Lawrence v. Allen
48 U.S. 785 (1849)

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U.S. Supreme Court

Lawrence v. Allen, 48 U.S. 7 How. 785 785 (1849)

Lawrence v. Allen

48 U.S. (7 How.) 785

Syllabus

By the fifth section of the Tariff Act passed on 30 August, 1842, 5 Stat. 555, a duty of thirty percent is imposed on "India rubber oil cloth, webbing, shoes, braces or suspenders, or any other fabrics or manufactured articles composed wholly or in part of India rubber."

In the ninth section, among other articles declared to be exempt from duty is "India rubber in bottles or sheets, or otherwise unmanufactured."

By these sections, the duty of thirty percent is payable upon shoes made of India rubber in Brazil, although they are made by the same process as bottles or sheets, provided they come to this country in a condition to be worn without further material labor on them here, and were actually worn in this form, and provided they were called, in the language of commerce, "India rubber shoes," and of these two facts the jury ought to judge.

The articles come within the letter of the law, and the act of 1842 was framed with a desire to tax whatever might compete with our own manufactures.

When India rubber is made into a shape suitable for use, it may be considered a manufactured article. Originally it was made into the shape of boots, to be used

Page 48 U. S. 786

and worn in Brazil and afterwards into shoes, but not intended to be sent abroad as a raw material.

The fact that the material of which these shoes are made is used for other articles of manufacture after their importation does not change this view of the subject.

This was an action of assumpsit commenced by Allen and Paxton, the defendants in error, in the supreme court of the State of New York, for the purpose of recovering back from the plaintiff in error, collector of customs for the port of New York, certain moneys exacted by him as collector for duties upon a quantity of common India rubber shoes imported into the port of New York in September, 1845, by the defendants in error, from Para, in Brazil.

Under the provisions of the Act of Congress of 2 March, 1833, the suit was removed into the Circuit Court of the United States for the Southern District of New York.

The declaration contained the common money counts, to which the defendant pleaded the general issue.

The cause was tried in May, 1847, and under the instructions of the court the jury found a verdict for the plaintiffs below for $2,908.60.

A great deal of evidence was adduced upon the trial by the plaintiffs to show the manner in which the shoes are made in Brazil and their use as an article of commerce. Much of this testimony was objected to as inadmissible. A part of it is transcribed because it is referred to in the opinion of the court.

The plaintiffs' counsel then called as witnesses James E. Smith, Amory Edwards, George G. Wales, and William H. Edwards, who, being sworn, severally testified that they were acquainted with the articles now the subject of controversy and with other articles of India rubber imported from Para; that they had been at Para, and were acquainted with the process of producing or making India rubber; that the juice or sap of the trees, when collected, is about the color and consistency of milk, and is called milk; that it is placed in a vessel of convenient size; that moulds of clay, or of wood covered with clay, in the shape of a shoe, or bottle, or other shape, and to which a handle is attached, are dipped in the milk, and immediately held in the heat and smoke of a fire made of a peculiar kind of nut, which dries the milk and gives it a dark color; that this process is repeated several times until the coating is sufficiently thick, when the article is taken from the mould by breaking the clay of which it is made or with

Page 48 U. S. 787

which it is covered, and the pieces of clay are taken out; that shoes and bottles are then generally stuffed with straw, and that the article is then ready for sale and exportation; that bottles are made in two or three minutes; that it takes somewhat longer, say about five minutes, to prepare a shoe; there must be a new mould for every bottle; the foot-shaped mould is the best form for dipping. The shoe shape is the most convenient mode of making India rubber. The stuffing of the shoe is done by the parties who buy them in Para for exportation. The shoes are sometimes shipped in bulk and sometimes stuffed. The term "India rubber shoes" comprehends all kinds of shoes made of India rubber, both manufactured and unmanufactured; that the price of India rubber shoes in Para has varied greatly since 1826; that the great demand for India rubber of late years in the United States for dissolving for manufacturing purposes has raised the price in Para; that no such things as suspenders are made in Para; that nothing is made there in a more manufactured state than the square sheets; that India rubber shoes are sometimes sold and shipped at Para without being stuffed with straw.

Much evidence was also introduced by the defendant the object of which was to show that the articles were known in commerce by the name of "India rubber shoes," and were bought and sold in the market as imported, without any alteration of any consequence.

The counsel for the defendant then prayed the court to decide the law of the case and to instruct and charge the jury as follows:

First. That in construing and applying the provisions of the tariff law of August 30, 1842, to the present case, the terms used therein are to be understood in their known commercial sense, as used and understood in the ports of the United States prior to and at the date of said law.

Secondly. That as all "India rubber shoes" imported from foreign countries are by the said provisions subject to thirty percent duty, the true and only inquiry in the present case is whether, in a commercial sense and among commercial men dealing therein, the articles in question were imported into and usually known and bought and sold in the ports of the United States prior to and at the date of the law under the name and denomination of "India rubber shoes."

Thirdly. That if the jury shall be satisfied from the evidence that the articles in question were imported into and usually known and bought and sold in the ports of the United States prior to 30 August, 1842, under the name and denomination of "India rubber shoes," then they are liable

Page 48 U. S. 788

under the law to a duty of thirty percent ad valorem, and the jury should be instructed to find for the defendant, and that in the case stated, the jury should be instructed to find for the defendant notwithstanding they should also be satisfied from the evidence either

1st. That the term "India rubber shoes," as used in commerce, includes all other kinds of shoes made in whole or in part of India rubber, as well as these, or

2d. That "India rubber shoes," in a more finished condition and of a better quality were imported from England, France, or other countries prior to 1842 and were then and are now known in the markets, or

3d. That some additional labor is usually applied to these articles, or is necessary to fit them for convenient use as shoes, or

4th. That these articles are extensively used by manufacturers in the United States for the purpose of being made in whole or in part into other articles, or

5th. That no more or other kind of labor is required to make these articles than is required to make India rubber in bottles or sheets or other kinds of India rubber which, by the seventh article of the ninth section, is entitled to admission as free.

It being insisted on the part of the defendant that neither of these circumstances, nor all of them combined, can nullify the explicit terms of the preceding fifth section by which all kinds of "India rubber shoes" are subjected to the thirty percent duty, nor make free these articles, provided they are and were known in commerce under the name "India rubber shoes."

But his honor the presiding judge refused so to decide the law of the case or so to instruct the jury, and, on the contrary, the said judge did then and there decide and did then and there charge and instruct the said jury that the case, in the view taken thereof by the court, entirely depended on the true legal construction of the Tariff Act of August 30, 1842, and involved no question of fact for the jury; that India rubber, when used in whole or in part in the manufacture of oil cloth webbing, shoes, braces, or suspenders, or any other fabrics or manufactured articles, was, by the tenth article of the fifth section of this law, subjected to the duty of thirty percentum ad valorem specified in the clause relating to these fabrics contained in said tenth article; that by the seventh article of the ninth section of said act, India rubber, in bottles or sheets or otherwise unmanufactured, is declared to be exempt from duty; that by virtue of this clause, India rubber existing in the particular forms enumerated therein and existing in any other form in which it may be imported is free from duty if

Page 48 U. S. 789

unmanufactured; that, as these two clauses were both in the mind of the legislature when treating of India rubber, they are to be construed together; and that, so construed, the fair conclusion is -- and such the said judge decided to be the true legal interpretation of said provisions -- that Congress, in laying the duty, had special reference to the manufactured article in a finished state, and intended to allow India rubber to come in as free, whatever might be its form, if it had not been brought, by manufacture, into a finished state; that as it was not pretended that the goods in question were shoes manufactured out of the material called India rubber, and as it was admitted by all the witnesses that they were brought into the form of a shoe in the process of making the material called India rubber, they were not "India rubber shoes" within the meaning of the tenth article of the fifth section, but were to be regarded as raw material and as unmanufactured within the meaning of the seventh article of the ninth section; that the goods in question were therefore entitled to be admitted free of duty; that the plaintiffs having protested in writing against the payment of any duty thereon, and the collector having, notwithstanding, illegally exacted a duty of thirty percentum ad valorem thereon, the plaintiffs were entitled to recover back the moneys so exacted except so far as the same had been refunded by way of drawback, and that the jury would therefore render a verdict for the amount of such remaining moneys, with interest thereon to the day of trial, in favor of the said plaintiffs.

And thereupon the said defendant, by his counsel aforesaid, then and there excepted to the whole of the said decision, charge, and instruction of the said judge, and particularly to those parts thereof wherein the said judge decided and held that the said case involved no question of fact for the jury, and wherein the said judge instructed and charged the jury, as matter of law, that the goods in question were entitled, under the act of Congress above referred to, to be admitted free of duty, and wherein the said judge also instructed and charged the said jury as matter of law that the plaintiffs were entitled to recover back the moneys exacted by the defendant as duties on the said goods; and the said defendant, by his said counsel, did also then and there except to the aforesaid refusal of the said judge to decide the law of the case, and to instruct and charge the said jury in conformity with the prayer of the counsel of the said defendant hereinbefore contained.

And the said defendant, by his said counsel, thereupon then and there further excepted to the decision of the said judge in admitting as evidence against the defendant the deposition of

Page 48 U. S. 790

Samuel K. Appleton, and the parts thereof particularly objected to by the said counsel, as hereinbefore mentioned, and in admitting as evidence against the defendant the testimony of James E. Smith, Amory Edwards, George C. Wales, William H. Edwards, and John L. Ripley, hereinbefore particularly objected to by the said counsel, and did also further except to the decision of the said judge in excluding the instructions of the Comptroller of the Treasury hereinbefore mentioned.

Upon this exception, the case came up to this Court.

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