160
FEDERAL REPORTER,
vol. 44. Collector.
DIECKERHOFF
et al. v.
ROBERTSON,
(CircuU Court, So D. New York. November 25, 1890.) CtrSTOMIl DUTIES-CLASSIFICATION-"PINS, SOLID HEAD OR OTHER. II
"Mourning pins, " "hat pins, " "bonnet pins," "shawl pins," being, articles composed of a IIteelol' hardened-iron shank, varying in length according to the specific designation of the article. from one inch to five inches, pointed at (>De end, and having around or cut head of glass or jet, either polished or dull, and "safety pins," being an article composed of brass. having a shank of about one inch and a' quarter in length, the point being protected by a shield or guard of the same material, are "pins, solid head or other, "dutiable 30 per cent. ad valorem under Schedule C of the tariff act of March 8,1883, (Tariff Ind. par. 209,) and not "manufactures, articles, or wares not specially enumerated or provided for in this act, composed wholly or in part of iron, steel, copper, lead, nickel, pewter, tin, zinc, gold, silver, platinum, or any other metal, and whether partly or wholly manufactured," dutiable at 45 per cent. ad valOTllffl, (same schedule, Tariff Ind. par. 216.)
At Law. Action to recover back duties alleged to have been illegally exacted by the defendant, collector of the port of New York. The goods involved in the present suit were imported by the plaintiffs from Germany and England in 1883 and 1884, and were invoiced in the English and German languages as "mourning pins," "hat pins," "bonnet pins," "shawl pins," and" safety pins;" and were classified by, the collector as to the mourning, hat, bonnet, and shawl pins as "manufactures of glass and steel," dutiable at 45 per cent. ad valorem, under Schedule C of the tariff act of March 3, 1883, (Tariff Ind. par. 216,) and as to the safety pins as "manufactures of brass," dutiable at 45 ppr cent. ad valorem, under the same schedule and paragraph. The plaintiffs duly protested in the <fase of each' entry, claiming the articles to be dutiable at 30 pet cent. ad valorem, under the provision of Schedule C of said tariff, (Tariff Ind. par. 209,) as "pins, solid head or other," and duly appealed from the cision of the collector to the secretary of the treasury, who affirmed the classification of the collector. The plaintiffs' witnesses gave testimony showing that the articles in question, with the exception of the safety pins, were manufactured of steel or hardened iron, with glass or jet heads, the mourning pins varying in hmgth from one to two inches, the shawl pins being somewhat longer, and the hat pins reaching, as to some of the articles included in the invoices, a length of five inches; that the mourning pins were used for the purpose of pinning articles of wearing apparel of black or dark colors; that the shawl pins were used for fastening ladies'shawls or belts; and that the hat or bonnet pins were used to fasten ladies' hats or bonnets upon the head; that the safety pins included in the invoices were an article of brass having a sharpened shank of about one and a quarter inches in length, furnished with a shield or guard of the same material, not having strictly any head at 'all, but used for many of the purposes, in fastening the clothing of children and adults, to which the ordinary pin of wholesale and retail trade was also produced a nurnber of witnesses from the used. The wholesale trade in the city of New York.. who testified that the general designation of "pins," as understood in trade and commerce in this
V. ROBERTSON.
161
country, at and immediately prior to the passage of the tariff act of March 3, 1883. included all the articles in the plaintiffs' invoices. In support of his classification of the merchandise for duty, the defendant collector introduced the evidence of a number of representatives of the leading American manufacturers of the ordinary "ne plus ultm" or "adamantine" pin, known in the trade at the time of the passage of said tariff act. which article was shown to have been designated as" pins." with the further definition of "ne plus ultra," "adamantine," etc.; thnt this article was composed of brass or iron wire about one inch in length, made by machinery, having a sharpened point and a solid head made from the same piece of wire as the pin itself; that these pins were commonly white, but that there was a class of them known as "jet pins," or "mourning pins," made' in the same way, and of the same sizes, but coated with black japan; that the ne plus ultra and adamantine pins came stuck upon papers, and were sold on such papers; that an article essentially the same as the American ne plus ultra pin was imported from . England, and sold in this market as ne plus ultra pins of various makes; that there was also known to the trade, at that time, an article called a "German pin," being made of brass wire, and having a head composed of a fine wire coil about the blunt end of the pin, and consequently not being solid headed. The defendant also produced a number of witnesses in the commission and notions trade, who testified that the trade term, "pins," designated primarily the ne plus ultra or adamantine pin, as commonly sold in the wholesale and retail trade. These witnesses admitted, on cross-examination, that different varieties of brass and iron wire pins. made by machinery and having solid heads, from the diminutive "Lill pin," of not more than one-half an inch in length, to a brasswire solid-headed shawl pin of three inches in length, and the solidheaded wire jet pins, or mourning pins, last above referred to, were iacluded, in their opinion, in the general trade term of "pins." The safety pins were shown to have been also known in the trade by the names of "nursery pins," "diaper pins," and "toilet pins." Edgar Ketchum and Edward Hartley, for plaintiffs. Edward Mitchell, U. S. Atty., and James T. Van RenB8elaer, Asst. U. S. Atty., for defendant. LACOMBE, Circuit Judge, (charging jury.) Gentlemen of the Jury: In the tariff act of 1883 there is a schedule, lettered C, and headed "Metals," including a great many different paragraphs, running in number from 144 to 216. When these goods arrived, the collector classified them under the last paragraph of this metal schedule, 216, which reads as follows:
"Manufactures, articles, or wares not specially enumerated or provided for in this act, composed wbolly or in part of iron, steel, copper, lead. nickel, pewter, tin, zinc, gold, silver, platinum, or any other metal, and whether partly or wholly manufactured, forty-five per centum ad valorem."
That particular paragraph, as you will see from its phraseology, is a catch-all clause put at the foot of the metal schedule in order to cover V .44F.no.3-11
162
FEDERAL REP0RTER,
vol. 44.
any ,manufactures of metal which may, by some deficientenumer:ation, ,', or 'by some failure to enumerate, have escaped inclusion in one or other_ of the' paragraphs; and the rate of du1.y fixed by it is a high one in order that if an article which has thus escaped is one which should properly pay a high rate of duty, it will find itself in the catchcall' clause paying at least the duties 'that it should. In view of the fact, however, that this 'paragraph isa catch-all clause, and with a high'rate of duty affixed w'it, no article should be included within it which, upon a fair and reasonable interpretation of the preceding paragraphs, may be found properlyinbluded in one or the other of them. It is the plaintiffs' contantion ,in this case that their articles should not be included in this catchrallclause because, as,they say, they are to be found specially provided for in paragraph 209; under this. phmseology: "Pms, solid head' or ,other, thirty per centmmadvalorern." Now, lawll, imposing duties, upon importations are :intended 'for practical use and application by men engaged in commerce; and the denominations of merchandise under those laws are to be understood in a commercial seilse. r In other words, it is assumed that congress, is fully conversant touching all the nomenclature oftrnde', in every 'variety of merchandise dealt in in this country, and about which it· legislates Some tariff dnty"; and it is for that reason that the testimony of gentlemen in the trade is put before yOUl in evidence in thiscuse. 1 You are to understand that congress, when it legislated about these articles, understood. the trade and com-' mercein this country, to be just exactly what you have heard it to be detailed to you from., the witness chair; and in interpreting the words whwhhave been used by congress, you are, to give to them the same mel!l'llingwhich the trade and commerce of this'country would have understood, that they" had' in 1883, when congress, used' those words. ' Therefore. in determining whether these articles here are: solid-head pins, or are other pins, (for the act, you' will remember, reads" Pins, solid head or other,") in determining whether they are ineluded in one Or the other of those groups, you are to decide that point; enlightened by the information which youha"e received from witnesses here as to what was the understanding and nomenclature of trade and comulerce in try in 1883. In other words, suppose that at the close of the labors of, the committee, and at the moment when the act was up for final passage, sqme one had raised one of theseatticles before congress and had said: we Dot omitted this article?" What, if they had at that time turned to the trade and .commerceofthis country, would have beeh the answer? Would it have been answered: "No; because it is included in which provides for solid-head pins or other pins?" If that would have been the answer made at that time, then we must assume that c<mgresslntel1dedto Cover these articles by the phrase it employed in paragraph 209; , ,If, however, that were :DaUbe answer, if tlle trade, if consulted, at that timej would have said: ,"No;, these articles here are not known to us as 'pins,' either as solid pins, or as other pins, inourtrad6 that had been the trade and commerce of this;conntiywould have given in 1883tosuoha question, then
·DIECKJl:RHOFF
v.
you are to understand that congress did not this article in paragraph 209. The question,as you see, is wholly and entirely one of fact. It rests with you to determine whether the phrase "pins, solid head or other" was, in 1883, 'understood in trade in this country as covering articles like these which the plaintiffs have imported. so· understood , your verdict will be for the plaintiffs; if it was not so understood, then your verdict must'he farthe defendant. The jury are entitled to the in,terest of any of tlie plaintiffs' witnesses, or of the firms with which such witnesses may be connected as importers of any of the articles involved in. this suit, in the classificatipn of such articles for duty, as bearing upon the testimony of suchwi'tilesses as to,'the trade designation of the articles' in question. And r will add, gerierillly, that any interest which any witness may have you are of course entitled to take into consid&ration in weighing his testimony.. . . " ' , "i '. -
Mr·. Van Rensselaer. If your willpermit me,Jhere is oue request which r did not put in writing, and' which I will state to your honor verbally. I request your honor to charge that, in considering trade designation, the jury Bhould take into consideration not only the trade as represented by the importers, but also trade as represented by the ufacturers of and dealers in domestic articles. The Court. The trade and commerCe of this country is the trade which buys and sells the particular article, whether it comes from abroad or is made here; and the trade and commerce which makes a designation is the trade and commerce between individuals where the buver and seller are both engaged in that as their business, not where an individual retails to a consumer, but where both the parties to the transaction are trade men. That being so, it is immaterial whether the goods which they buy and sell are made abroad or made here. It is the whole trade and commerce in this country, wherevet the goods it handles are made, which is to be considered. . Mr. Van Rensselaer. I would like to make a motion, and to ask for your honor's ruling thereon in connection with my first request to charge, that i8, that the clause "Pins, solid head or other" in the statute must be understood'by the jury to mean only such pins, solid head or other headed, as were known as such in trade and commerce at the time of the passage of the tariffact of 1883. I move your honor to direct the jury to find a verdict for the defendant as to the article "safety pin" on the ground that, addition to its not being included in the general term "pins," it i8 an article which all the testimony shows has no head at all. I claim the construction of the statute to be "pins, solid head or other headed;" there being no comma after "solid-head," it means "solid headed or other headed." And on that ground I move your honor to in favor of the defendent as to the safety p i n s . ' , The Court. I shall deny that motion. Mr. Van Rensselaer. Your honor will give me the benefit ofan exception. The jury thereupon rendered a verdict in favor of the plaintiffs.
164
J'EDERAL REPORTER, vol. 44. EIFFERT (Circuit Court, D.
et al.
'I).
CRAPS
Carolina. November 7, 1890.)
DBPOSmON-BupPRESSION
.A commission to take testimony duly issued and executed under Eq. Rule 67 will not be suprressed because, when received by the clerk, the envelope containing the testimony was upen at one end, presenting the appearance of havmg been worn in the mail, the clerk haVing noted the facts on the package and filed it, since which t.ime it has remained undisturbed in his office.
At Law. Motion to suppress a commission. E. W. Hughe8, for the motion. B. A. Hagood, contra., SIMONTON, J. A commission wae duly issued in this case directed to certain persons in Wytheville, Va. 0.1 the 29th September last, a package was received by the clerk of this court through the mail, bearing the name of this cause, with the names of the commissioners and their seals across the flap of the envelope. Upon the package is the certificate of one of the commissioners that he deposited it in the mail at Wytheville, Va., on 27th September, 1890. It reached Charleston on 29th September, !890, and one end of the envelope was open, presenting the appearance of having been worn in the mail, the opposite corner of the envelope presenting the same appearance. On its receipt, the clerk indorsed on the package this fact, filed it, and it has been undisturbed in his office. This commission was issued under the authority of Eq. Rule 67, and is in accordance with the well-established rule of the court of chancery. The commissioners.did their duty in all respects as to the certification Md mailing of the package. There is no reason to suspect that the contents of the package were seen by anyone. I am satisfied that the abrasion of the envelope occurred in the transmission in mailbags. No spe<;ial provision is made respecting the transmission or custody of comIJ:1.issions in the equity rules except in rule 69, which provides for'the publication of all the testimony. Our own rule 65 says that, when a commission is returned, it may be opened by leave of the clerk, upon consent of parties, in writing, indorsed on the commission. The rule which applies to depositions requiring rigid observance of every formality does not apply to commissions. In the natural course of things, without fault of the party taking out the commission or of the commissioners, the abrasion has occurred. It would be going very far to deprive the plaintiff of his testimony for this abrasion. The motion is refused. The parties can, if they choose, open the commission, and publish the contents of it; or, if they do not desire it, the clerk will seal it in an unbroken package with his own seal.
