1008
FEDERAL
,vol. 53.
in behalf otthe collector and government. and by counsel for the imp"l'tel'B;the circuit court delivered the following decisIon.
Sta:nleY,'Clarke & Smith, (Stephen G. Clarke, of counsel,) for importers. ·.' . . Edward::Mitchell, U. S. Atty., and James T. Van Rensselaer, Asst. U. S. Atty., for collector and the United States. con,.District Judge, (orally.) The question at issue in this 'Whether or not the importation should. be. classified as an "allffilo!d,j ,\inqei'.paragraph76 of the ,act of. 1890"as classified by the collector, . or as. a "medicinal preparation", under, paragraph 74 as the importer/insists it should have been classified. It is conceded on all sidestbratthe imPQrtation is an "alkaloid." The burden, thereto establish two that fQre,ls'wo)i.'the the impO$tlon is a medichUu.preparation; and second, that the. term l'medicinal 'preparatio:\l" is .Dl0i'8 specific than the term ,'lalkaloid." It seems, tome that the qUeiltion first stated is one of fact, which, up<>.p .the .tElS.ti)n,ony, the might )Vell have d,etennined as ,they did, WRsnot a llD;ledicinalprep:ara.tion." Oe'rtainly within: the established rule, the court will 'n01'OO justifioo: in setting iulide, 'tiheirtinding as against the weight ',. BtitirrespectiVe ot this suggestion, it appears in proof, u,xlcontradicted"tha,t alt aJkaloids are medicinal; and that all medicinal preparations are not alkaloids. Therefore, on the proof, theterml'aIkaloid" would be a' more specific designation than the contended, .fq.r by the . ipl.porter, In words,. if it .were established tllil,t both sectioW! Of the statute describe import.a· .tion, the collector has .chosen,. the more specific of the two upon the evidence now presented to the court. The decision of 'the board IS affirmed.
INGERSOLL at Ill. v. MAGONE.
(Circuit Court of Appea:ls" SecoJld Oircult. 'CUSTOMS DUTIES.....TRAVELING RUGS,
February 7, 1893.)
Traveling rugs imported during the year 1888, were dutiable at 40 peJ.cel;lt. ad valorem, as rugs, under paragraph 378. Schedule K, of the tariff act of March 3, ·1883, (22 St. ait Large, p, 510,) and l;lot at 35 cel;lts per pound and. 40 per cent. ad valorem. as manufactures of wool not specially enumerated, under paragraph 362, Schedule K, of that act. 48 Fed. Rep. 159, reversed.
totheOircuit Court of the United States for the Southern of New York, 4,tLaw. Action by DaviqB. Ingersoll and William P. Glenney to recover an alleged excess of customs duties leVied by defendant ascolIetlt6r of the port of New York.. The dr'cuit court directed a verdict for defendant.' 48 Fed. Rep. 159. Plaintiffs bring error. Reversed.
rNGERSOLL V. MAGONE.
1009
Edward Hartley, for plaintiffs. Thomas Greenwood. ABst. U. S. Atty., for defendant. Before W ALLAOE and SHIPMAN, Oircuit Judges. SHIPMAN, Oircuit Judge. This is an action at law for the of $60.67, the amount alleged to have been paid, under protest. as an excess of duties upon a certain importation made into the port of New York. In September, 1888, the plain. tiffs imported certain goods, described in the invoice. which was presented on entry as "rugs," which the defendant classified for duty as woolen shawls, upon which he, as collector of the port, collected duty under paragraph 362 of Schedule K of the act of March 3, 1883, (22 St. at Large, p. 508.) The paragraph is as follows: "Woolen cloths, woolen shawls, and all manufactures of wool of every description, made wholly or in part of wool, not specially enumerated or provided for in this act, valued at not exceeding eighty cents per pound, thirty-five cents per poun,d, and thirty-five ,per ceutum ad valorem; valued at aboVe eighty cents per pound, thirty-five cents per pound, and, in addition thereto, forty per centum ad valorem."
The importers protested upon the ground that the goods were bought and sold as rugs, and were used as rugs. or robes for the protection of the person in carriages, and for house purposes, and were dutiable only under paragraph 378 in Schedule K of the act of March 3, 1883, which paragraph is as follows: "378. Carpets and carpetings of wool, fiax, or cotton, or parts of either or other mateLial, not otherwise herein specified, forty per centum ad valorem; and mats, rugs, screens, covers, hassocks, bedsides, and other portions of carpets or carpetings, shall be subjected to the rate of duty herein imposed on carpets or carpeting of like character or description; and the duty on all other mats not exclusively of vegetable material, screens, hassocks, and rugs, shall be forty per centulll ad valorem."
The goods were made of wool, and were of the same general character as the two samples, which were described as follows: "One was 5 feet long by 5 feet and 2 inches wide, weighing 4 pounds 12 ounces, with fringe at each of the two ends, and presenting on one side a blight-colored, striped appeamnce, and on the reverse side a twilled appearance, in two colors. The other was 6 feet and 2 inches long by 5 feet and 2 inches wide, weighing 3 pounds and 6 ounces, without fringe, bound on all its edges with a binding, and presenting a dull appearance, alike, or nearly alike, on both sides."
The record shows that this class of goods is used for wrapping about the legs or the body of a person when traveling, and as cover· ings for lounges or beds, and for throwing over the body of a person when lying on a lounge or bed, and that these articles are, and were prior to March, 1883, bought and sold by the name of "traveling rugs." At the close of the plaintiffs' testimony the defendant moved the circuit court to direct the jury to find a verdict for the defendant" upon the ground that the articles in suit are not the rugs mentioned in the paragraph which has been quoted. This motion was granted by the court, and a verdict for the defendant was rendered. The plaintiff having excepted to the ruling, the question as to its propriety comes to this court by writ of error. v.53F.no.l0-64
'1010
FEDttBAL IlEPORtn-; vot.'53.
The provisions already quoted, of, iJheita.l'iff act of '1883, -in regard to mats, screens; andl'ugs, haveexisied,' in snbstantially the same mats. not language, with the Ettception of exclusively of vegetable material, ana in the same' connection with ,f0l' ,cl;tl'Peting,sirlce the act oI March·. f' 1861, (12 St. U. S. p. 184,). and been in of' July, 1862, (12 St. U. S" 552,) of June 30, (13 St. tJ. S. p. 207,) and of March. 2, 1867,,(14 St., U. S. , : ' Since the in, regard to the classification of travelin,g rugs, as "blankets" and "manufactures of wool," propercla{l.sification, Qt these,illticl,es has been occa.siOnally the /:lllbject of diaC)lsEjion in the trea.sw:y department. In, ,1866 and 1869 t):le departmeI1.t decided ijl,at should be ,classified as; manufac· wool 'not for. A simillLl' decision seems to have been made in 18'70. In, 188B the department decided ,toIJlodify its previQusrulings, land to concede that these articles shOUld be classed as rugs, -upon the ground that they were such both ,tinder the comprehension arid 'the' signifiillttions of the word. , The only testimony in the record in regard to' commercial designation, and which was given for the purpose of distinguishing th.e importatiolls from shawls, was from a witneSs who said that they were always and prior to March, 1883, bought and sold by the name of, :"trawling rugs," and that he had never! heard 'them called , "shawls." , The word'''ru,r' is defined .inWebster's Dictionary (Ed. 1875) to be '''a coarse, nappy, woolen fa9ricused for various purposes, as (a) for QPver of a})E!di(b) for carpet before a fire; (c) for :,pllQtecting',the, If:}g'S against the cold ill ,riding, as, 11 'railway rug." ,The testimony in the record that :the importations were used both for the coverings of a bed, and for the protection of the person when ii:ra,veling, C,9incides with the. of the word "rug" in this e4itio:n of- the: dictionary. T4e, argument .in favor of the COllector's cl8J'ili!wcation, and which met the approval of the circuit judge, is that the fact that l'ugs having been unifOl'lnly placed in the tarilff acts since 1861; in connection with provisiona for carpets a,nd carpeting and article!! used' 'on floors, a:nd the principle of 'riqacitur a sociis, show congress to limit ·the meaning of the term "rug" to articles of' a character akin· to carpets or 'lllats; but it must be observed that scr:eens,which are not used as 'a'lcovering, and which are not akin to Cil'peting, were also included lnthe same paragraph., Inasmuch as thE' word "rug" had gradually come to acquite a meaning which mcluded awopfen fabric, either wl:1-en used for protecting a carpet Qrfor protecting the person, so that the authors of a standard dictionary published, in ,this country in 1:l875 defined the and the artielewasin commO!ll e the distinguishing name of "traveling rug," we think the inference to be that I .1883, intended to use the word in the meaning which it had previously fully attained. The judgment of the circuit :eoUrt is reversed. !
,Ill BE SCREED.
1011,
II1 re SCHEFER et al (Cir<lU1t Court of Appeals, Second Circuit. February 7, 1893.) 1. CUSTOMS DUTIES-CLASSIFICATION-WORSTED SHAWLS EMBROIDERED.
'Vorsted shawls embroidered with sUk, and worth over 40 cents pel' pound, are dutiable at 44 cents per pound and 50 per cent. ad valorem, as worsted shawls, under paragraph 392, of the act of October 1, 1890, ,and not at 60 cents per pound and 60 pel' cent. ad valorem, as embroideries made of worsted, under paragraph 398 and the proviso of paragraph 373 of said act. 49 Fed. Rep. 826, affirmed. The main object of the proviso of paragraph 373 of the tariff act of October 1, 1890, was to prevent the classification by their specific names of ,articles embroidered with some material, which classification would render them dutiable at a lower rate than embroideries of that mateliaI; but such articles lllay be dutiable at a greater rate, because a higher duty may be imposed upon articles of that specific description.
2. SAME.
Appeal, from the Oircuit Court of the United States for the Southern District of New York. Proceeding by Schefer, Schramm & Vogel to review a decision of the board of general, appraisers, affirming the decision of the collectQr of the port of New York in assessing duties upon worsted shawls embroidered with silk, and worth over 40 cents per pound. The circuit, court reversed the decision. 49 Fed. Rep. 826. The United States appeal. Affirmed. James T. Van Rensselaer, Asst. U. S. Atty., for appellant. W. Wickham Smith, for appellee. ' Before WALLACE and SHIPMAN, Circuit Judges. SHIPMAN, Circuit Judge. This is an appeal from a decree of the circuit court for the southern district of New York, which reversed the decision of the board of United States general appraisers, which affirmed the decision of the collector of the port of New York respecting the classification for duty of certain merchandise impocted in April, 1891. The importations were worsted shawls embroidered with silk. Worsted shawls of the value of those in question are dutiable, under paragraph 392 of the act of October 1, 1890, at 44 cents per pound, and, in addition thereto, 50 per cent. ad valorem. The collector imposed a duty of 60 cents per pound and 60 per centum ad valorem, under paragraph 398 of the said act,which placed that duty upon embroideries made of worsted, and under the general proviso contained in paragraph- 373 of the same act, which is as follows: "ProVided, that articles of wearing apparel and textile fabrics, when embroidered by hand or machinery, and whether specially or otherwise provided for in thi'i! act, shall not pay a less rate of duty than that fixed by the respective paragraphs and schedules of this act upon embroideries of the materials of which they are respectively composed."
Silk are . dutiable under the act of 1890 at' 60 per cent. ad valorem,-a less rate of duty than that upon worsted shawls. at 6qper Flax, jute, and cotton .embroideries ar.e also