Ballin v. Magone

41 F. 921 | U.S. Circuit Court for the District of Southern New York | 1890

Lacombe, J.

(charging jury.) This controversy concerns articles claimed by both sides to be dutiable under Schedule K of the tariff of 1883, providing different rates of duty on articles generally described in the title to that schedule as “wool and woolens.” One paragraph of that schedule, and it is the one under which the plaintiffs claim that their goods should be classed, reads as follows: “363. Flannels, blankets, hats of wool, knit goods, and all goods made on knitting frames, balinorals, woolen and worsted yarns, and all manufactures of every description, composed wholly or in part of worsted, the hair of the alpaca goat, or other animals, (except such as are composed in part of wool,)-not specially enumerated or provided for in this act,” shall pay duties varying according to their' weight and value. You will observe, in connection with this paragraph, that the rate of duty on all the articles named therein is the same. Again, you will observe that two “ yarns ” are mentioned in the paragraph, — a “woolen yarn” and a “worsted yarn.” Again, you will observe that the proviso or exception, “except such as are composed in part of wool,” by the use of the plural word “are,” refers to a plural subject. If it road “manufactures of every description, composed wholly or in part of worsted, the hair of the alpaca goat, or other animals, (except such as is composed in part of wool,)” —the proviso would refer to the composition of the worsted, and not to the composition of the entire manufactures. In other words, if the singular word was used in the proviso, then the manufactures of worsted which are dutiable under the section would be only manufactures of the kind of worsted which have no wool in them! The paragraph under which the defendant claims is No. 362: “Woolen cloths, woolen shawls, and all manufactures of wool of every description, made wholly or in p'art ofwool, not specially enumerated or provided for in this act, ” shall pay duties varying according to their weight and value, and at a higher rate, for corresponding weight and value, than the duty laid by the section under which the plaintiffs claim.

The defendant contends that these articles are dutiable either as as “woolen cloths,” under the phrase “woolen cloths” in this paragraph, or as manufactures ofwool. As woven fabrics, suitable for garments and other purposes, they are undoubtedly cloths. But the tariff does not in this paragraph provide for all cloths, but only for woolen cloths. Indisputably the plaintiffs’ goods are made entirely of wool, in the sense that they are composed wholly of the hairy growth which is sheared from the back of the sheep. But are they by virtue of that fact alone to be classed for tariff purposes in the group known as “woolen cloths?” It appears that woven fabrics made of sheep’s fleece or wool are very numerous, and no special trade use of the phrase “woolen cloths” is shown. In the ordinary use of language, that phrase would cover all such fabrics; and the mere usq, of special names for special varieties of such fabrics would not be sufficient to take them out of the group described by the general phrase, unless the general phrase was itself restricted by trade usage. The tariff act itself, however, recognizes a difference between woolen and worsted articles; between goods composed Of worsted and goods composed of wool. We find the words “wool” or “woolen” and “worsted” used in contrast at least six times in this very schedule; and the examination of successive tariff acts, back to, I think, 1816, shows an unbroken continuance of such contrasting use. It seems plain, therefore, that the words “woolen cloths,” used in the paragraph on which the defendant relies, are to be taken as including only those woolen cloths which are not worsted, or composed of worsted, within the meaning of those terms, (that is, “worsted,” or “composed of worsted,”) as used in this tariff.

Upon this distinction, then, between the wool which is knowm to the tariff act as “wool,” and the wool which is known to the tariff act as “worsted,” the determination of this case rests. If the articles imported by the plaintiffs are composed wholly or in part of worsted, and contain no wool, (except such worsted,) then they are entitled to your verdict; otherwise not. And, of course, the burden of satisfying you by a fair preponderance of proof that their goods are wholly of worsted rests upon them; for, as the collector is a public officer, his decision is presumed to be correct, in the absence of proof that it is erroneous.

Much of the difficulty which is encountered in customs suits is eliminated for .you by the very full testimony produced by the plaintiffs. They have shown, by the evidence of the men who made these goods, all the steps of their manufacture, from the fleece to the completed article. It is unnecessary for me to review this testimony. It has been so fully illustrated by samples of the successive products that I am sure, although it was given over a week ago, that you still remember it distinctly. It will be enough to remind you that it appears from the proof that the goods were woven from yarns produced by a process known in England and here as the “worsted process;” that one feature of that process was the operation known as “combing;” that yarn produced by that process ivas known in 1883, in England and here, as “worsted yarn;” that the wool from which that yarn was made came (as to some of the goods, the samples in the books) from Australian cross-bred sheep, and as to other of the goods (the samples in the brown paper) from English sheep. The evidence of the defendant further shows that wool, in all respects like the wool of which the yarn composing these goods was made, came to this country prior to 1883, and, as the witness Whitman says he testified before the tariff commission, (which sat in 1882,) was then very largely used in combing-mills in this country to make yarn for the manufacture of worsted cloth. As to what was the component material of these goods there can be little doubt. What you are next to determine is whether that component material is “worsted,” within the moaning of that word as used in the tariff.

In passing these acts, congress, as you know, legislates for the trade and commerce of the country; and when it uses words which are recognized by persons engaged in that trade and commerce either as words of a common meaning, or as words with a special trade signification, it is supposed to use those words in the sense in which persons engaged in trade and commerce would understand them. What, then, did congress mean by the words “composed of worsted?” What is this “worsted” which congress refers to as'something different from wool, although, as the evidence shows, it is in fact sheep’s fleece? That is a question for you to determine, and to determine from the evidence. Without rehearsing the evidence on that branch of the caso, I may. briefly call your attention to one or two considerations which may assist you in reaching a conclusion. The distinction is not one which congress’ bas created; evidently it found it in existence in the community and adopted it. While there may be contradictions between the” testimony oí the different witnesses on other points, there, is at least, substantial concurrence in the proposition that there is some difference between, for instance, worsted yarn (which one witness characterized as the crudest worsted product known to commerce) and woolen yam. Again, that difference (between the yams, I mean) is not a purely arbitrary one,— a difference in name only. There is, as the evidence shows, a difference in fact, whether such difference is accentuated solely by the process of manufacture, or partly, also, by the kind of wool used. Again, you will understand that congress, in legislating for the commerce of the country, does so after familiarizing itself .with the conditions of such commerce. When, with the lapse of time, new processes become known to trade, old differences are obliterated, or new ones created, congress is supposed to keep informed as to such change, and when it passes a tariff act we assume that it does so with full understanding of the conditions of things when it legislates. So, when in the tariff act of 1883 it uses a word which would be then recognized by community at large as expressing a particular idea, we may safely conclude that it uses that word to express the idea which it imported in 1883, not to express the idea which it may have imported in 1816. This we would be entitled to assume without evidence, but in this case we have proof to that effect.

It appears that a commission sat to take testimony (among other things) as to the wool industry and the wool trade, and one of the witnesses who has testified here appeared before it, and gave evidence on behalf of an association, — the National Association of Wool Manufacturers, I think, was the name, — and it was upon the report of that commission that congress framed the tariff act of 1883. So you see that we are entitled to assume that congress knew the condition of things in 1883, and acted accordingly, and it is for that reason that I excluded testimony as to the situation in 1867 or 1842.

Again, we are to assume that congress means something bj^ the phrases which it uses. You will remember that there seemed to be some difficulty in defining the word “worsted.” One witness (I think it was Mr. Juilliard) told you that he aud some 30 of his associates were unable, after much discussion, to satisfy themselves as to what “worsted” really was. Another witness (Mr. Ammidown) likewise said that there was no such thing as worsted; that “worsted” was an adjective, not a noun; that there was “worsted yarn,” worsted being used adjectively, but that there was no such thing as a noun “worsted.” Now, the phrase “composed of worsted” is used three times by congress in this very schedule, — the word “worsted” being used as a noun, whether in fact it is oris nota noun. Whether by that word congress meant “combed wool,” (a phrase used in the tariff of 1842 apparently as a synonym of “ worsted, ”) or meant “ worsted yarn, ” which the defendant’s evidence shows to be the crudest worsted product known to commerce, or whether it meant an unidentified and unidentifiable something, which is produced somewhere between the wool top and the worsted yarn in the process of manufacturing worsted yarn, — whichever of these, or whatever else congress may “have meant, it is for you to find out; but you are to find it out on the theory that congress meant something by the phrase “composed of worsted.” Finalty, then, you will from the evidence before you determine what was meant by the expression “ composed of worsted, ” in the year 1883; how it would at that time have been understood by persons engaged in trade and commerce, or by the community at large, if it had no special or peculiar trade meaning. Having reached a conelusion upon that pqint, you will next consider whether these goods imported'.'by the plaintiffs are correctly described by that term. If you find that they are, *and'that they contain no wool which is not worsted,your verdict will be for the plaintiffs; otherwise for the defendant. ■

The jury found a verdict for tile plaintiffs.