In re Blumenthal

51 F. 76 | U.S. Circuit Court for the District of Southern New York | 1892

Lacombe, Circuit Judge.

The collector, although he classified these articles as buttons, seems to have done so only in order to make up a case for submission to the board of appraisers, himself expressing the opinion that it is a “strained construction of the law” so to classify them; and the board of appraisers expressly state that, in their opinion, the question is one of some doubt, and that the doubt is insufficient to justify a reversal of the decision of the collector of the port; and for that reason they affirm his action. The board find that the articles are “small, round masses of mother of pearl or shell, which have reached such a stage of-manufacture that they are unsuitable for use exceptas buttons.” The evidence does not seem to warrant, that conclusion, because there is distinct proof out of the mouths of witnesses whose character is unassailed, to the effect that these articles can be, and in fact are, used to a substantial extent for other purposes than for the completion of their transformation into buttons. The. board also find that the articles are neither shanked nor pierced; but technical!y, and among manufacturers, are known as “buttons.” Manifestly they are not shanked or pierced, and how they may be known technically among manufacturers is immaterial. The question to be determined here is whether they are “buttons,” within the language of the tariff act,—language which is to be taken in its ordinary meaning unless it appears that trade and commerce have given some specific meaning to the words employed. Now, although they may stop short of being complete buttons by a very small measure, that circumstance is immaterial; and it is also wholly immaterial with what intent the process of their manufacture was stopped at that point. Much testimony seems to have been taken before the board of appraisers going to show that the articles were imported in this unfinished condition, in order that they might escape the tariff rate laid upon pearl buttons, and pay the lower rate imposed on manufactures of pearl or shell. In Seeberger v. Furwell, 139 U. S. 608, 11 Sup. Ct. Rep. 650, it was held that the question as to the intent of the importer was wholly immaterial, so long as congress provided that goods in a particular condition should pay a lower rate of duty than goods in another. It was and is the right of the importer, if he so chooses, to put his goods into such a condition for importation here as will enable him to get them in at the lower rate. There is no finding of the board of appraisers as to whether the word “buttons” or the words “pearl buttons” have a distinct commercial meaning in trade and commerce. According to the usages of common speech, these articles here are not completed buttons, because they lack the essential element of a device whereby they may be affixed to garments. Some evidence was given, and exhibits introduced, as to a method of pasting them upon cloth, but it was apparently an experimental use only. Manifestly it distorts the cloth, as it has in the case of the exhibits submitted; and upon this argument it became apparent, from actual experiment, that the presence of a little moisture so softened the cement that the “button” dropped off, Under these circumstances, such testimony can hardly be considered sufficient to establish the proposition that the articles imported here are now in condition to be fastened to garments for use as buttons; and that being so, it seems to me that they come short of the designation “buttons,” as used in the trade, and in fact have not yet been sufficiently advanced in manufacture to become the “buttons” of every-day speech. For these reasons the decision of the board of appraisers is reversed, and the collector directed to classify the articles in suit as manufactures of mother of pearl, as claimed by the importers in their protest.