Sykes v. Magone

38 F. 494 | U.S. Circuit Court for the District of Southern New York | 1889

. Lacombe, J.,

(orally charging the jury, after stating the facts as above.') There are. a number of articles as to which no duty is to be paid. Those figure on the free list. With regard to about everything else which comes here, congress has undertaken to prescribe the specific rate of duty which it shall pay. Of course to do this by a verbal enumeration of every known article,' whether a natural growth or a product of manufacture, would be practically impossible. So, after enumerating with greater or less detail, and by special or general terms, such articles as it occurs to them to enumerate in that way , the framers of these tariff acts have devised various catch-all clauses, in order to prevent any articles, which should in their judgment pay duty, from slipping through. One of these catch-all clauses is known as the “Similitude Clause.” It provides that-if an article is -brought to one of our ports of entry, which is not enumerated by general or special name anywhere in the long lists of dutiable articles, then inquiry shall be made as to whether it bear£ a similitude, either in material, quality, texture, or the use to which it may be applied, to 'any article enumerated in these several lists. Further, the same section provides that if the article be found to equally resemble two different articles on these lists, bearing different rates of duty, then the rate of duty assessed upon the article shall be that which is assessed on the higher of the two articles to which it bears a similitude. Finally, in case all the other catch-all clauses (for there are others, to which I need not refer) should fail to hold the article, there is a general provision that upon every manufactured article not enumerated or otherwise provided for in the act there shall be a duty of 20 per cent. That was the duty which the collector imposed in this particular case. Now, the question before ymu will be determined by the application of this similitude clause, or bj' your finding that it cannot be applied to the case in hand. The similitude, which the act refers to, is a similitude either in material, quality, texture, or the use to which the article may be applied. You will -understand that the similitude referred to in the act must be a substantial similitude, not merely an adaptability to sale as a substitute for the article to which it is said to be assimilated, but representing either its employment or its effect in producing results. Nor is it enough that the imported article bears more resemblance to one enumerated article than to another, because it might not bear any substantial resemblance to either. The two clauses in the tariff act to which it is contended by one side or the other that this article bears a substantial resemblance -are, those providing, the one for logwood, and for extracts and decoctions of logwood, and other dyewoods, and the other for colors and paints, including lakes, whether dry or mixed. The definitions of the dictionary with regard to these three words should perhaps .be read to you, for, in the absence of any testimony as to a specific and peculiar meaning in trade and commerce, it will be assumed that the words are used in trade with the same meaning as that in which they are Used in every day speech; and for that meaning when wre are at a loss for it, we usually'- consult the dictionary. According to the dictionary, a “decoction” is “an extract prepared by boiling something in water.” An “extract” is “anything drawn from a substance by heat, solution, distillation, or-chemical process, as essences, tinctures, and the like.” A “lake ” is “ a compound of animal or vegetable coloring matter and a metallic oxide.” Besides these definitions you have had testimony from those in the trade, and from chemists, as to the use to which this imported article is put, and as to its chemical composition. From that testimony, bearing these definitions in mind, you are to determine, in the first place, whether it bears a substantial resemblance to either of these groups of articles, — that is, either to extracts, and decoctions of logwood and other dyewoods; nr to colors and paints, including lakes, whether dry or mixed. Of course you will have to be satisfied that the resemblance that it bears is a substantial one; and you will feel under no constraint in finding a resemblance where you have doubt as to whether or not it exists, in order that the article may not escape payment of duty, because, as I have said before, there is another and final clause which provides for all manufactured articles not covered by the earlier clause. Therefore, you will determine, in the first place, whether it bears a substantial resemblance to- either. If you come to the conclusion that it bears a substantial resemblance to extracts and decoctions of logwood, and not to lakes, your verdict will be for the plaintiff. Should you, on the other hand, reach the conclusion that it bears a substantial resemblance to colors and paints, including lakes, whether dry or mixed, and not to dyewood, extracts, and decoctions of logwood, then your verdict will be for the defendant. If you reach the conclusion that it bears a substantial resemblance to both, but are unable to determine as to which it resembles most, — in other words, if it resembles both equally, or has a substantial resemblance to both, — then again your verdict must be for the defendant. Finally, should you reach the conclusion that it bears a substantial resemblance to neither, then again your verdict must be for the defendant, because the article in the latter case will be covered by the final clause as a non-enumerated manufactured article.

The jury rendered a verdict for the defendant.