1. In 1882 and 1863, A. imported into the port of Boston certain
goods upon which the collector imposed, and A. under protest paid,
a duty of thirty percent
ad valorem under the
mixed-material clause of the Act of March 2, 1861, 12 Stat. 192,
and of two cents per square yard under the ninth section of the act
of July 14; 1862.
Id., 553. A., claiming that under the
act of 1862 the goods were subject only to an
ad valorem
duty of thirty percent, brought suit to recover the difference. It
appeared in evidence that the goods were known in trade and were
bought and sold as poil de chevres, reps, plaids, lustres, Saxony
dress goods ; that they were always woven in colors, the yarns
being dyed or colored before weaving; that they never existed in
the gray or uncolored condition, but were made as delaines are
made, with a cotton warp and a worsted weft, the difference between
them and delaines being that the latter are a fabric of all-wool,
or cotton warp and worsted weft, made of yarns not dyed, the cloth
being printed or dyed in the piece; that as early as 1857, both the
all-wool delaines and those with cotton warp and wool or worsted
filling were known in trade by names changing from time to time, to
suit the fancy of importers and purchasers. It also appeared that
in several other particulars A.'s goods differed from delaines. The
court charged the jury that, in addition to the duty of thirty
percent
ad valorem imposed by the act of 1861, the act of
1862
"imposed a specific duty on all delaines, whether colored or
uncolored, and all goods of similar description to delaines,
whether colored or uncolored, if such delaines or goods of similar
description do not exceed in value forty cents a square yard,"
and that it was for them to determine whether A.'s goods were
"similar in description to these delaines, whether they are colored
or uncolored."
Held that the instruction was proper.
2. The changes of classification and phraseology made in the act
of 1862 show an intention to take out of the mixed-material clause
of the act of 1861 (which was limited to manufactures not otherwise
provided for) some descriptions of goods which the act placed
there, and, by transferring them to another class, subject them to
the additional duty prescribed for that class.
3. The phrase "of similar description" is not a commercial term,
and the tariff acts do not contemplate that goods classed under it
shall be in all respects the same.
The facts are stated in the opinion of the Court.
MR. JUSTICE STRONG delivered the opinion of the Court.
That the good imported by the plaintiffs were subject to a
Page 101 U. S. 279
duty of thirty percent under the act of March 2, 1861, is not
denied. They belonged to the class described in that act as
"manufactures, not otherwise provided for, composed of mixed
materials, in part of cotton, silk, wool or worsted, or flax." The
controversy between the parties now is over the question what was
added to that duty by the Act of July 14, 1862.
By the third item of sec. 13 of the act of 1862 a duty of
twenty-five percent
ad valorem was imposed upon
"all delaines, cashmere delaines, muslin delaines, barege
delaines, composed wholly or in part of wool, gray or uncolored,
and on all other gray or uncolored goods of similar description; .
. . on bunting and on all stained, colored, or printed, and on all
other manufactures of wool, or of which wool shall be a component
material, not otherwise provided for, a duty of thirty percent
ad valorem."
By sec. 22 of the same act a duty of thirty percent was levied
in the mixed-material clause quoted above. A subsequent act, passed
on the 5th of August, 1861, amended the third item of sec. 13 of
the Act of March 2, 1861, by striking from it the word "wool"
wherever it occurred, and inserting the word "worsted" in lieu
thereof.
Thus stood the law when the act of 1862 was enacted. It was an
act to increase the duties leviable under the act of 1861. The
ninth section enacted that in addition to the duties theretofore
imposed there should be levied, collected, and paid
"on all delaines, cashmere delaines, muslin delaines, barege
delaines, composed wholly or in part of worsted, wool, mohair, or
goat's hair, and on all goods of similar description, not exceeding
in value forty cents per square yard, two cents per square
yard."
"On bunting, worsted yarns, and on all other manufactures of
worsted, or of which worsted shall be a component material,
not
otherwise provided for, five percent
ad valorem."
A subsequent section of the act imposed an additional duty of
five percent
ad valorem also on manufactures, not
otherwise provided for, composed of mixed materials, in part of
cotton, silk, wool or worsted, hemp, jute, or flax.
An examination of these provisions will reveal very plainly that
the classification of the articles made subject to an increased
Page 101 U. S. 280
duty is not the same as it was in the act of 1861. The first
clause of the third item of sec. 13 of the act of 1861, as amended
in August, embraced only delaines composed wholly or in part of
worsted, and goods of similar description, woven in the gray, or
uncolored. The act of 1862 grouped with them delaines made wholly
or in part of wool, mohair, or goat's hair, and also delaines
composed wholly or in part of worsted, and goods of similar
description, nor in the gray or uncolored. It was therefore much
more comprehensive that the former act. So the second clause of the
third item of the thirteenth section of the act of 1861 differs
much from the corresponding clause of the act of 1862.
Similar changes of classification appear when the mixed-material
clauses of the two acts are compared. The charges were evidently
not without a purpose.
Such were the statutory provisions when the plaintiffs'
importations were made. The collector exacted duties at the rate of
thirty percent
ad valorem, and two cents per square yard,
claiming that the goods were goods of similar description to the
delaines mentioned in the ninth section of the act of 1862, and did
not exceed in value forty cents per square yard. On the other hand,
the plaintiffs claimed that the goods having been classed under the
act of 1861, among manufactures of mixed materials, not otherwise
provided for, and subjected to a duty of thirty percent, continued
in that class under the act of 1862, and were, therefore,
chargeable only with a duty of thirty-five percent. Accordingly,
having paid the duty exacted by the collector, under protest, they
have brought this suit to recover the difference between
thirty-five percent
ad valorem, and thirty percent and two
cents per square yard.
It appeared in evidence that the goods were known in trade and
were bought and sold as poil de chevres, reps, plaids, lustres,
Saxony dress goods. They were always woven in colors, the yarns
being dyed or colored before weaving. They never existed in the
gray or uncolored condition. But they were made, as delaines are
made, with a cotton warp and a worsted weft, the difference between
them and delaines (as stated in the plaintiffs' protest) being that
delaines are a fabric of all-wool, or cotton warp and worsted weft,
and made of yarns not
Page 101 U. S. 281
dyed, the cloth being printed or dyed in the piece. It further
appeared that as early as 1857 both the all-wool delaines and those
with cotton warp and wool or worsted filling were known in trade by
names changed from time to time, to suit the fancy of importers and
purchasers. It also appeared that in several other particulars the
goods of the plaintiffs differed from delaines. To these
differences it is unnecessary now to refer in detail.
Now, conceding, as we may, that the plaintiffs' goods came under
the mixed-material clause of the act of 1861, being excluded from
the delaine clause, that embraced only goods woven in the gray, it
is not perceived how that can throw any light upon the proper
construction of the act of 1862, which obviously intended a
different classification. Undoubtedly, acts of Congress
in pari
materia are to be construed with reference to each other. And
it may be admitted that when, in a later act, Congress uses
expressions that had a recognized meaning in a former act relating
to the same subject, they intended to use them in the same sense in
which they were first used, that is, with their recognized meaning.
But this rule has no bearing upon a case like the present. This is
not a question respecting the meaning of terms. We cannot see,
therefore, that the circuit court erred in refusing to affirm the
plaintiffs' first four points, and in declining to rule under what
clause of the act of 1861 the imported goods fell. After all, the
question for that court was the construction of the act of 1862,
and the construction given was, we think, correct. It could not
have been different if the court had undertaken to construe with it
the clauses of the act of 1861. As we have said, the changes of
classification and of phraseology made in the act of 1862 show an
intention to take out of the mixed material clause of the former
act (which was limited to manufactures not otherwise provided for)
some descriptions of goods which the act placed there, and by
transferring them to another class, subject them to the additional
duty prescribed for that class. If not so, what was the necessity
for a reclassification? Why change the language? It would have been
sufficient to declare what additional duty should be paid by each
class as formerly arranged. The act of 1861 therefore
Page 101 U. S. 282
could furnish no aid to the construction of the act of 1862, and
reference to it was unimportant, except for the purpose of
discovering the percentage of duties it imposed.
The fifth point was properly refused. The words "of similar
description" in the delaine clause of the act of 1862 cannot be
affirmed to have referred only to such goods as have the greater
number of characteristics in common with delaines. Some common
characteristics are of much more importance than others in
determining resemblances.
The sixth point propounded was as follows:
"Revenue laws designate and class substances according to the
general usage and known denominations of trade. The words 'all
goods of similar description' in the Tariff Act of 1862 refer to a
similarity for revenue purposes with goods previously enumerated,
and this is determined by what was then known and classed among
merchants as similar goods, and if being woven in the gray or
natural color of the worsted and other materials of which they are
composed is found to have been an important and pervading
characteristic commonly distinguishing goods known among merchants
as of similar description with delaines, then the goods on which
the duties in this case were assessed were not of similar
description with delaines, unless the jury find they were so woven
in the gray or natural color, and unless these goods possessed all
the pervading characteristics which in 1862 were commonly
understood among merchants as distinguishing goods known in
commerce as of a similar description with delaines, from all other
goods, the plaintiffs are entitled to a verdict."
This point the court declined to affirm, and we think rightly,
for several reasons.
There was no evidence, so far as it appears, to justify its
presentation. The record exhibits nothing tending to show what was
commonly understood among merchants as distinguishing goods, known
in commerce as of a similar description with delaines, from all
other goods. Nor was there any evidence that there were any goods
known by merchants, or in commerce, as goods of a similar
description with delaines, much less was it in proof that being
woven in the gray was regarded by merchants as determining that
goods so woven were not of similar description with delaines. In
regard to all these matters, the record is
Page 101 U. S. 283
silent. Composed, as the goods were, of the same materials as
delaines, having a similar general appearance, and intended for the
same uses, they might well have been of similar description with
colored delaines, though there were differences in the process of
manufacture.
The statute does not contemplate that goods classed under the
words "of similar description" shall be in all respects the same.
If it did, these words would be unnecessary. They were intended to
embrace goods like, but not identical with, delaines.
The court charged the jury, in answer to a prayer of the
defendant, that the similarity referred to in the expression
"'goods of similar description,' in the act of 1862, is a
similarity in respect to the product, and its adaptation to uses,
and to its uses, and not merely to the process by which it was
produced, and that if a class of goods were not in 1862
commercially known as delaines, it does not follow that they were
not goods of similar description, within the meaning of the
statute."
And again:
"These words are to be taken and understood in their popular and
received import, as generally understood in the community at large
at the time of the passage of the act."
Other similar instruction was given, and the court called
attention to all the alleged dissimilarities urged by the
plaintiffs, including the fact that delaines are woven in the gray,
and that the plaintiffs' goods were not, and summed up as
follows:
"If you find that the product or result is an article for
ladies' dresses made with a cotton warp and worsted filling, the
question for your determination is, whether the two kinds of goods
are substantially the same and alike. The process of manufacture,
the worsted in the goods of the plaintiffs being dyed previous to
weaving, is an element to be considered by the jury in coming to
their conclusion, but not alone and distinct from all others which
may have been established. It is for the jury to determine, from
all the evidence in the case, whether, by the colored filling made
and woven in the way and manner described with a cotton warp, the
product is or not an article substantially similar and like the
delaine fabrics, whether or not, while varying more or less in some
particulars from delaines, the goods were or not substantially the
same or substantially different
Page 101 U. S. 284
from them. If substantially the same article, then the duties
were properly assessed; but if they were substantially different,
and the plaintiffs' goods were not of a similar description to the
delaine fabrics, then they were not subjected to the additional
duty."
Notwithstanding the strenuous objections urged against such a
submission to the jury, we think it was correct. At least it was
quite as favorable to the plaintiffs as they had a right to demand.
Reliance is placed upon the rule, which we admit to be established,
that the commercial designation of an article among traders and
importers, where such designation is clearly established, fixes its
character for the purpose of the tariff laws. But the present is
not a case of commercial designation of articles. The phrase "of
similar description" is not a commercial term, and if it were,
there is no evidence in the record to show what it is understood to
mean among merchants and importers. In
Maillard
v. Lawrence, 16 How. 251, we have an instructive
case bearing upon this subject. There the question was whether
shawls came under one schedule of the act of 1846, imposing a duty
of twenty-five percent, or under another charged with a thirty
percent duty. In schedule C was included "clothing ready made and
wearing apparel of every description, of whatever material
composed, made up or manufactured," and it subjected them to thirty
percent duty. Schedule D described
"manufacturers of silk, or of which silk shall be a component
material, not otherwise provided for, manufactures of worsted, or
of which worsted shall be a component material, not otherwise
provided for,"
and imposed a twenty-five percent duty. The circuit court had
been requested to instruct the jury that if they should find that
at the date of the act the shawls in question were commercially
known as manufactures of worsted, or of which worsted was a
component material, and that they were not known in trade as
clothing ready made, or as wearing apparel, they were subject only
to a duty of twenty-five percent. This instruction was refused, and
this court held, correctly, holding that, while it was true that
where words of art, or phrases, are novel or obscure, as in terms
of art, it was proper to explain them by reference to the art or
science to which they were appropriate, the rule was so when the
words or phrases
Page 101 U. S. 285
are familiar to all classes, grades, and occupations; and that
the popular or received import of words furnishes the general rule
for the interpretation of public laws as well as of private
transactions. The court added, that if it could be conceded that,
in the opinion of mercantile men, shawls were not considered
wearing apparel, it would still remain to be proved that this
opinion was sustained by the judgment of the community generally,
or that the legislature designed a departure from the natural and
popular acceptation of language. The case was rested on the basis
that "wearing apparel" was not a technical term. Much less is the
phrase, goods "of a similar description."
Upon the whole, therefore, we think there was no error in the
charge of the judge in the court below.
Judgment affirmed.