Elastic webbings, used as gorings for shoes, some composed of
worsted and India rubber, and the rest of cotton, silk and india
rubber, imported in March and June, 1884, were assessed with
duties, the former as "gorings" at 30 cents per pound and 50
percent
ad valorem under Schedule K of § 2502 of
Title 33 of the Revised Statutes, as enacted by § 6 of the Act
of March 3, 1883, c. 121, 22 Stat. 509, and the latter at 35
percent
ad valorem, as "webbing, composed of cotton, flax
or any other materials, not specially enumerated or provided for in
this act" under Schedule N of the same section.
Id., 514.
The importers claimed that they were dutiable at 30 percent
ad
valorem under said Schedule N,
id., 513, as
Page 144 U. S. 604
"India rubber fabrics, composed wholly or in part of India
rubber, not specially enumerated or provided for in this act."
Held that the assessment of duties, as made, was
correct.
"Goring" and "gorings" make their first appearance in the Act of
March 3, 1883.
The cases of
Davies v. Arthur, 96 U. S.
135, and
Beard v. Nichols, 120 U.
S. 260, do not control the present case.
The circuit court erred in not submitting to the jury the
question whether the goods were or were not known in this country,
in trade and commerce, under the specific name of goring, and in
directing a verdict for the plaintiffs.
The case is stated in the opinion.
MR. JUSTICE BLATCHFORD delivered the opinion of the Court.
This is an action at law, brought October 15, 1884, in the
Superior Court of the City of New York by Bernard J. Salomon and
Samuel Mendel Phillips against William H. Robertson, late collector
of the port of New York, to recover an alleged excess of duties
amounting to $288.20 on certain goods imported into that port in
March and June, 1884. The case was removed by the defendant, by
certiorari, into the Circuit Court of the United States for the
Southern District of New York, and was tried there before a jury in
January, 1888. There was a verdict for the plaintiffs for $157.08
as to certain of the goods, and for the defendant as to certain
others of them, whereupon a judgment was entered for the plaintiffs
for $157.08 damages, $46.85 costs, and $6.67 interest, making in
all $210.60. To review that judgment the defendant has sued out a
writ of error.
The goods in question were invoiced as "elastic webbings." Some
of them were composed of worsted and India rubber and the remainder
of cotton, silk, and India rubber. The collector
Page 144 U. S. 605
assessed duties on the worsted and rubber goods at the rate of
30 cents per pound and 50 percent
ad valorem, and on the
cotton, silk, and rubber goods at the rate of 35 percent
ad
valorem. The plaintiffs paid such duties under a protest,
which stated the grounds of their dissatisfaction to be
"that under existing laws, and particularly by Schedule N of the
tariff Act of March 3, 1883, said goods were liable at no more than
30 percent
ad valorem, as fabrics in part India rubber,
not otherwise specially enumerated or provided for."
The duties claimed to have been levied and paid in excess of the
lawful rate amounted, with interest, in the case of the worsted and
rubber goods, to $125.04, and in the case of the cotton, silk, and
rubber goods to $32.04.
The bill of exceptions states as follows:
"To further sustain the issue upon their part, the plaintiffs
called witnesses who testified substantially that the goods in
question are used to insert in the upper part of shoes and gaiters;
that the rubber is an essential part of the article, and that it
could not be used for the purpose for which it is intended without
rubber. That it is sometimes known as 'elastic webbing,' and that
it is also known under the name of 'elastic goring.' That there are
webbings in which rubber is not a component part. That there are
many kinds of webbings, such as surgical whebbings, suspender
webbings, and upholstery webbings. That all narrow woven fabrics
are considered webbings. That the articles in question in this
action were woven on the loom. That webbings are always woven on
the loom."
The defendant put in evidence which tended to show that the
elastic webbing in controversy was bought and invoiced as "elastic
webbing," but was sold in the market in the United States as
"goring;" that the general trade name for it in the United States
was "goring;" that it was never made on braiding machines or by
hand; that "elastic webbing" was a term known in trade and commerce
in the United States prior to 1883, applicable to goods like the
plaintiff's importation; that the term "elastic webbing," applied
to goods like those in question, had been known in trade and
commerce, as the foreign name, since and prior to 1883, in and
among importers
Page 144 U. S. 606
and large dealers, but that "goring" was the American name, and
the article was so called because it was used to make gores of, and
formed the goring of a Congress shoe, and that the shoe
manufacturer called them gores. It was also admitted at the trial
that all the testimony contained in the bill of exceptions as to
trade designation and use was likewise true immediately prior to
and on March 3, 1883.
At the close of the case, the defendant moved the court to
direct a verdict for him upon the general ground that the
plaintiffs had not established their contention, and specifically
as to the goods composed of worsted and rubber, that it appeared
from the testimony that they were known in this country under the
specific name of "goring," and that, especially since the word
"goring" was inserted first into the worsted clause by the Act of
March 3, 1883, it more specifically described the goods in question
than "fabrics in part of India rubber." That motion was denied by
the court, and the defendant excepted.
The defendant then asked to have submitted to the jury the
question whether or not the merchandise composed of worsted and
rubber was known in trade and commerce, and among large dealers in
this country, under the name of "goring," which motion was denied
by the court, and the defendant excepted.
The court then directed a verdict for the plaintiffs for the
respective amounts sought to be recovered by them. To this ruling
the defendant excepted.
At the time the goods in question were imported, they were
subject to duty under § 2502 of title 33 of the Revised
Statutes, as enacted by § 6 of the Act of March 3, 1883, c.
121, 22 Stat. 488.
Schedule I, "Cotton and Cotton Goods," of § 2502, provided
as follows (p. 506) in regard to duties:
"Cotton cords, braids, gimps, galloons, webbing, goring,
suspenders, braces, and all manufactures of cotton, not specially
enumerated or provided for in this act, and corsets, of whatever
material composed, thirty-five percentum
ad valorem."
Schedule K, "Wool and Woolens," p. 509:
"Webbings,
Page 144 U. S. 607
gorings, suspenders, braces, beltings, bindings, braids,
galloons, fringes, gimps, cords and tassels, dress trimmings, head
nets, buttons, or barrel buttons, or buttons of other forms for
tassels or ornaments, wrought by hand, or braided by machinery,
made of wool, worsted, the hair of the alpaca, goat, or other
animals, or of which wool, worsted, the hair of the alpaca, goat,
or other animals is a component material, thirty cents per pound,
and, in addition thereto, fifty percentum
ad valorem."
Schedule N, "Sundries," p. 514: "Webbing, composed of cotton,
flax, or any other materials, not specially enumerated or provided
for in this act, thirty-five percentum
ad valorem."
And the same schedule, p. 513:
"India rubber fabrics, composed wholly or in part of India
rubber, not specially enumerated or provided for in this act,
thirty percentum
ad valorem. Articles composed of India
rubber not specially enumerated or provided for in this act,
twenty-five percentum
ad valorem."
The collector levied on the goods composed of worsted and India
rubber 30 cents per pound, and, in addition thereto, 50 percent
ad valorem, and on those composed of cotton, silk, and
India rubber 35 percent
ad valorem.
The plaintiffs claimed that the goods were India rubber fabrics,
composed wholly or in part of India rubber, not specially
enumerated or provided for in the act, and therefore subject to a
duty of only 30 percent
ad valorem.
We are of opinion that the judgment must be reversed. It appears
distinctly that the goods in question were used to insert in the
upper part of shoes or gaiters, and that, while each of the two
kinds was called "webbing," it was also known as "goring." The
worsted and India rubber article was dutiable as webbing or as
goring at 30 cents per pound, and, in addition, 50 percent
ad
valorem; while the cotton, silk, and India rubber article was
dutiable as webbing composed of cotton, or any other materials not
specially enumerated or provided for in the act at 35 percent
ad valorem.
It is very clear that the words "goring" and "gorings" make
their first appearance in the Act of March 3, 1883, and
Page 144 U. S. 608
their insertion in that act must have had reference not merely
to their absence from previous statutes, but, in connection with
such absence, to the construction which this Court had put upon
prior statutes in which those words did not appear, in reference to
the duties leviable on articles of the character of those in
question in this suit. Although the goods in question were composed
wholly or in part of India rubber, those composed of worsted and
India rubber were specially enumerated or provided for as
"gorings," under Schedule K, and those composed of cotton, silk,
and India rubber were specially enumerated and provided for in
Schedule N, as "webbing, composed of cotton, flax, or any other
materials," and all of them therefore were excepted from the 30
percent duty imposed on India rubber fabrics by Schedule N.
The cases of
Arthur v. Davies, 96 U. S.
135, in 1877, in regard to goods imported in 1873, and
of
Beard v. Nichols, 120 U. S. 260, in
regard to goods imported in 1878 and 1879, relied upon by the
plaintiffs, do not control the present case.
In
Arthur v. Davies, the articles in question were
suspenders or braces, made of India rubber, cotton, and silk,
cotton being the component material of chief value, and suspenders
or braces made of India rubber, cotton, and silk, cotton being the
component material of chief value, a few threads of silk being
introduced for purposes of ornament. It was held that the goods
were dutiable under § 22 of the Act of March 2, 1861, 12 Stat.
191, which imposed a duty of 30 percent on "braces, suspenders,
webbing, or other fabrics, composed wholly or in part of India
rubber, not otherwise provided for," and to an additional duty of 5
percent
ad valorem imposed on the same articles by §
13 of the Act of July 14, 1862, 12 Stat. 556, and not to a duty of
50 percent
ad valorem, imposed by § 8 of the same
act, 12 Stat. 552, "on manufactures of India rubber and silk, or of
India rubber and silk and other materials." This was held on the
ground that if the articles were technically and commercially
braces and suspenders, composed in part of India rubber, they took
their dutiable character from that source.
In
Beard v. Nichols, the goods were webbing made of
Page 144 U. S. 609
India rubber, wool, and cotton, and were used for gores in
making Congress boots, and without the rubber would not have been
adapted to that use. They were not wrought by hand nor braided by
machinery, but were woven in a loom, and appear to have been
substantially like the goods in question in the present case, made
of worsted and India rubber. They were held to be dutiable at 35
percent
ad valorem, under § 2504 of the Revised
Statutes, Schedule M, "Sundries," p. 477, which imposed that rate
of duty on "braces, suspenders, webbing, or other fabrics, composed
wholly or in part of India rubber, not otherwise provided for," and
not to a duty of 50 cents per pound, and, in addition thereto, 50
percent
ad valorem, under Schedule L of § 2504, "Wool
and Woolen Goods," p. 472, as "webbings" of which wool or worsted
was a component material. That decision was put upon the ground on
which it is there stated that the decision in
Arthur v.
Davies had been put -- namely that ever since 1842, webbing
composed wholly or in part of India rubber had been a subject of
duty
eo nomine.
But the Act of March 3, 1883, does not impose a duty on "webbing
composed wholly or in part of India rubber," as did subdivision 10
of § 5 of the Act of August 30, 1842, 5 Stat. 555, and as did
Schedule C of § 11 of the Act of July 30, 1846, 9 Stat. 44,
and as did § 22 of the Act of March 2, 1861, 12 Stat. 191, and
as did § 13 of the Act of July 14, 1862, 12 Stat. 556.
By the Act of March 3, 1883, Schedule K, a duty is imposed on
webbings and gorings of which wool or worsted is a component
material, without reference to the fact whether the article
contains India rubber or not, and by Schedule N of the same act a
duty is imposed on webbing composed of cotton, flax, or any other
materials, without reference to the fact whether it contains India
rubber or not.
We are of opinion that the goods composed of worsted and India
rubber were dutiable as gorings at 30 cents per pound, and, in
addition thereto, 50 percent
ad valorem, if they were
known in this country, in trade and commerce, under the specific
name of "goring;" that whether they were or not so
Page 144 U. S. 610
known was, on the evidence, a question for the jury; that the
court erred in not submitting that question to the jury; that the
goods composed of cotton, silk, and India rubber were subject to a
duty of 35 percent
ad valorem, and that the court erred in
directing a verdict for the plaintiffs.
The judgment is
Reversed, with a direction to grant a new trial, and to take
further proceedings in conformity with this opinion.