m. ,A,tLaw.. :,A,Qtio:n to recover alleged excessive duties by thecollectol' of· QUatOInsat the port of New.York from the plaintiff$ on their importa-. tions, between November 16, 1886, and July 20, 1887, on certain fish pastes known in the trade as "Anchovy Paste" and "Bloater Paste," contained in small jars, or bottles. The collector levied duty thereon at 35 per centum ad valorem under schedule G of the tariff act of March 3;· 1883, (Tariff Index, 284,) which reads, "Pickles and sauces of all kinds, not otherwise specially enumerated or provided for in this act, 35 per centumadvalorem." The plaintiffs protested, and claimed the same to be dutiable at 25 per centum ad valorem under the same schedule, (Id. 283,}to.-wit, "Salmon and all other fish, prepared or preserved, and prepared meats .of all kinds, not specially enumerated or provided for in this act, twenty-five per centum ad valorem." The merchandise in suit was shown to be fish paste manufactured by some process or formula known only to the manufacturers thereof, whereby anchovies or bloaters were finely ground and mixed with spices, resulting in a highly seasonedmixture,generally used as a relish with other food, and as a stimulant provocative of hunger or thirst. It was shown by the evidence of several importers of and large dealers in provisions that the term "sauce" had a restricted trade meaning at the time of the passage oftlie tariff act of March 3, 1883, in which nothing was considered a sauce unless it was in liquid form; that the merchandise in suit was a paste, and not a liquid. Some of the witnesses testified that it was not only used as a relish when taken with food, hut was in itself nutritious. On motion for a direction of a verdict in favor of the defendant,defendant's attorney cited Maillard v. Lawrence, 16 How. 251; Greenleaf v. Goodrich, 101 U. S. 278; Syn. Ser. 3492. Comstock Brown, for plaintiffs. EdwardM"Uchell, U. S. Atty., and Henry C. Platt, Asst. U. S. Atty.· for defendant. LACOMBE. J., (charging jury.) It is often difficult to determine which of two parallel rules of interpretation promulgated by the supreme court shall be applied; whether we shaH take words in their general or in their special meaning. I am unable to differentiate this case from Maillard v. Lawrence, 16 How. 251,in which the circuit court had been requested to instruct the jury that if they should find that at the date of the act the shawls in question were commercially known as "manufactures of worsted, or of which worsted shall be a component material," and that they were not known in trade as "clothing, ready made," or as "wearing apparel," they were subject only to a duty of 25 per cent. This instruc-; tion was refused; and the supreme court sustained such action, holding that, while it was true ihat where words or phrases are novel or ob.. llcure, as in terms of art, it was proper to explain or elucidate them by reference to the art or science to which they were appropriate, it was not so when such words or phrases were familiar to all classes of trade and occupation; that the. popu1lu" or received import of words and phrases
228
I'EDERAL REPORTER,
vo!. 40.
furnishes the general rule for the interpretation of public laws as well as of private and social transactions. The court added that, "if it should be conceded that, in the opinion of mercantile men, shawls were not considered wearing apparel, it would still remain to be proved that this opinion was sustained by the judgment of the community generally, or that the legislature designed a departure from the natural and popular acceptation of language." The phraseology which is usedhete-" pickles and sauces of all kinds" -seems to call for an exhaustive enumeration. There is nothing in the words themselves to indicate that they are used in a particular trade meaning; and there is nothing certainly shown in the record as to the facts which were laid before congress when the act was under discussion which would indicate that they were using the word in any particular trade meaning. The article before us here is, I think, plainly within the popular definition of the word "sauce." The testimony which we have as to its use, and what is known of its constituents, is sufficient to place it in that category. Following, therefore, the decision in Maillard v. Lawrence, and its affirmance in Greenleafv. Goodrich, 101 U. S. 278, a verdict must be directed for the defendant. The jury rendered a verdict for the defendant in accordanue with the direction of the court.
FRITZSCHE
et al.
f1. MAGONE.
Collector.
(04ircuit Oourt, S. D. New York. October 22, 1889.) CuSTOMS DUTIES-CLASSIFIOA.TION-FLORAL EXTRAOTS.
Since the passage of the tariff act of March 3, 1883, (29 U. S. St. at Large, o. 121 p. 488,) floral extracts, which are articles composed of about 95 per cent of alcohol and 5 per cent. of sediment, and used in the manufacture of perfumery, are not dutiable at the rate of $2 per gallon and 50 per centum ad valorem as "alcoholic perfumery," under, the subdivision of" Alcoholic Preparations," WhICh provides for such perfumery, contained in Schedule A of said tariff act, but are dutiable at the rate of $2 per gallon 'for the alcohol contained, and 25 per 'centum ad valorem, as "alcoholic compounds n.ot.other wise specially enumerated or provided for" under the subdivision of "Alcoholic Preparations," which provides for such compounds contained in said Schedule A.
At Law. Aotion to recover back customs duties. The plaintiffs, on January 4 and April 27,1888, made two importations from France into' the port of New York of floral extracts,-jasmin and rose. These floral extracts were classified 1;>y the defendant, as collector of customs at said port, as "Alcoholic Perfumery," under the subdivision of "Alcoholic Preparations," which provides for "alcoholic perfumery," contained in Schedule A of the tariff act of March 3, 1883, (T. 1. new, par. 100,) and duty thereon, pursuant to such provision, was exacted of the plaintiffs by him, as said collector, at the rate of $2 per gallon and 50 per cent. ad valorem. this classification and exaction the plaintiffs made sufficient and seasonable protests, claiming therein that these floral ex-
I'RITZSCHE t1. IIAGONE.
229
tracts were "alcoholic compounds," dutiable at the rate of $2 per gallon for the alcohol contained and 25 per centum ad valorem under the subdi:' vision of "Alcoholic Preparations," which provides for "alcoholic compounds not otherwise specifically enumerated or provided for,"contained in said Schedule A, (T. 1. new, par. 103.) Thereafter the plaintifftl, within the time required by law, duly made appeals to the secretary of the treasury, and, within 90 days after adverse decisions were made thereon by him, brought this suit to recover the difference in duties at the rate exacted by the defendant as said collector, and at the rate claimed by them in their protests. Upon the trial it appeared that these floral extracts were colored liquids, the jasmin being of a wine and the rose of an olive green color; were composed of about 95 per cent. of alcohol and 5 per cent. of sediment; were somewhat greasy or oily to the touch, and were of a heavy fragrant odor; and that, when applied toa linen handkerchief, etc., they both left a greasy or oily stain upon it. From the plaintiffs' testimony it appeared that at and prior to the passage of the aforesaid act of 1883 the term "perfumery" was a trade term, having a more restricted meaning than the dictionary definition,and, in trade and commerce of this country, meant the finished products manufactured from various raw materials differently combined, and made ready for use as perfumery by the consumer; that in the manufacture of such finished products the various raw materials used had to be reduced in strength and rendered volatile, so that the heavy smell of them, as it was called in the trade, was made to disappear; that their different smells and odors had to be compounded in such a way as to produce imitations of nature; and that the natural <::oloring matter in these raw materials had to be treated, and the oil or grease in any'of' them removed, so that the finished products would not stain the hand..' kerchief or other article to which they were applied; that these floral extracts were not, at and prior to the passage of the aforesaid act of 1883, in trade and commerce of this country, perfumery, or included in the term "perfumery;" that they have always been in such trade and comIDJ\1'Ce regarded as, and used as, one of the materials employed in the manufacture of perfumery. From the testimony it appeared that, at and prior to the passage of the aforesaid act of 1883, in trade and commerce of this country perfumery was anything which gave a pleasant odor, and that floral extracts like those in suit were so known as, and included in the term, "crude perfumery." Comstock & Brown, for plaintiffs. Edward Mitchell, U. S. Atty., and Thnnw.s Greenwood, Asst. U. S. Atty., for defendant. LACOMBE,J., (charging jury.) These articles are compounds of alcohol: such dutiable, as alcoholic, compounds, WhICh IS the plamtlffs contentIOn, unless they are otherwise specially enume:ated in .the tariff act. The government contends that they are enumerated by the terJ;D," alcoholic perfumery." otherwIse. The defimhon ofthe term "perfumery," as given to us from the dictionary
FEDEltA,L REPORTER,
vol.AO.
which used, here, is unsatisfactory. The wordl'perfumery" is t;here definedHbya'reference only ,T""fthat is, Per(umes. in.generalj"and,whenHPerf1.'ltne"4s ,turned to, we find thatthe only definitio,n given is," Ai$ubstancethatemits a scent or odor, w}:lich affects agreE;:al;.rlythe organs ()f smelling.";< Of. courSe. new-mown hay is within this definition,. while. in one !}lay be said to be a perfume, yet the; ,meaning wliich \Ve attaoh to' the word "perfumery" in daily life is much lXIor.erestricted. The wOlld"al!lgElnerally used, means not only a substance:which emits a scent or odor, but also one which is handled, bought and sold, and used, fOl1rthe purpose of obtaiqing from it such odor whenever required. . But, of the dictionary definition of the word "we need not particularly concern ourselves. This tariff act is concerned with the trade and cQmmerceof the country, and it istherefore proper to turn to that trltdeand commerce for the definition ,of words which are used in the act. Two definitions have beenproifered here as to"lVhat the wQrd"perfumery" the trade. One witness, called the government. describes it as "anything which gives a pleasant 9dPf,j',' the articles in suit he call$.crude perfumery. That is the claim o{ the government. The witneaseson,the other side say that in trade the word "perfumery" is confined.· to ·the finished product. that can be utI.edby the consumer, and that until it is put into such a condition that the consulner into whose hAnds it. finally COmes,can use it for the purposefor which perfumery is used by individuals, it is not "perfumefy,/' as knQwn, in the trade. . .· j It is for you tode.termine, in the first place, which of those definitions,is established by the testimony in this case to be the trade definition. When you reach a conclusion upon that point, you will next say Whether ornot.these particular articles fall within that definition. Verdict plaintiffs.
CLAY
11.
MAGONE, Collector. October 28,1889.) . . . . ,.
(Oircu.tt Oourt, B. D. New York. CuSTOMS DUTIES-CLASSIFIOATION-CELERY SEED.
Since the passage of the tarifr aot of March 3, 1888, (22 U. S. St. at Large, 0. 121, p. 488,) such variety of celery seed as is not intended to be sown or planted to raise celery to be .by l)1an, is not medicinal seed, but an aromatic seed, and is not edible, and is' in a crude state, and not advanced in value or condition by refining or grinding or by other process of manufacture, is not dutiable at 20 'per centum.. (ld valorem as l·garden seed, " under the provision for" garden seeds, except seed of the sugar-beet, " contained in Schedule N of said tariff act, but is free of duty as . "l!eed, "unller the provision for "lleeds"'containedin the free-list thereof. ...' · ' , : . I, " \
Action to recover back customs duties. ";rh e plaintiff, on October 5 and December 12, 1887, and February 16, 1888,importe.d from Marseilllls, France, into the port of New York 2..P,In \',. Hales,of. celery seed. This celery seed, pursuant to the decision,of the ! q'., . ·