United States v. Semmer

| U.S. Circuit Court for the District of Southern New York | Feb 12, 1890

Lacombe, J.,

(orally charging jury.) The question for your determination upon the evidence in this case is whether the article imported here is a manufacture of glass, other than rough or rolled plate glass. Fortunately we have a very clear definition of the word “manufacture” given us by the supreme court in a recent case. I refer to the case of Hartranft v. Wiegmann, 121 U.S. 609" court="SCOTUS" date_filed="1887-05-02" href="https://app.midpage.ai/document/hartranft-v-wiegmann-91950?utm_source=webapp" opinion_id="91950">121 U. S. 609, 7 Sup. Ct. Rep. 1240, in which the court states that the mere fact of the application of labor to an article, either by haiid or by mechanism, does not make the article necessarily a manufactured article, within the meaning of that term as used in the tariff laws, unless the application of such labor is carried to such an extent that the article suffers a species of transformation, and is changed into a new and different article, having a distinctive name, character, or use. Of course, the tariff laws deal with the commerce of the country; and in interpreting them we continually revert to the usages of trade and commerce, and constantly have upon the stand commercial men to enlighten us as to that trade and commerce. So this very distinction which the supreme court has pointed out is to be taken by you, and applied in a commercial sense; that is, the labor bestowed upon the article is to be continued to such an extent as to transform it into a new and different article commercially, having a distinctive name in commerce, having a distinctive character commercially, or having a distinctive commercial use. It makes no difference whether you or I would have any particular use for the article as a different article from that from which it was made. The question is whether the trade and commerce of this country have a different use for the article,— other and different from that which they have for the article out of which it was made. p Take an illustration or two. From certain materials found in nature man gathers a proper proportion, and places them in a crucible or melting pot, and by the application of heat fuses them. The result of that fusion is a substance known as “glass.” If the melting pot were taken off the fire after the fusion is completed, and allowed to cool, the solid lump which would be found in it, as the result of the chemical union of the constituents which were placed in it, would be the substance known as “'glass,” — crude glass, the crudest glass conceivable. It is a manufacture. The component materials are transformed into a new substance. Now, that same glass may be, by the application of labor, transformed from the molten state, by a process of blowing and cutting, into an article which is known as cylinder or window glass, which is a manufacture of glass, because it is of a distinctive character, and has a distinctive name, and a distinctive use, from the crude glass out of which it was made. And so, by a different process of manufacture, this same crude glass, when poured upon a table and pressed with a roller, becomes what is known in trade and commerce as rough or rolled cast plate-glass. That, also, is a manufacture of glass. That, also, has a use, character, or name distinct from the use, character, or name of the crude glass in the crucible out of -which it was made. It also appears here, with regard to the polished plate-glass, that by various processes, and by the application of a great deal of labor, this rough or rolled plate-glass is eventually transformed into polished plat e-glass. It needs no witnesses to toll us that polished plate is a manufacture of glass, within the definition of the supremo court. We need only to walk up and down .Broadway to see that acres of it are applied to a use to which rough plate-glass is not applied. It also is, therefore, a manufacture of glass.

It is claimed in this particular case that the article Exhibit S, the subject of importation here, has been subjected to such an amount of labor (that is, that labor has been applied to it to such an extent) that it has obtained in commerce a distinctive name, and has a different commercial character, and is commercially applied to a different use from that of the rough plate-glass which it was before the labor was applied to it; and whether his claim is sound or not is the only question which comes before you for your determination. That it was rough plate-glass originally, I charge you. That rough plate-glass is a manufacture of glass I also charge you. .But, inasmuch as the defendant has by his protest confined himself to the claim that it is a manufacture oí' glass not enumerated in the tariff' act, and the tariff act does enumerate rough plate-glass, he must satisfy you (for the burden is upon him) by a fair preponderance of proof that it is a manufacture of glass other than rough plate-glass. If he has succeeded upon the proof in satisfying you upon that point, — that it is rough plate-glass advanced to such a stage, by the application of labor, that it has been transformed commercially into a new and different article, with a distinctive commercial name, character, or use from that out of which it was made, — then he is entitled to your verdict; otherwise your verdict must be for the plaintiff.

Reference has been made by counsel to the intended use of this particular importation. That is of no particular concern in this case. Where congress has not chosen to fix a tariff according to the specific use of a particular article imported, (and that is the case here,) it is of no con-' cern to what particular use that particular article is to be applied. The question is, what are the commercial uses of the article, if there are several of them, or what “is .the general commercial use if there is only one, and not for what particular use did this individual importer bring in this specific lot of goods? The same duty is to.be laid upon the class of goods, irrespective of the individual who imports them, or of the use to which they are put.

The plaintiff also insists upon the similitude which it claims the evidence shows to exist between this and polished plate-glass. The similitude clause upon which the plaintiff relies, however, applies only to articles which are not enumerated in the tariff law. This article, by one name or the other, either as rough glass, or as a manufacture of glass, is enumerated in the tariff act, and therefore the similitude clause does not apply. (After ruling upon various requests by both sides, the court proceeded:) Among the other requests asked by the plaintiff is this:

“To find that the goods are a ‘ manufacture of glass,’ the jury must be convinced by a fair preponderance of proof that they are made in a shape for use as a finished product, without being afterwards materially changed in form, and are not merely an unfinished product of partially manufactured plate-glass, suitable only to be used in the nature of raw material, in a convenient form for finishing into a complete article. The application of labor to an article, either by hand or by mechanism, does not make the article necessarily a manufactured article, within the meaning of that term as used in the tariff act.”

A part of that proposition I have already/Charged you. The rest I now charge you; calling attention, however, to the phraseology of the request. You must be, no doubt, convinced, by a fair preponderance of proof, that the goods which are claimed to be manufactures are made in a shape for use as a finished product, without being afterwards materially changed in form. But it is not a material change in form to cut, for instance, 30 yards of carpet off of a running piece of stair carpet; and it is not a change in form to cut 24 square feet of glass to be used fon the lighting of a show window, 6 feet by 4, out of a sheet which may happen to contain 28 or 30 square feet. So, too, while in order to find that the goods are a manufacture of glass you are to be satisfied that they are not merely an unfinished product of partially manufactured plate-glass, suitablepnly to be used in the nature of raw material, you are yet to give due heed to that word “only.” If they subserve some other use than that which the plaintiff insists they subserve to-wit, raw material, — material partially advanced, which, by further steps, by further labor, becomes something else, — if, I say, they subserve some other or different use in commerce, — then you are entitled, so far as that branch of the case is concerned, to find them a manufacture of glass.

The jury rendered a verdict for the defendant.