in their af..tha statute. I do not think the shoesin "I,hoUy W',iIlpart of hair," within the question of the statute. The component of the shoes are eotton, or sIlk,' felt, and leather. .1h,eseare tb,e. parts as used by the manufacturers of shoes. It is true one oJ the elements used in themanuliwture offelt. But I do not intended, by this classification, to include all the uHimateel'em'ents that may have entered into an' article. Sucll be too ,ni<le/or purposes. I think also, to textile, fabnps.For rules of construction on. this 151; Arthurv. Morrison, 96 U. ,S.110; 'OohW Y. Seeberger, 30 Fed. Rep. 42.5; Greenleaf v. Worthington, 26 Fed. Rep.'80B; Riggs VI' [irick, Taney, 100. So, also, in my opinion; shoes' werel'iofiritended to be'inCluded in the terms, "wearing apparel of every description,"in the provision cited fr.om Schedule K. By ing it with the "wearing apparel' ' * maue up or manufact'U'red wholly or iripartby the tnilor,seamstress, or manufacturer," it seems evident that congrsss intended othermanufilCturers of a class similar to il:"tailor, or seamBtl'ess"-"something ejusdem generi8.", The principle l1108Ci6ur OJ sociis appear& to me 'to be applicable. A shoemaker is' notio:anyrespect similar to a tailor, or seamstress. . In ordinary popular use of language, no one, I presume, would fora l1loment think that
HAKE V.BRO\f;N.
783
_,ell-oes included in the. terms" wearing apparel." See the following dtecisipns supporting and illustrating the coustructiopadopted: . Oqte8 v. Bank, 100 U. S. 239, 244; Bend v. Hoyt,13 Pet. 268,270-272;' Adams v. Bancroft, 3 Sum. 384, 386; Reiche v. Smythe, 13 Wall. 162. Chinese have been imported formore tpan 20 it is understood tllat during all the time .and for years after the passage of the act in question, they have been classified as manufactures of silk and cotton vely. A definition adopted an<,l acted upon for a long time should .not be regarded as changed by a sQ,b!lequent act ofcongress,. unless th,e intention to change is, clearly, manifest. Reiche·v. Smythe, 13 Wall. 162; IJe Fore$t, v" Lawrence, 13 How. 274. See, also, Edward8 v. Darby, 12 Wheat, 210; Hahn v. U. S., 107 U. S. 402, 406, Sup. Ct. Rep. 494; U. S. v. Pugh, 99 U. S. 269; Robertson v. Downing,l27 U. S. 608, 613, -8 Sup. Ct. Rep. 1328, and cases therein cited. I the classification should be made, and ;duties levied nnder the several .provisions cited .as 'eWmed by the importer. Let there I;>e findings and judgment accord.ingly. ,; ;.
HAKE". BROWN
et al. . · J '
{(JVrcuit Court. B. D. New York. March:5,.1Bell.) , "
:1;PATlllWTS FOR
-S.
. ,Letteri(patent No. 219A64, September 9,1879. to Philip Hake, descl'ibtra methOd of making bevel--edged cards, and ornamenting the edges by 'Piling them: Qbliquely so th:at the slope ,!f the J?,:ck corresponds to the fleyel, ..9P!:?pressing them to hold tl).em posItIon, beveling, Qrnament!hg, andJinuhmg the whole pack on theslopmg edge, and successively treatmgthe other sides and ends in the same manner. B.eveling in packs was not new, butarobliquely, and treating one side or end till all ,were complete, did not appear to have been previously Packs can be"thus grooved, embossed, or ornamented so as to present beveled designs,whMh cQuldnot be produced by treating the cards separately; and the'method ·of making bevel-edged cards of any design is greatly facilitated; Held, that such method of treating the cards is novel arid patentable, and claim 1, which is for such me.thod. is valid. . . .. . '
CA1U>S-fRo_·
,8: SAME--VALIDITY-DISOLArMER ON TRIAL.
.. But, 8S bevel-edged cards were old, and as those made by the process dif. .fered from others in no way unless in design, Claim 2 of the patent, which is . for a c9.rd treated in the rnanner described, is invalid. . . Though under Rev. f!t. U. S. § 4920; subd. 4, the. patent might be held void . because it covers a material thing not invented by the patentee, yet, under sectiOn 4922, as no willful default or intent· to defraud or mislead appears, .complainant, in a suit for infringement, which is established, may have a decree, : witho\lt costs, on filing a disclaimer of the.second claim.
In Equity. , , Suit by Philip Hake against George F. Brown and another, Jqr.the .infringement of a ,Arthur.". fororator. .,Walter D. Ednwnda, for. defendants_