Goods made of calf hair and cotton were imported in November,
1876. The collector assessed duties on them at 50 cents a pound,
and 35 percent
ad valorem, as upon goods made of wool,
hair, and cotton, under Schedule L of § 2504 of the Revised
Statutes (p. 471, 2d ed.). The goods contained no wool. The
importer protested that the goods were liable to less duty under
other provisions. In an action to recover back the alleged excess
paid, the defendant at the trial sought to support the exaction of
the duties under the first clause of § 2499, commonly called the
"similitude" clause.
Held that this was a proper
proceeding under the pleadings in the case.
The court below having directed a verdict for the defendant,
this Court reversed the judgment on the ground that the question of
similitude was one of fact which should have been submitted to the
jury, as it appeared that the imported goods were of inferior value
and material as compared with the goods to which it was claimed
they bore a similitude. The case of
Arthur v. Fox,
108 U. S. 125.
commented on.
This was an action brought to recover duties alleged to have
been illegally exacted. Verdict for defendant and judgment
Page 127 U. S. 364
on the verdict. The plaintiffs sued out this writ of error. The
case is stated in the opinion.
MR. JUSTICE BLATCHFORD delivered the opinion of the Court.
This is an action at law brought by Henry Herrman, Charles
Sternbach, and Abraham Herrman against Chester A. Arthur, collector
of customs at the port of New York, in the Superior Court of the
City of New York and removed by the defendant into the Circuit
Court of the United States for the Southern District of New York,
to recover the sum of $367, alleged to have been exacted by the
defendant from the plaintiffs as excessive duties on the
importation of goods made of calf hair and cotton into the port of
New York in November, 1876. At the trial, before a jury, the court
directed a verdict for the defendant, which was rendered, and a
judgment was entered for the defendant for costs.
It appears by the bill of exceptions that the goods were
described in the invoices and entries, some as "brown calf hair
seal skin," some as "brown calf hair," and some as "brown calf hair
luster." The duties were assessed at 50 cents a pound, and 35
percent
ad valorem, as upon goods made of wool, hair, and
cotton. This assessment took place under the provision of Schedule
L of § 2504 of the Revised Statutes, p. 471, 2d ed., which was as
follows:
"Woolen cloths, woolen shawls, and all manufactures of wool of
every description, made wholly or in part of wool, not herein
otherwise provided for, fifty cents per pound, and, in addition
thereto, thirty-five percentum
ad valorem."
The evidence showed that the goods in fact contained no wool,
the warp being of cotton and the filling of cow or calf hair. There
were 13 cases of the goods; those in 12 of the cases cost under 40
cents a pound, and those in the remaining case cost over 40 and
under 60 cents a pound. The plaintiffs protested against the
liquidation because the
Page 127 U. S. 365
goods were returned by the appraiser as a manufacture of wool,
hair, and cotton, and, as such, liable to a duty of 50 cents per
pound and 35 percent
ad valorem, and claimed in the
protest that the goods were a manufacture of cow and calf hair and
cotton, and liable, under § 2499 and the last paragraph of Schedule
A of § 2504, p. 461, 2d ed., to a duty of 35 percent
ad
valorem as partly manufactured of cotton, or else liable to a
duty of 30 percent
ad valorem under the provision of
Schedule M of § 2504, p. 476, 2d ed., as follows: "Hair cloth known
as
crinoline cloth,' and all other manufactures of hair, not
otherwise provided for, thirty percentum ad valorem."
Section 2499 provided as follows:
"There shall be levied, collected, and paid on each and every
nonenumerated article which bears a similitude, either in material,
quality, texture, or the use to which it may be applied, to any
article enumerated in this title, as chargeable with duty, the same
rate of duty which is levied and charged on the enumerated article
which it most resembles in any of the particulars before mentioned,
and 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, and on all
articles manufactured from two or more materials, the duty shall be
assessed at the highest rates at which any of its component parts
may be chargeable."
The last paragraph of Schedule A of § 2504 read thus:
"Cotton braids, insertings, lace, trimming, or bobbinet, and all
other manufactures of cotton, not otherwise provided for,
thirty-five percentum
ad valorem."
In claiming that the duty should have been 35 percent
ad
valorem, reference was made to the last clause of § 2499, as
providing that, as the goods in question were manufactured from
cotton and hair, the duty was assessable at the highest rate at
which either of those two component materials was chargeable, and
that the highest rate, being 35 percent
ad valorem, was
imposed on the manufacture of cotton, under the last paragraph of
Schedule A of § 2504. The further
Page 127 U. S. 366
claim of the plaintiffs was that if the goods were not thus
liable to a duty of 35 percent
ad valorem as a manufacture
of cotton, they were liable to a duty of 30 percent
ad
valorem as a manufacture of hair under the above-quoted
provision of Schedule M of § 2504. The plaintiffs' counsel read in
evidence a decision of the Treasury Department, made in 1874, to
the effect that calf hair and cotton goods were held to be
dutiable, under § 2499, Rev.Stat. at the highest rate at which any
of their component parts was chargeable -- namely cotton -- and not
under the provision for manufactures of hair. This would have given
a duty of 35 percent
ad valorem. But it clearly appeared
at the trial that the duty assessed of 50 cents a pound, and, in
addition thereto, 35 percent
ad valorem, was assessed
under the erroneous view that the goods contained wool.
The plaintiffs having thus shown that the liquidation made was
illegal whether the proper duty should have been 35 percent or only
30 percent, the defendant sought to support the validity of the
assessment of duties which he had made under the first clause of §
2499, before quoted, that
"There shall be levied, collected, and paid on each and every
nonenumerated article which bears a similitude, either in material,
quality, texture, or the use to which it may be applied, to any
article enumerated in this title as chargeable with duty, the same
rate of duty which is levied and charged on the enumerated article
which it most resembles in any of the particulars before
mentioned."
It was contended by the defendant that the goods in question,
composed of cow or calf hair and cotton, were a nonenumerated
article, and that they bore a similitude, in the particulars
mentioned in § 2499, to articles enumerated as chargeable with duty
under the following provision of Schedule L of § 2504, p. 471, 2d
ed., namely:
"Flannels, blankets, hats of wool, knit goods, balmorals, woolen
and worsted yarns, and all manufactures of every description
composed wholly or in part of worsted, the hair of the alpaca goat,
or other like animals, except such as are composed in part of wool,
not otherwise provided for, valued at not exceeding forty cents per
pound, twenty cents per pound; valued at
Page 127 U. S. 367
above forty cents per pound, and not exceeding sixty cents per
pound, thirty cents per pound; valued at above sixty cents per
pound, and not exceeding eighty cents per pound, forty cents per
pound; valued at above eighty cents per pound, fifty cents per
pound; and, in addition thereto, upon all the above-named articles,
thirty-five percentum
ad valorem."
It was sought to be shown by the defendant that the goods
imported in this case bore a similitude, in some one of the
particulars mentioned in § 2499, to goods which had previously been
in the market of two classes -- one composed of wool, hair, and
cotton, and the other composed of goat's hair and cotton --
although it appeared distinctly that the goods involved in 12 of
the cases in question cost under 40 cents a pound, and in this
view, such of them as bore a similitude to the goat's hair and
cotton goods would have been dutiable at only 20 cents per pound
and 35 percent
ad valorem, instead of 50 cents per pound
and 35 percent
ad valorem, and that the goods in the
remaining case cost over 40 and under 60 cents a pound and so would
have been liable to a duty of only 30 cents per pound and 35
percent
ad valorem, instead of 50 cents per pound and 35
percent
ad valorem.
The witnesses on the issue thus raised were all introduced on
the part of the defendant. When both parties had rested, the
counsel for the defendant moved the court to direct a verdict for
the defendant on the ground that the evidence was clear and
undisputed as to the two classes of prior goods -- namely the wool,
hair, and cotton goods and the goat's hair and cotton goods -- that
those goods existed, and substantially resembled in every important
particular the imported goods in question. The court granted the
motion, and directed a verdict in favor of the defendant. The
plaintiffs excepted, and have brought a writ of error to review the
judgment.
The plaintiffs objected and excepted to the introduction of the
testimony as to similitude offered by the defendant on the ground
that it was incompetent, irrelevant, and immaterial, and on the
further ground that the defendant, having based his assessment on
the view that the goods contained wool, could not now be permitted
to justify the assessment on any
Page 127 U. S. 368
other ground. But we think that this objection was properly
overruled. The suit was brought for an illegal exaction of duties,
and, if the law in force at the time, properly interpreted,
justified the exaction of the duties imposed, it was competent for
the defendant to show it at the trial. The complaint alleges that
the defendant, as collector, exacted as duties so much money; that
the true duty was only so much, and that the plaintiffs claim to
recover the difference. The answer alleges that the amount of money
collected from the plaintiffs was the amount due from them to the
United States, according to the rate of duty imposed by law upon
the goods in question. This did not confine the issue solely to the
question whether there was wool in the goods.
It appeared, in the course of the testimony put in by the
defendant, that two of the three samples of the prior goods
introduced by him in evidence cost over 80 cents a pound, the
goat's hair in them being that of the mohair goat, as was also the
goat's hair in the third sample, and that the mohair fiber came
from the alpaca goat, and was sometimes a foot in length, but
generally from six to seven inches long, while calf hair was always
short, perhaps an inch or an inch and a quarter long. It also
appeared by the testimony that the mohair goods were almost
uniformly much finer in appearance than the calf or cow hair and
cotton goods; that the cost of them was much higher, and that the
plaintiffs' goods resembled certain vegetable fiber goods imported
prior to 1875 and 1876, more nearly than they resembled the goat's
hair and cotton goods, or the mohair and cotton goods.
The direction of a verdict for the defendant in the present case
is sought to be justified by the ruling of this Court in
Arthur
v. Fox, 108 U. S. 125. In
that case, the article in question was called "velours," and was
composed of cow or calf hair, vegetable fiber, and cotton, was an
imitation of seal skin, and was used for manufacturing hats and
caps. The goods were not specifically enumerated in the statute,
but, in the use to which they were put and in appearance and
material, resembled manufactures of goat's hair and cotton more
nearly than any other article of commerce, the goods of both
Page 127 U. S. 369
kinds being frequently commercially called "seals," and being
made to represent seal skin, and being used for the purposes for
which seal skin was used. The component material of chief value in
"velours" was cow and calf hair, and not cotton. The importers
claimed that the goods were dutiable at 35 percent
ad
valorem under Schedule A of § 2504, as manufactures of cotton,
while the collector exacted a duty of 50 cents per pound and 35
percent
ad valorem on account of the similitude the goods
bore to manufactures composed wholly or in part of the hair of the
goat, without wool, under § 2499, and the provision of Schedule L
of § 2504, in regard to manufactures composed wholly or in part of
the hair of the goat and containing no wool. Inasmuch as the
collector in that case imposed a duty of 50 cents per pound and 35
percent
ad valorem, the goods must have been valued at
above 80 cents per pound, according to the terms of that clause of
Schedule L. The court instructed the jury to find for the
importers, and this Court held that the instruction was erroneous.
The view taken here was that the goods were nonenumerated, but were
substantially like a manufacture of goat's hair and cotton, which
was enumerated in the clause quoted from Schedule L. One strong
ground for the ruling made by this Court is thus stated in its
opinion, delivered by CHIEF JUSTICE WAITE. Speaking of the goods
imported in that case, it said:
"They are made of cotton and cow hair, and are evidently of
equal quality with the manufactures of cotton and goat's hair
because in this case they are charged with a duty of fifty cents
per pound, thus indicating a value of eighty cents a pound or over,
which calls for the highest duty per pound put on the goat's hair
goods."
In the present case, the samples of goat's hair goods introduced
by the defendant as the standard of comparison, to make out the
similitude spoken of in § 2499, were all of them mohair goods, two
of which samples were worth over 80 cents a pound, and thus
subject, under Schedule L, to the rate of duty imposed in the
present case upon the goods of the plaintiffs, while it was proved
that the plaintiffs' goods in twelve of the cases cost under 40
cents a pound, and in the remaining
Page 127 U. S. 370
case cost over 40 and under 60 cents a pound. Thus, as a matter
of law, in the present case, the plaintiffs' goods, of such
inferior value and material, were compared with costly mohair
goods, and the duty assessed on them was held to have been properly
charged.
We are of opinion that the question of the similitude was one of
fact, which should have been submitted to the jury, under proper
instructions. As there was error in the particular mentioned, we do
not deem it proper to consider any of the other questions raised
and discussed by counsel.
The judgment is reversed, and the case is remanded to the
circuit court with a direction to award a new trial.