" IN RE SALOMON.
287
In re. SALOMON. et ale (CircuU COUrt. 8. D. New York. October 18,1891.) 1. ,CuIlTOl\IIB PUTIES-CLASSlJ'ICATIO:i-CONSTBUCTI\>N Oll' STATUTE-COMMBRCIAL DBBIGNATION.
Where it'appears that a word used in the talifflaw had at the time of tbepusage of the tariff act a special and tecbnical trade meaning, but the language of the section 01' paragraph In which the word is used in the act shows clearly that suoh technical meaning could not have been the one which congress placed upon the word, such. technioal trade meaning cannot be adopted by the court in construing the .statute. S.
; leather .the process of into a shape suitable for recutting into sboe-vamps \Vas, under the tariff aqt of March Sl.l883l properly dutiable as "dressed'l1pper leather," under the prOVision therefor in' tlCheaule N, par. 461, at 20Pllr.,96I1t.ad vaWre?n". and not as a "manuf.llcture or artio1e of leather," under parall'rapb 468 of the same schedule, at 80 per cent. ad rolorem. "
LUTHER.
;
At .Law., , " , , section 15 of the act of June 10, 1890, entitled "Anaclto'llimplify tbe laws in relation to the collection of the revenue," (26U. S.St. at Large, 131,)by Salomon and Phillips,irnporters, for a review ,of the decision of.the United States general affirming of collector of the port of New 1;ork, as to the rate of duty' assessable upon certain merchllndise importe4 by them Wieland, August 23, 1890. The merchandise in question consisted of certain,pieces of Cordovan leather. The leather was made by tanninK, dressing, and curryinK skin or hide taken frpm the back pa.rtor hips horse. The leather was designed to be into . The board of genera,! appraisers had held that the goods in, qpestion were in fact vamps in the condition in which they were imported, but the undisputed tC$timony taken by the courtshO\ved that a furtber of and shaping was. necessary to them into the articles commercially called "vamps," and that the shape in wbichthey had been imported was (me given to them in the process of dressing; .rne goods ip.question had been classified by the collectQr as1irnanufactures of leather," and assessed for duty at 30 per cent. ad valorem, under paragraph 463, Schedule N, Act March 3, 1883. They were claimed by the importers to be dutiable at 20 per cent. ad valorem as "dressed upper leather," under paragraph 461 of the same act and schedule. A number of witnesses called on behalf of the collector testified that the term "upper leather" had in the leather trade a special, technical meaning, and was confined to waxed cowhide. These witnesses, as well as witnesses called on behalf of the importers, stated that in a general sense all leather used for the upper part of a shoe was called "upper leather." Ourie, Smith &: Mackie, (W. Wickham Smith, of counsel,) for importers. Edward MitcheU, U. S. Atty., and Jam.es T. Van Ren88elaer, Asst. U. S. Atty., for collector.
2SS
FEDERAl, REPORTER,
vol. 48.
LACOMBE, Circuit Judge, (orally.) The articles imported here seem, from the testimony, to be within the meaning of the phrase "dressed upper leather," as used in the tariff act of 1883, par. 461. It appears that there are two commercial meanings giventb that phrase, one of which applies generally to the different kinds of leather which are used for makingtheupperpatt .of a shoe," in contradistinction to the leather used for the sole or under part; the other,avery restricted, which techl1iPIU meaning, is confined to waxed cowhide., It is apparent that qongress did, not use the .term "dressedupper leather" with this restricted meaning,because the phraseology of the section' (Omitting the adjectives) is: "Calf-skins * * * and dressed upper pf aUother kinds." Therefore, inasmuch as congress considered that calf-skins were a variety of it evidently did not have in minc;l the peculiar and re.stncted meaning of that term referring onlytp waxed cowhides, but intended to covElr all varieties of upper leather known to the trade; and this importation, according to the testimony, is one of the kinds of dressed upper leather which the trade knows., The board,ofappraisers seems to have been'misinformed as to wnafthese artic1'es ate; The testimony.:,'lJ.ow taken shows pretty 'conClusively that they are not "sb,oevamps, "pieces cut from dressed upper leather for the forepart of a shoe, ready for making up.'" An additiQrilifprocess of cutting isrequirei:Ftotransform these articies into the of trade and His true thatthe articles ate,not in,tlie shnpein which the before it WllS a'ubjected to. the process, of tanning.and dressmg;butit appears that thesha1>e whlCh they, now have was gIven into to theand the process of dressing... In other words, they were this shape before they beCame dressed upper at all, and we have not a oilsewhere dressed upper leather has been, as the board of appraisers say, "by the labor of the"cutter, a skilll;ld artisau\ converted frommdre'Upper leather into vamps' designed fora 'Spi:tci'fic·piupose." I not cbveredby paragraph 463 am therE:fore ,cif the opinion that as mauufhefuresM leather, but are to be classified under paragraph 461 ss dre.ssed:upper leather. The decision of the collector and'of the board of appraiserS iff reversed i' the articles should be classified' under paragraph
as
461.'
.
BATTERSON V. MAG0NE.
289
BATTERSON
et al, v. NeIIJ
MAGONE,
Collector.
(Oircuit Oo'/{-rt,S, D.
York.N.oy,ember 18,1891.)
CUIlTOMS DUTJES-CLASSU'WATION-'MEXJCAN ONYX.
So-called "'Mexican Onyx;" not being a chaicedony or onyx proper, as defined in mineralogy, but being a carbonate of lime, containing a small proportion of carbonate of magnesia and ferrous oxides, and having the other charaoteristics of ma,rble in respect, of texture, hardness, and capacity, for be,iIl g, worked and polished; is "marble." within the provision of paragraph 461" Tariff Ind. (New,) ,. , ' Schedule"N, Tariff Act, March 8,1888.
At Law. .This action was brought by the plaintiffs against the defendant, collector of the port of New York, to recover the amount of an alleged overpayment of duties on certain merchandisEHmported by the plaintiffs into the port of New York in the month of April, 1889, which was inblocks marble," and was voiced to the plaintiffs from Vera Cruz as classified for duty by the defendant collector as "marble in blocks," at 65 cents per cubic foot, under Tariff Ind. (New,) paragraph 467 of Sched.. ule N oj the tariff act of March 3, 1883. Against this classification the plaintiffs duly protested, <;l'Iaiming, first, that the merchandise was duty free, as a" crude mineral, riot advanced in value or condition by refining, grinding, or manufacture," under the free list of said tatiff act, paragraph Tariff Ind. (New) 638; 01' by "similitude in material, quality, and uses to, agates unmanufactured," under said free list paragraph, Tariff Ind. (New) 596; ,or, if not, then at one dollar per ton, as. or undressed stomes. buildil'tg or monumental stone,not marble," under paragraph Tarifi' Ind. (New) 487 of said Schedule N of said tariff act, either directly or by similitude in material, quality, and uses. The plaintiffs: duly appealed to the secretary of' the treasury from the decis. iori of the oollecto1', and the secretary affirmed the decision of the defendant ,collectof,and this action was thereupon broughtwithin the time limited by law to recover the alleged overpayment of duties. On the trial the plaintiffs did not offer any proof that the material in question' was an onyx or chalcedony belonging to the group, as understood in mineralogy. They also abandoned their claim that it assimilated to agate unmanufactured; and rested their contention entirely upon the ground, that the material imported by them had been known from the time of its introduction into this country ,and at the time of the passage of the tariff act of March 3, 1883, as "Mexican Onyx;" that it was never known in the trade as marble, or as one of the marbles, but that the term "marble," as used in trade at that time, excluded this article as imported by them. To sustain this contention plaintiffs introduced a number of witnesses from'the marble trade, who dealt in this article at the time of the passage of the tariff act. They also endeavored to prove by the testimony of one witness that the material was extracted, from mines in Mexico, and was consequently, if not a monumental Of building stone,a crude millernl,within the ordinary meaning of that term. Plaintiffs also offered testimony showing that the material inquestioIi v,48F.no.4-19