38 F. 718 | N.D. Ill. | 1889
(charging jury.') You are all of you in a general way familiar with the rule that the jury only find the facts in the case under the testimony. The court instructs you as to the law of the case, and such instruction is obligatory. You are to determine these questions of fact from the weight and satisfactory character of the testimony which is adduced in the case by each party. The suit is brought by the plaintiffs to recover back duties which they paid under protest, under the claim that the collector should have assessed these goods for duty under clause 448 of Heyl’s Compilation of the Customs Laws, as materials for making and ornamenting hats, at a duty of 20 per cent, ad valorem. The plaintiffs protested against the assessment made by the collector, paid the duties under protest, and took an appeal to the secretary of the treasury, where the action of the collector • was affirmed; whereupon they brought this suit, as by law they are allowed to do, in order to test the legality of the collector’s action. It is a method provided by law, by which an importer can have corrected any error which the collector may make in the classification or assessment for duty of the goods which he imports. The law fixes the duty arbitrarily, under certain classifications or descriptions, and the collector, of course, is liable to make mistakes, and make an erroneous or illegal classification of goods, in which event the proper procedure for the importer is to pay the duties under protest, and then bring his suit against the collector for the excess of duties paid. As has been properly stated to you by counsel, this is not a controversy in which any feeling should be invoked. It simply presents dry questions of fact and law, — questions of fact to be determined by the jury, and the questions of law to be determined by the court. I have already taken from your consideration all the goods which are described as “lace or bead work” and “bead ornaments,” because I am clearly of opinion, as a question of law, upon the evidence adduced on the part of the plaintiff, that these goods come under the clause of the law which fixes a duty on “beads or bead ornaments,” and as such are specifically dutiable at 50 per cent, ad valorem. It is suggested on the part of the defendant that they might have been dutiable at 25 per cent., as jet, or imitations of jet. But it makes no difference whether the collector made a mistake or not in regard to classifying them as beads, rather than classifying them as jet. The only question is, did he err in not classifying them as material for making or ornamenting hats, bonnets, and hoods? The plaintiffs, if they thought it probable or possible that these goods should have been passed as jet or imitations of jet, could have made their protest in the alternative, — that is, if not dutiable as material for hats, bonnets, and hoods, then they were dutiable as jet, or jet ornaments, or imitations of jet, — and ihereby save the questions by charging the collector with two mistakes, as you may say. And I will premise further that, in asserting that these goods are dutiable as material for making and ornamenting hats at 20 per cent, ad valorem, the plaintiffs have the bur
I have allowed the plaintiffs to proceed and offer such testimony to you as they had at control; it being conceded that the plaintiffs have lo.st their samples, or are unable to produce them, and the government having none. Then the testimony on the part of the plaintiffs tends to show that all these goods described in the various invoices of August 81st, of August 25th, of September 7th, and September 15th, which are now in question before you, are materials for making or ornamenting hats, bonnéts, and hoods. The testimony on the part of the plaintiffs tends'to show this. You are to say whether you are satisfied from that testimony. I- may say further that the mere fact that a dealer in millinery goods has. imported these goods is not the controlling fact at all. The question is, what use are these goods adapted to, and what is the principal or predominating use to which' they'are applied? You are all of you far enough along in the experiences of life to know that a commodity itiay be made specially for one use, and yet be found to be equally as well adapted -to many other uses. And if these goods, although made expressly for the purpose of being used by milliners in making and ornamenting hats, bonnets, and hoods, have become applicable to other uses to such an extent that you can say that the making and ornamenting of hats is mot their chief and principal use, then the plaintiffs will fail in their case. But if the plaintiffs’ testimony has satisfied you that the principal use of these goods, the purpose for which they are dealt in by all classes of dealers, — mot dealers in millinery goods alone, but all classes of dealers in this kind of goods, — is for the making and ornamenting of hats, then you will' find the issue for the plaintiffs. This is a question
The next question arises under the invoice of August 25th, as to, the articles numbered 1231 and 1211, described as “steel embroidery” and “embroidery.” There is no sample of the goods produced, but Mr. Botsford’s testimony is unequivocal that they are used only for trimmings for hats, bonnets, and hoods. There is no proof further than the name as to what they are composed of, whether it is steel wire or steel beads embroidered upon something else. They are called simply “steel embroidery.” Our own common knowledge, perhaps, might prompt us to say that'they were probably manufactured by working steel beads into, or knitting them into, some sort of fabric, either of cotton, linen, silk, or woolen, as the case might bo. Then the next question in the same in
Then, in the same invoice, there is a series of goods numbered 6,244, 6,347, 6,409, 6,211 repeated four times, 6,408, 6,211 repeated five times, and 6,409, which were also classed as a manufacture of metal, and duty assessed at 45 per cent, ad valorem. Mr. Botsford had no sample of these, but testified, however, in substance, that they were all used for hat and bonnet material and trimmings, and for no other use. We now come to Nos. 221, 237, 240, 236, 236, 236 again,— all goods in the same invoice; that is, the invoice of September 7th,— which are entered on the invoice as “fancy ornaments.” The witness testified that they were a kind of chenille; that some of them, as I remember the testimony, were, if not all of them, silk chenille. You perhaps are familiar enough, if you have wives and daughters, to know that chenille is a sort of cord from which threads are cut, making a description of round velvet cord; that is, the threads are cut so that they project from the sides of the cord in a horizontal direction, and they are cut at greater or less length, according to the uses to which they are to be put, to make a fringed cord. This fringe goes all around it. Mr. Botsford testified in regard to these goods that they were trimmings for hats, bonnets, etc. They wore assessed by the collector as a manufacture of silk, at a duty of 50 per cent, ad valorem. There is no proof here as to the quantity of silk. In the absence of any proof upon that subject, I think that the collector’s classification, as goods composed of silk, or of which silk was the material of chief value, must be considered as binding, unless you are satisfied that they have no other use whatever than that of a trimming for hats, bonnets, and hoods. If the chenille has any other use, then the plaintiffs have not made out a case. Then there were four kinds of ornaments that were classed as “a manufacture of silk.” The witness describes them as silk bands, with embroidered ends. He says they were used for hat-bands, or trimming for hats; the embroidered ends being allowed to hang loose. If they were in fact silk bands, then they were properly classified as silk, although they might have been used for ornamenting a bonnet or hat.
This, gentlemen of the jury, is the case as far as the details are concerned, and it is for you to say whether any, and, if so, how many, of these goods are shown to you to be strictly materials for making and ornamenting hats, on which no duty was otherwise provided for; and also for you to say, as I have already said, whether the plaintiffs have satisfied you that the goods arc such as were used only for the general purpose of trimming and ornamenting hats, bonnets, and hoods.