.tQl fUf,t1;J.fill'( time of, this ·!lAd lJ,Eg:tlmant,before,the fu11 ,bench.upon, the subject, I instrJlct you: th, ow tas ,in t,he Plain,t,iffi,f:i' first point, is a correct sta,'tem,e,nt, of: the ll\w, and in that view under the facts here, the plaintiff$are entitled j)()fl, verdict for the'llmount ,of duty exacted in excess of what should have been Qharged. This, will be subject to consideration by the and'the,coJlrt rese,rVleS the, ,right ,to enter a verdict for the defendant in case it should be satisfied that the law is not as stated in this point. ' 1't"I ... (
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I 'i
SQHW-TZ v., CADWALAJ)ER, ,Collector. .,
;,
(Ommit Ob'U?'t; E. D,
Pen7l.sYh'anm.
Apri114, 1890.) ,, ' ,.
I,'
WhE!ther an importation cit SUlphate of potash is to be used expressly tor manUre " or not, determines whether it is free, or subjeot to 20 per oeht., duty. · '. ; :, ; " , ", ·· ' l! ',,:, " ;
QF P O ' r A . . I \ J I . "
All substanoes, whetherf;!sl'E!olally provi<ied f,or eo nomine, or covered . any lan , age,descn,ptive of 'their origin 'or quallties, whioh subserve' the pur' .polle;ot eli the soil, are free, under paragraph 505¢ tM free-list. ,, " S. OF '. " ':' " In rel$tion to each other, paragraph 70 or So11edule A, Aot 1888 is general, aOO'p&ragril.:flh 501) inpeoifioj:as di1J'eren1liatll:lg from the larger olass of artioles, deof il0tash,) "the BIqallerportioQ, used as manure. "
,. with reference t,o Schedule A, par. 70, Tarifftndex, (New,) of the tariff act of 1883, whereby a duty of 20 per ceQt. ad ,vais upQl1sl,llpqll.te o( ;potash, while, in the free-list, guano, manure, expressly, used for, mfl,nure, are, free .from duty by Henry R. Schultz, to customs duties alleged to been unlawfully ex"manure salt" per ship Cuba, acted upon :fl.p iJl1portaHon of It, was cqntended by the government that it entered was sulphfl,te9f IX>tash, and liable to a duty of percent. ad valorem. The testimony. produced upon tpe, tri/1l that the article was in :&,ct Rought,)!old, llnd Used in trade:;t+,nder that name, but that the im-, pqrtatiqn ,. ;'n. mall,u(acturer of, and, the vel'-: dictw¥ favprlo! tl1.ep1aintiff. ':." , . , " E,qw{krffJ;L. ferlpins R,nd Jame8 ,OpUi'M for plaintiff. , , U. s. R. Read, u. s. Atty., for defendant. ". ,; ".. , '," ." ., Jury.) "This suit is brought to recover duo(gqods, as without au-. ties e."lCacte,d, upon I ,in. Jaw:.. ,A, .suIIlJ;1ateofpotash, discharged,. at this port, andduti!"s./llssessed. upon it",anf! to ,the ,without ,as claimed, on ,Part, to exact ,the duties SO paid. circuit 90urt ,qLthe United, 'states the
At La',V,, ,:
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'SCHULTZ V. CADWALADtl:R.
Heller fl. Magone, 38 Fed. Rep; 908. 'Thepot.tion of tariff apt,which,is in controversy here wa'3 before that court, and that casew'as' determined by the court under circumstances .which made it 'strikingly similar to the case ,now before you; and, as there ought. to be uniformity of' decisions, of course, on questions, especially under tariff, law, arid as it is just and right, so far as possible, they ought tbbe decided the. same way. I am. disposed. therefdre,. to adopt the view of the judge who tried the case in New York, in order that a similar result shall be in this case, if the facts in the case rendei such decision and right.' . I do not know the quantity of goods in the present suit, but it is stated on papers submitted to you. The collector, determining that the cargo fell a certain section of the act of congress, assessed the dutyl)f 20 per cent., whereas, on the part of the importer, it is c1l;timedthat, under auotbersection of the tariff law, they were not subject t<l any duty at alljthey were free. That this article is. sulphate of potash is beyond all question. It is so designated by the witnessljs on both sides, and is so regarded in the trade. Whether, then, the duties claimed were chargeable under that portion of the tariff act which imposed a duty of 20 per Gent., or whether they are free, is the question to be determined in this case. By paragraph 70 of the tariff act, Schedule .A, 20 per cent..duty ad valorem is imposed upon sulphate of potash; and, in the free-list, guano, manures, and aU substances ,expressly used for manure, are free from duty. So that whether this articlecomeswithin the scope of either of these sections is the question for you to determine. That this article is SUlphate of potash is beyond all question; and under ordinary circumstances, therefore, a duty of 20 per cent. would be chargeable. Whether it is relieved or not from any duty is to be determined by the construction of paragraph 505, Tariff Act, which relieves guano, manure, and all substances expressly used for manure, free from duty. I do not regard the two sections as irreconoilably inconsistent. In the first place, sulphate of potash is subject to a duty of 20 per cent.; and, in the next place, sulphate of patash used for manure or as a fertilizer is free from duty. So that it may be regarded as provei'ly understood by this act of congress that, while sulphate of potash is subject to a duty of 20 per cent., yet, if it is used for the purposes of manure, it is frell from duty. (It depends therefore, upon the use to which the article is to be applied whether it is subject to duty, or falls within the purview of the free-list.) Exception for defendant. As I have already said, all the witnesses on both sides speak of an article of sulphate of potash, which is'subject to a duty of 20 per cent.,'Cand it is to be determined now whether the use to which this article is applicable, or for which it is to be expressly used, takes it out of. the <1peratioIi of the portion of the act which subjects it to a duty of 20 per cent.) Exception for defendant. In the case in New York the article was ·sulphate of potash, upon which duty was impolled; but, as itwas held by the judge to have been proved by the evidence that it
29,2
':EDERAL REPORTER,
vol. 43.
.was to be expres81y for manure, it was held by him it was not subject to the duty iIIlPosed in the body of the act. As I said before, this article was imported as sulphate of potash, and was therefore apparently subject to a. duty of 20 per cent. j but for what purpose was it \lsed? What is the meaning of that portion of the tariff act which fronl duty all substances used for manure? I do notllee what other construction can be to the act of congress than this: that dutiable articles, if they are intended for use, or are imported for the purpose of being used, in manure, are relieved frorn duty of 20 per cent. In the language of J udgeLAcoMBE, who the case inNewYork: ;::"The clause here, paragraph 505 in the free list, reading' gtlaJ;lO, manures, and all substances expressly used for manure,' very clearlY,expresses, and there Beelps no. qoubt tpat, by theuse of this phrase, congresshas plainly said, that importedsubstancesf whether especially prOVided for eoniJmine, or covbyany descriptive of their origin or qualities, which Bubserve the purpose 'of enriching the soil, and thus increasing the crops to be raised upon it; should be free. That is the plain meaning of the paragraph i1S it stands. I think w.e should en, if; fromsomestraihed and o\'er-elaootate examination of a great many other paragraphs in the act, we should seek to SPell outsoille understanding or conception of what we might possibly infer was the intent of congress. We are entitled. to take their intent as expressed by thll plain language they have used. It is very true that the use of the word' expressly' may make this paragraph difficult of application in very mltny cases, in fact in all cases, so far as the collector is concerned; but it gives us no trouble in this particular act.ion, because there is abundant evidence here to warrant the holding th;lt these particular importations were expressly used for manure.. They have been traced frgIn theirimporter into the hands, of individuals whose sole business is the prllparation "of · fertilizers' Which word is a mere synonym for' manure;' and. should the jury draw ftomthe testimony any other ipference than that the articles were expressly used man lire, I Should be inclined to set aside the'verdict. Therefore, I tblrjk it is unnecessary to send the questi{)J1 to them. The defendant refe:rs to tllll;well-setllt)drule of interpretation. that a specific designation will prevaiJ <.lv,er agpneral one; but the clause whic,:h he contends to be a general one 505,supra,) is in reality more specific than the. paragraph undel' whi?ll he insists these imports should be classed, (paragraph 70, 'Sulphate of Potash,') from the general class of artiCles properly classified as sulphate of potftSbi smaller portion which are' expressly used for manure."'! ,So' here, while the article which is the subject of importation is genericll,lly sulphate of its dutiabla character is to be determined by the use for which it was imported, or to which it is applied. It unthe classification and dutiability of articles falling the general scope of the act by the collector j but the question is whether, unAer the act of. congress, the article is subject to duty or not, apdthat is to be by th'e purpose for whichJt is used or to used. ,Was it for man:ilfe? ,(If so, under the view Judge LACOMBE ttl-I;espfthe law, it is not stlbject to duty, and in that decision I am indined to concur.) for, defandant. . " ,¥o1;l .hlJove then article, . which is described as sulphateof '., , .
4Jc11UI,TZ
t).
ALADBR..
298
potash,shown by the testimony to have been imported by a person who is engaged in the manufacture of fertilizers, of which the sulphate of potash is the principal constituent. It was therefore intended, so far as he was concerned, to be used as manure, and we must so conclude. It then passed by sale by him to a person who was engaged in the manufacture of fertilizers, and was used in the preparation of that article of merchandise. If that be so, then you will be justified in finding that this sulphate of potash was, within the meaning of the act of congress, expressly used for ,manure; and, if so, it was not subject to any duty. If·you are satisfied upon that subject, then you would be jm;tified in finding, and you would be bound to find, that the collector was in error in imposing any duty whatever upon this article. However difficult it might have been for him to ascertain that fact, yet it would seem to be necessary to the effectuation of the attempt of congress in relieving such articles from duty altogether to inquire into the use to which this article was applied after it passed into the hands of the manufacturer. (I therefore instruct you, if you find that thisartic1e was used in the ufacture of manure, or was used as manure, that it is not subject to a duty, and yonr verdict should be for the plaintiff.) Exception for fendant. . The plaintiff and defendant have both submitted to me certain points upon which they ask me to instruct you; but, taking the view that was taken by the judge of the circuit court of the United States at New York, and desiring that there should be uniformity of opinion upon the struction of the act of congress as far as possible, I instruct you as I have done, and decline to instruct you as asked by the counsel for the plaintiff or defendant. If you find as I have stated, then your simple duty is to ascertain the amount of duties paid by the plaintiff here, and find a verdict in his favor for the amount so paid. Of courS';), I mean this importation, which is the subject before you. PLAINTIFF'S POINTS.
commerciaUyl}nown as ·sulphate of potash,' and that it is expressly used for · manure, 'your verdict must be for the plaintiff. "(2) Even if you find that the· article in question is sometimes known commercially as' sulphate of potash,' if you also find that there are other varieties of sulphate of potash used for purposes other than as manure, and that article in ql2estion is use.<! expressly for manure, then your verdict must be for the plaintiff. If,upoll all the facts in this case, there exists in your minds a doubt, your verdict must be for the plaintiff, as duties are never to be imposed on the citizen upon vague or doubtful interpretations. "(3) Under aU the evidence in this case, your verdict must be for the plaine tiff." POINTS.
"(1) If you find that the article constituting the sUbject of this suit is not
used in tr.ade as sulphate OfpotRsh, it is prOVided for in t,he tariff act of 1883 under that name; and your verdict should be for the defendant,." Refused. Exception for defendant.
"(I) It having been shown that the article in suit is bought, sold, and
f294 i ' /'
Jm)llRAL· REPORTER,:VoI.43.
(2) ThearUcle in suit is not provided for in the prov}!iions act of: paragraph DOti. T;loriff Index, (New,) of the free-hst, 'all supstanc;qs used manure,' inasmQch as the evidl'nce shows that the substance in suit is 'in of manure or fertilizers oulYi' and your verdlcts'hould be fortha defendant." ' R'efuse4.': for defendant. "(3)TlJe sulph,ate of potash, and the tariff thereon is provided lor,ior that arti91e specifically, arid will not be assessed under the more general expresSion contained in paragraph 505, Id., , all substalllles used for manure, 'and' your verdict shOUld be fOl' the defendant." . E±ceptioh, for defenc)ant. " ' "(4), Your verdict iothis case should be for the 4efendant." Refused. Exception for defendant. ' i
, The jury rendered a verdict in fator of plairititt.
BAILEyet
al. v. CADWALADER, Collector.
CUSTOMS
tered as such in the custom-bouse, will be held dutiable ap bemp; and testimony
An artiQle known in tbe trade as "East India BomMy hemp, "Invoiced anet en-
HEiMi>.
tbat It is in e11'eot a species of Sisal-grass will not cause it to be dutiable of artiole.
the rate
At Law. This suit arose concerning the classification of East India Bombay hemp, under Tariff Index, (New,) par. 331, and was brought by John T. Bailey to recover certain customs duties alleged to have been improperly exacted in an importation which was invoiced as East India Bombay hemp,whereon a duty at $25 per ton was assessed under paragraph 831, Id., relating to hetnp, manilla, and other like substances for hemp, .not Of provided for. Protest and appeal was made that it was not the hemp of commerce, nor commercially known as such, .and that it should be entered at $15 per ton as a vegetable substance not specially enumerated Of' provided for in paragraph 333, Id. Uponthe trial it was shown from the papers upon file in the collector's office that it was designated as hemp upon the bill of lading, invoice, and entry; but the testimony of the plaintiff tended to show that it could not be . used as hemp, t\n<l that it was not in fact that article, and did not grow in the same way, and could not be used as a substitute. It appeared, however, that it was bought, sold, and used in trade under that commercialdesignation; but the testimollY of the plaintiff tended to show that :it was in facta species of Sisal.,grass. The verdict was in favoro! the defendant. . ' Henry; T. Kingston, for plaintiff·.