Robertson v. Rosenthal
132 U.S. 460 (1889)

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U.S. Supreme Court

Robertson v. Rosenthal, 132 U.S. 460 (1889)

Robertson v. Rosenthal

No. 57

Argued November 4, 1889

Decided December 16, 1889

132 U.S. 460

ERROR TO THE CIRCUIT COURT OF THE UNITED

STATES FOR THE SOUTHERN DISTRICT OF NEW YORK

Syllabus

Ordinary headless hairpins made of steel wire and iron wire, when imported into the United States, are subject to a duty of 45 percent as "manufactures, articles or wares, not specially enumerated or provided for," "composed wholly or in part of iron, steel, copper," etc., and not as "pins, solid head or other."

The case as stated by the court in the opinion was as follows:

This was an action brought to recover duty alleged to have been illegally exacted by the defendant as collector of the port of New York upon certain merchandise imported by the plaintiffs. It was stipulated on the trial that if the plaintiffs should be entitled to recover on the main question raised by their protest, a verdict should be entered generally in plaintiffs' favor, subject to adjustment as to formal requisites and to amount at the custom house, under the direction of the court.

Evidence was given tending to show that on or about July 5th and 7th, 1884, the plaintiffs imported certain iron wire and steel wire hairpins, upon which the collector assessed a duty of 45 percent ad valorem, under that part of Schedule C, section 2502 of the Revised Statutes, as enacted by the Act of March 3, 1883, 22 Stat. 488, 501, c. 121, which reads:

"Manufactures, articles or wares, not specially enumerated or provided for in this act, composed wholly or in part of iron, steel, copper, . . . and whether partly or wholly manufactured, forty-five percentum ad valorem."

The plaintiffs paid the amount of duty assessed and protested as follows:

"We protest against your decision as to the rate and amount of duties to be paid on the hairpins entered by us for consumption July 5, 1884, per Donau 86,888, from Bremen, because

Page 132 U. S. 461

they are dutiable at 30 percent ad valorem under tariff Schedule C, pins, solid head, or other."

"If not so dutiable, they are dutiable under said schedule at the rates per pound prescribed for the iron or steel wire of which they are made."

"We pay the excess exacted under compulsion solely to get the goods."

To sustain the issues upon their part, the plaintiffs introduced Leopold Kramer, who testified that he was an importer of fancy goods in the house of plaintiffs, and that their business was the general importation of notions, etc., and who identified the invoices and entries involved in this action, and also showed that the rate of duty upon said hairpins, if classified as "Pins, solid head or other," would not be less than the rate of duty chargeable upon the iron or steel wire from which they were made.

Witness testified further as follows:

"These samples are samples of the articles imported, and are known ordinarily as hairpins. There are also samples of various other kinds of pins one is a crimping pin, one a solid head pin, one a pin with a black head called a bonnet pin, used to fasten shawls; also diaper pins. They are made of iron wire and steel wire, and have no heads at all. Diaper pins and crimping pins have not"

solid heads. They have no heads.

And on cross-examination:

"Some pins have heads, but are not solid-headed pins. Bonnet pins and shawl pins are pins with heads, but are not solid-headed pins. Those pins [referring to card] are pins with heads, but are not solid-headed pins."

"Q. Are solid-headed pins the ordinary pins that every"

body has?

"Ans. Yes; not everybody. I am familiar with dress pins. I don't know anything about clothes pins, except that there are such things. I know there are finch pins and king pins, for locomotives, but they are not used for the same purpose as the articles in suit."

Plaintiffs having rested, defendant's counsel moved the court to direct a verdict for the defendant upon the following grounds, to-wit:

"1st. That in prior laws, pins, solid-head or other, and hair

Page 132 U. S. 462

pins were both provided for, which shows that as Congress uses the phrase pins, solid-head, or other, it does not include hairpins."

"2d. That the phrase pins, solid-head, or other applies only to pins with heads of some kind."

"3d. Generally, that the evidence does not make out a case for recovery by the plaintiffs."

"Which motion the court denied; to which ruling defendant's counsel then and there excepted."

The court thereupon charged the jury as follows:

"Gentlemen, if you think these articles are pins according to the common understanding of the class of pins that are known as solid-head pins, or other pins, return a verdict for the plaintiffs; if not, return a verdict for the defendant. You may take the case."

The jury having returned a verdict for the plaintiffs, and the amount having been subsequently ascertained as agreed, judgment was entered against the collector accordingly, and the cause brought here on writ of error.

MR. CHIEF JUSTICE FULLER, after stating the facts as above, delivered the opinion of the court.

The articles in question were ordinary headless hairpins, made of steel wire and iron wire, and the question is whether they were dutiable as "pins, solid head or other."

By section 13 of the Act of July 14, 1862, 12 Stat. 555-557, c. 163, a duty of five percentum ad valorem, in addition to then existing duties, was levied on many articles, including "pins, solid head or other," and

"manufactures, articles, vessels, and wares, not otherwise provided for, of gold, silver, copper, brass, iron, steel, lead, pewter, tin, or other metal, or of which either of these metals, or any other metal, shall be the component material of chief value. "

Page 132 U. S. 463

By section 21 of the Act of July 14, 1870, 16 Stat. 264, c. 255, a duty of 50 percentum ad valorem, was levied "on hairpins made of iron wire."

Under section 2504, Title XXXIII of the Revised Statutes, "Schedule M -- Sundries," we find "Hairpins, made of iron wire, fifty percentum ad valorem; . . . Pins, solid head or other, thirty-five percentum ad valorem." 2d ed., pp. 476, 480. And in "Schedule E -- Metals," (p. 465):

"All manufactures of steel, or of which steel shall be a component part, not otherwise provided for, forty-five percentum ad valorem. But all articles of steel partially manufactured, or of which steel shall be a component part, not otherwise provided for, shall pay the same rate of duty as if wholly manufactured."

And also (p. 467):

"Manufactures, articles, vessels, and wares not otherwise provided for, of . . . iron . . . or other metal, except . . . steel, or of which either of these metals shall be the component material of chief value, thirty-five percentum ad valorem."

In March, 1875, certain imported steel hairpins having been held at the port of New York dutiable at fifty percent ad valorem because of their similarity to iron wire hairpins, the Treasury Department decided that this was erroneous, and that they were properly chargeable with the rate of duty applicable to manufactures of steel not otherwise provided for. Synopsis T.Dec. 1875, p. 56, No. 2140.

By § 2502, Title XXXIII, Revised Statutes as enacted by the Act of March 3, 1883, 22 Stat. 501, c. 121, "Schedule C, Metals," a duty of thirty percentum ad valorem was levied on "pins, solid head or other," and by the last paragraph in the same schedule, on

"manufactures, articles, or wares, not specially enumerated or provided for in this act, composed wholly or in part of iron, steel, . . . or any other metal, and whether partly or wholly manufactured, forty-five percentum ad valorem."

It will be perceived that although hairpins are not mentioned eo nomine, this last paragraph covers iron and steel hairpins, as was ruled as to the latter by the department in 1875, in the construction and application of similar language.

Page 132 U. S. 464

Inasmuch as Congress, for the thirteen years prior to 1883, treated hairpins, for revenue purposes, as a distinct article from "pins, solid head or other," we consider it unreasonable to conclude that the legislation of 1883 was intended to do away with a distinction manifestly regarded as inherent in the thing itself.

In short, it is doubtful if it could ever have been properly held that hairpins were ejusdem generis with the pins referred to in the tariff acts; but, if this could have been so prior to 1870, we are of opinion that at that time, Congress assigned them to a class by themselves, because essentially sui generis, and therefore that their not being specifically enumerated in 1883 did not relegate them to the category of "pins, solid head or other," as ingeniously argued by counsel.

From these views the conclusion follows that the court below should have instructed the jury to find for the defendant.

The judgment is reversed, and the cause remanded with a direction to award a new trial.

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