Velvet ribbons made of silk and cotton, silk being the material
of chief value, known as "trimmings," chiefly used for making or
ornamenting hats, bonnets, and hoods but sometimes used for
trimming dresses, being imported into the United States, are
subject to a duty of twenty percentum
ad valorem under
Schedule M of the Act of March 3, 1883, 22 Stat. 512, as "hats and
so forth, materials for . . . trimmings," and not to a duty of
fifty percentum
ad valorem under Schedule L of that act,
ib. 510, as
"goods, wares, and merchandise not specially enumerated or
provided for in this act, made of silk, or of which silk is the
component material of chief value."
This was an action to recover customs duties alleged to have
been illegally exacted. Judgment for plaintiffs. Defendant sued out
this writ of error. The case is stated in the opinion of the
Court.
MR. JUSTICE MATTHEWS delivered the opinion of the Court.
This was an action against the collector of the port of
Philadelphia by importers to recover an alleged illegal excess of
duties exacted by and paid to him. There was a verdict for $856.56
in favor of the plaintiffs, and judgment rendered thereon, to
reverse which this writ of error is prosecuted. The goods, which
were the subject of the duty, were velvet ribbons made of silk and
cotton, of which silk was the material of chief value. The custom
house officers assessed upon them a duty of fifty percentum
ad
valorem, under the last
Page 125 U. S. 129
paragraph of Schedule L of the Act of March 3, 1883, 22 Stat. c.
121, 488, 510, which reads as follows:
"All goods, wares, and merchandise not specially enumerated or
provided for in this act, made of silk, or of which silk is the
component material of chief value, fifty percentum
ad
valorem."
The plaintiffs claimed and the jury found under the instructions
of the court that the duty should have been assessed under the
following paragraph of Schedule M of the same act, 22 Stat. c. 121,
488, 512:
"Hats and so forth, materials for: braids, plaits, flats, laces,
trimmings, tissues, willow sheets, and squares used for making or
ornamenting hats, bonnets, and hoods composed of straw, chip,
grass, palm leaf, willow, hair, whalebone, or any other substance
or material not specially enumerated or provided for in this act,
twenty percentum
ad valorem."
A bill of exceptions sets out all the evidence in the cause,
together with the charge of the court to the jury, and instructions
asked for by counsel on both sides, respectively, with the
exceptions to certain parts of the charge as given, and to the
refusal of the court to charge as requested by counsel for the
defendant.
It appears from the evidence that the goods in question were
"trimmings," and that they were "used for making or ornamenting
hats, bonnets, and hoods." That they were "trimmings" was not a
matter of controversy -- all the witnesses on both sides spoke of
them as such. Neither was it disputed that they were "used for
making or ornamenting hats, bonnets, and hoods," but there was no
evidence that they were used exclusively for that purpose. The
testimony on the part of the plaintiffs tended to show that they
were chiefly used for making or ornamenting hats, bonnets, and
hoods, but that they also might be, and sometimes were, used for
trimming dresses. The testimony on the part of the defendant tended
to show that they were dress trimmings equally with hat trimmings,
and were commonly used as much for the one purpose as the other. In
this state of the proof, the judge charged the jury as follows:
"It is the use to which these articles are chiefly adapted
Page 125 U. S. 130
and for which they are used, that determines their character
within the meaning of this clause of the tariff act. It would not,
in my judgment, be a fair construction of the meaning of this act
to say that because certain articles are indifferently adapted for
use for different purposes, either of these purposes may determine
the rate of duty. It is the predominant use to which articles are
applied that determines their character. It certainly could not
have been the intention of Congress in framing this clause of the
law to admit the importation at a low rate of duty of articles
which may be used for certain purposes, but which are used chiefly
for another and different purpose. You will therefore determine to
which use these articles in question are chiefly devoted. If they
are hat trimmings, and used for making and ornamenting hats, then
the rate of duty imposed was excessive and the plaintiff is
entitled to recover the excess."
"If, however, in the determination of this question of fact, you
find the articles to be chiefly used for other purposes, you will
find for the defendant. The question is simply and purely one of
fact -- namely what is the predominant use to which these articles
are devoted. As you determine that question, you will return your
verdict."
The plaintiffs had requested the judge to charge the jury as
follows:
"I. That if the jury find the goods in question are used for
making or ornamenting hats, their verdict should be for
plaintiff."
"II. That where the articles are named or described in one
section of the tariff act, and a duty so imposed thereon, general
terms in the same act, although sufficient to comprehend such
articles, by which a higher rate of duty is fixed, are not
applicable to it, and will not prevail to make such higher rate of
duty, and that if the jury find the goods in question are hat
trimmings, used for making or ornamenting hats, and also find that
silk is the component material of chief value, the verdict should
be for the plaintiff."
"III. That the clause imposing a duty on hat trimmings
Page 125 U. S. 131
being subsequent in the act to the clause imposing a duty on
articles of which silk is the component material of chief value, if
the jury find the goods are hat trimmings used for making or
ornamenting hats, and also that they are articles of which silk is
the component material of chief value, that the subsequent clause
imposing the duty at twenty percent should be taken as showing the
latest and final intent of the lawmakers, and the verdict should be
for the plaintiff."
"IV. That if the jury find the goods in question are known and
used as hat trimmings, used for making or ornamenting hats,
although they may be sued from time to time for other purposes,
their verdict should be for the plaintiff."
In reply to these requests, the judge said to the jury as
follows:
"1. If the evidence shows that the goods upon which the duty was
charged are adapted to use and are used for various purposes other
than for trimming hats, the jury must be satisfied that the use to
which they are chiefly applicable, and for which they were
employed, was in making or ornamenting hats, to bring them within
the scope of the clause of the tariff act imposing a duty of twenty
percent."
"2, 3, and 4. Subject to the qualifications stated in the
foregoing answer to the first point, the three remaining points are
affirmed."
The counsel for the defendant requested the judge to charge the
jury as follows:
"I. That if the jury should find that the goods in question are
not specially enumerated or provided for and that the silk is the
component material of chief value, then the rate of duty should be
fifty percentum
ad valorem, and your verdict should be for
the defendant."
"II. That if the jury should find that silk is the component
material of chief value of the goods in question, and that they are
suitable for and are occasionally used for hat trimmings, but that
they are generally used for other purposes, then, as they are not
exclusively or specially used for hat trimmings, they cannot be
said to be 'used for making or ornamenting hats' within the meaning
of the act of Congress so as to subject
Page 125 U. S. 132
them to a duty of twenty percentum
ad valorem, and your
verdict should be for the defendant."
"III. That if the jury should find that the goods in question
can properly be classified under Schedule M, Act March 3, 1883, as
'trimmings used for making or ornamenting hats,' not specially
enumerated or provided for in said act, and subject to a duty of
twenty percentum
ad valorem, and can also properly be
classified as goods not specially enumerated or provided for, of
which silk is the component material of chief value, and subject to
a duty of fifty percentum
ad valorem, then, as two rates
of duty are applicable to the goods, they should be classified as
subject to a duty of fifty percentum, as this is the higher rate,
and your verdict should be for the defendant."
"IV. That unless the jury should find that the goods in question
are not specially provided for, and that by their style and
character they are fitted only for use in making or ornamenting
hats, then your verdict should be for the defendant."
The court declined to give these instructions and the counsel
for the defendant excepted as follows:
"1. Because the judge declined to charge as requested in
defendant's first, second, and fourth points, stating that those
points were substantially covered by the answers to the plaintiff's
points."
"2. Because the judge declined to charge as requested in the
defendant's third point."
"3. Because the judge charged the jury that"
"if the evidence shows that the goods upon which the duty was
charged are adapted to use and are used for various purposes other
than for trimming hats, the jury must be satisfied that the use to
which they are chiefly applicable, and for which they are employed,
was in making or ornamenting hats, to bring them within the scope
of the clause of the tariff act imposing a duty of twenty
percent"
"and that, 'subject to the qualifications stated in the
foregoing answer to the first point, the three remaining points are
affirmed.'"
In support of these exceptions, it is argued by the solicitor
general that the charge of the court, and the answers to
Page 125 U. S. 133
the points of instruction requested by the respective counsel,
misled the jury from the real point involved in the case to a
foreign issue by substantially instructing it that the inquiry was
whether these materials had a predominant use for making and
ornamenting hats, bonnets, and hoods, whereas the true construction
of the statute required that the inquiry which should have been
submitted to the jury was whether the materials imported were
"braids, plaits, flats, laces, trimmings, willow sheets, and
squares, . . . composed of straw, chip, . . . used for making or
ornamenting hats, bonnets, and hoods."
The instruction of the court, it is said, was that any material,
of which the predominant use was for the making or ornamenting of
hats, bonnets, and hoods, not specially provided for, should be
classified under this clause. It is contended that
"the true construction is that the use of the material must not
only be for making and ornamenting hats, bonnets, and hoods, but it
must be in some of the forms fixed in the statute -- that is, in
the form of either 'braids, plaits, flats, laces, trimmings,
tissues, willow sheets, or squares.'"
But this is an entire misconception of the charge of the court.
There was no controversy in the evidence as to whether these velvet
ribbons were or were not "trimmings." All the witnesses agreed that
they were; it was so assumed throughout the case; it was expressly
stated in the charge of the court to the jury that they must be
"trimmings" within the sense of the section in order to justify a
recovery. The court said expressly in its charge:
"If they are hat trimmings, and used for making and ornamenting
hats, then the rate of duty imposed was excessive, and the
plaintiff is entitled to recover the excess."
This necessarily implied that if they were not hat trimmings,
the plaintiffs could not recover, and also that even if they were
hat trimmings, but were not chiefly used for making and ornamenting
hats, the plaintiffs would not be entitled to recover, because in
the sentence immediately preceding in the charge, the court had
said to the jury: "You will therefore determine to which use these
articles in question are chiefly devoted." What the court charged
the jury therefore was that in order to entitle the plaintiffs to
recover,
Page 125 U. S. 134
they must find that the velvet ribbons in question were
"trimmings" used for making and ornamenting hats, and that they
were "chiefly" used for that purpose. The jury were told:
"If, however, in the determination of this question of fact, you
find the articles to be chiefly used for other purposes, you will
find for the defendant. The question is simply and purely one of
fact, namely, what is the predominant use to which these articles
are devoted? As you determine that question, you will return your
verdict."
The objection therefore to the charge of the court that it would
have authorized a recovery if the goods in question were materials
used for making or ornamenting hats, although not coming within the
enumeration of the section as "braids, plaits, flats, laces,
trimmings, tissues, willow sheets, and squares," is not well taken.
The court in fact did instruct the jury that they must find the
goods in question to be "trimmings," chiefly used for making and
ornamenting hats, bonnets, and hoods, composed of a material not
otherwise specially enumerated or provided for. It is not suggested
that the velvet ribbons are specially mentioned as subject to a
duty by that name or description. It is true that there was no
evidence showing that the exclusive commercial designation of such
velvet ribbons was "trimmings," but all the witnesses spoke of the
velvet ribbons in question as "trimmings," manifestly according to
the natural meaning of the word, and because they were used to trim
either hats or dresses, the real controversy being for which
purpose as "trimmings" they were principally used.
A further criticism, by way of objection, is made to that part
of the charge excepted to wherein the judge states that
"the jury must be satisfied that the use to which they (the
goods) are chiefly applicable, and for which they were employed,
was in making or ornamenting hats,"
etc. The point of this criticism is that the language, "and for
which they were employed,"
"would require the collector to suspend the assessment until he
should know how the goods were used or employed. That use or
employment of the goods might not take place for years after the
importation was made. The law clearly did not intend the
classification should be required to
Page 125 U. S. 135
await such an uncertain event."
This is hypercritical. The language does not admit of any such
construction. It means for which they were habitually employed, or
customarily employed, or usually employed, and not "for which they
had been employed." It is impossible that any jury could have
otherwise understood the instruction.
The remaining exception was on account of the refusal of the
court to instruct the jury as requested by the counsel for the
defendant in the third point,
viz.,
"That if the jury should find that the goods in question can
properly be classified under Schedule M, Act March 3, 1883, as
'trimmings used for making or ornamenting hats,' not specially
enumerated or provided for in said act, and subject to a duty of
twenty percentum
ad valorem, and can also properly be
classified as goods not specially enumerated or provided for, of
which silk is the component material of chief value, and subject to
a duty of fifty percentum
ad valorem, then, as two rates
of duty are applicable to the goods, they should be classified as
subject to a duty of fifty percentum, as this is the higher rate,
and your verdict should be for the defendant."
The section of the Revised Statutes upon which this instruction
was framed is ยง 2499, which provides:
"If any nonenumerated article equally resembles two or more
enumerated articles on which different rates of duty are
chargeable, there shall be levied, collected, and paid on such
nonenumerated article the same rate of duty as is chargeable on the
article which it resembles paying the highest duty."
The principle of this section, however, is not applicable to the
circumstances of this case. The velvet ribbons were found by the
jury to be trimmings chiefly used for making or ornamenting hats;
that brought them within the operation of Schedule M of the Act of
March 3, 1883, fixing the duty at twenty percentum
ad
valorem, and being specially provided for by that section,
they were excluded from the operation off all others.
The contention which appears to have been made on behalf of the
government on trial of the cause, that these velvet ribbons could
not be classified as trimmings used for making or ornamenting hats,
bonnets, and hoods, within the meaning
Page 125 U. S. 136
of the section levying the duty of twenty percentum
ad
valorem, unless they were shown to have been used exclusively
for that purpose, is not insisted upon by the solicitor general in
this Court. It was very properly abandoned, the charge of the court
upon that point being, in our opinion, clearly right.
The judgment of the circuit court is accordingly
Affirmed.