Philosophical apparatus and instruments, as referred to in
Schedule N of the Tariff Act of March 3, 1883, 22 Stat. c. 121,
513, are such as are more commonly used for the purpose of making
observations and discoveries in nature, and experiments for
developing and exhibiting natural forces, and the conditions under
which they can be called into activity, while implements for
mechanical or professional use in the arts are such as are more
usually employed in the trades and professions for performing the
operations incidental thereto.
Page 137 U. S. 437
Duties were assessed at 45 percent
ad valorem and
collected on a variety of articles imported into New York, it being
claimed that they were manufactures not specially enumerated under
Schedule N of the Act of March 3, 1853, 22 Stat. c. 121, 501. The
importer brought suit to recover an alleged excess of duties,
claiming that they should have been assessed at 35 percent under
Schedule N as philosophical apparatus and instruments. At the
trial, a scientific expert was examined as a witness. The court and
jury, with the exception of this evidence, had nothing before them
to rely upon except the common knowledge which all intelligent
persons possess. As a result, the court directed the jury (1) to
render a verdict for the defendant as to a specified class of the
articles, (2) to render a verdict for the plaintiff as to another
specified class, and (3) as to the remainder, it left the jury to
determine their classification, and they found for the plaintiff as
to a part and for the defendant as to a part.
Held that
there was no error in these instructions.
This was an action against the collector of the port of New York
to recover back duties alleged to have been illegally exacted. Upon
the trial, there was a verdict for the plaintiff as to a part of
the sum demanded and for the defendant as to the residue thereof,
and judgment was entered on this verdict. Each party sued out a
writ of error. The case is stated in the opinion.
MR. JUSTICE BRADLEY delivered the opinion of the Court.
This is an action brought to recover an alleged excess of duties
charged for the importation of certain goods and chattels in the
year 1884. The goods consisted of certain instruments used in the
arts, or in laboratories, or for observation and experiment. The
plaintiff, Oelschlaeger, who imported the articles, claimed that
they were philosophical instruments and apparatus, and chargeable
with a duty of only 35 percent
ad valorem under Schedule N
of the Act of March 3, 1883, clause following, to-wit:
"Philosophical apparatus and instruments, thirty-five percentum
ad valorem." 22 Stat. 513, c.
Page 137 U. S. 438
121. The defendant, on the other hand, then collector at the
port of New York, contended that the goods in question came under
the head of the following clause at the end of Schedule C, in the
same act, to-wit:
"Manufactures, articles, or wares, not specially enumerated or
provided for in this act, composed wholly or in part of iron,
steel, copper, lead, nickel, pewter, tin, zinc, gold, silver,
platinum, or any other metal, and whether partly or wholly
manufactured, forty-five percentum
ad valorem."
22 Stat. 501, c. 121.
The question is whether the court below, on the trial of the
cause, committed any error in its rulings and instructions as to
what implements were and what were not embraced in the category of
philosophical apparatus and instruments. There is undoubtedly a
clear distinction between mechanical implements and philosophical
instruments or apparatus, and whatever belonged to the former class
was properly chargeable with 45 percent
ad valorem, and
whatever belonged to the latter case with only 35 percent.
It is somewhat difficult in practice to draw the line of
distinction between the two classes, inasmuch as many instruments
originally used only for the purpose of observation and experiment
have since come to be used, partially or wholly, as implements in
the arts, and on the other hand many implements merely mechanical
are constantly used as aids in carrying on observations and
experiments of a philosophical character. The most that can be
done, therefore, is to distinguish between those implements which
are more especially used in making observations, experiments, and
discoveries, and those which are more especially used in the arts
and professions. For example, an astronomical telescope, a compound
microscope, a Rhumkorf coil would be readily classed as
philosophical instruments or apparatus, while the instruments
commonly used by surgeons, physicians, surveyors, and navigators
for the purpose of carrying on their several professions and
callings would be classed among mechanical implements, or
instruments for practical use in the arts and professions. In
short, philosophical apparatus and instruments are such as are more
commonly used for the purpose of making observations
Page 137 U. S. 439
and discoveries in nature, and experiments for developing and
exhibiting natural forces and the conditions under which they can
be called into activity, while implements for mechanical or
professional use in the arts are such as are more usually employed
in the trades and professions for performing the operations
incidental thereto.
The different kinds of articles which were the subject of
inquiry on the trial were over forty in number. A specimen of each
kind was produced in evidence, and marked as an exhibit, as
follows, to-wit:
Ex. 1, large compound microscope
Ex. 1 1/2, prepared slides for Exhibit 1.
Ex. 2, small microscope for examining textile fabrics.
Ex. 3, jeweler's magnifying glass.
Ex. 4, astronomical telescope on tripod.
Ex. 5, single-barreled telescope or marine glass.
Ex. 6, double barreled field-glass.
Ex. 7, opera-glass.
Ex. 8, small telescope on tripod.
Ex. 9, magnifying glass with handle.
Ex. 10, plano-convex lens, unmounted.
Ex. 11, reflecting mirror used in old telescopes.
Ex. 12, ophthalmoscope.
Ex. 13, combination of magnifying glass and stereoscope.
Ex. 14, oculist's outfit.
Ex. 15, stereopticon, or magic lantern.
Ex. 16, slides prepared for Exhibit 15.
Ex. 17, dentist's speculum.
Ex. 18, Grenet battery.
Ex. 19, pocket battery for physician.
Ex. 20, inductive Rhumkorf coil.
Ex. 21, galvanometer.
Ex. 22, Geissler tube.
Ex. 23, not put in evidence.
Ex. 24, anemometer.
Ex. 25, hygrometer.
Ex. 26, hygrometer.
Page 137 U. S. 440
Ex. 27, thermometer.
Ex. 28, thermometer.
Ex. 29, thermometer, minimum.
Ex. 30, maximum and minimum thermometer.
Ex. 31, thermometer (bric-a-brac).
Ex. 32, dairy thermometer and hydrometer.
Ex. 33, laboratory thermometer.
Ex. 34, clinical thermometer.
Ex. 35, clinical thermometer.
Ex. 36, pocket thermometer,
Ex. 37, barometer.
Ex. 38, barometer.
Ex. 39, barometer.
Ex. 40, hydrometer for general purposes.
Ex. 41, alcoholometer.
Ex. 42, urinometer.
Ex. 43, radiometer.
Ex. 44, spectacle lenses.
A gentleman of scientific attainments was examined as a witness
for the purpose of explaining the specific uses to which these
various instruments are respectively applied, and his evidence was
all that the court or jury had before them on which to base a
decision except that common knowledge which all intelligent persons
possess, and of which the judge who tried the cause may in some
instances have taken judicial notice. As the result of the inquiry,
the judge directed the jury to render a verdict for the defendant
as to the articles designated as Exhibits 2, 3, 10, 12, 14, 17, 19,
27, 28, 29, 31, 32, 34, 35, 36, 41, 42, 44, which he held not to be
philosophical apparatus or instruments, and a verdict for the
plaintiff as to those designated as Exhibits 1, 1 1/2, 4, 11, 15,
16, 18, 20, 21, 22, 24, 25, 26, 30, 33, 37, 38, 39, 40, 43, which
he held to be philosophical apparatus or instruments. As to six of
the articles, represented by Exhibits 5, 6, 7, 8, 9, 13, he refused
to direct a verdict, and left the question of their classification
to the jury, who found for the plaintiff as to Exhibits 5, 6, 8,
and for the defendant as to Exhibits 7, 9, 13.
Page 137 U. S. 441
With regard to the last six items, which were left for decision
with the jury under the charge of the judge (which is not excepted
to), we do not think that the judge erred in thus disposing of
them. Each party requested him to direct a verdict in his favor. We
think he was justified in refusing these requests. As before
remarked, it is difficult to draw the line distinctly, and the
classification of the articles referred to, according to the
preponderance of use to which they are applied, depended upon a
fair consideration of the evidence, which was rightly referred to
the jury. No. 5 was a telescope, known as a "field-glass," which
the witness said was not constructed specially for astronomical
purposes, though it could be used for some of the stars; that it
was used, to gratify a laudable curiosity, a great deal by seamen.
No. 6 was testified to be of the same general character, though
smaller, and sometimes carried in a pouch. No. 8, the witness said,
was a magnifying glass, having a lens called the "Coddington Lens,"
commonly used for examining grain and minerals and things of that
sort, and by botanists and entomologists; that he, as a chemist and
scientist, had had occasion to use it. The judge, on this evidence,
might well hesitate to speak
ex cathedra on the character
of these instruments, and we cannot say that the jury did wrong in
classifying them as philosophical instruments. The same thing may
be said with regard to Exhibits 7, 9, and 13, which the jury found
not to be such instruments. No. 7 was an opera glass, No. 9 a
common magnifying glass with a handle, used for examining anything
which was desired to be magnified -- fine print, hand writing,
pictures, anything. No. 13 was a magnifying glass and stereoscope
for examining photographs or stereoscopic views such as are often
found on parlor tables. We also think that the judge committed no
error as to the character and classification of the other
instruments respecting which he directed the jury what verdict to
render. It is unnecessary to review the evidence in detail with
regard to each instrument. Suffice it to say that while there might
be some ground for question with regard to particular cases, yet on
the whole we think that the proper principle was followed,
Page 137 U. S. 442
and that no injustice was done to either party. To illustrate
our views we may take one or two instruments by way of example.
Thus, as to Exhibit 12, the witness testified as follows:
"Exhibit No. 12 is an ophthalmoscope. It is a practical
instrument used by oculists for examining the interior of the eye
and other parts of the body. The principle on which it works is as
follows: the light is reflected from a burner in front of the
examiner, who holds this object to his eye, into the eye of the
patient, without penetrating the observer's eye, as there is only a
very small hole through which it can enter, and in that way
protects the observer's eye from the direct rays of the light. It
is peculiarly adapted for physicians' and oculists' use. It may
have other uses, but the witness is not acquainted with them. It is
used in their profession for the purpose of enabling them to get at
the facts by which to treat either the throat or eye, as the case
may be, practically."
It is clear from this evidence that this instrument is intended
for practical use in the profession of an oculist. It is an
implement -- a tool -- not used for the discovery or contemplation
of natural objects for the purpose of attaining or communicating
general instruction, but as an implement for carrying on a
profession or an art.
Again, take Exhibit No. 20. The witness describes its use as
follows:
"Exhibit No. 20 is a Rhumkorf coil. This coil is constructed on
the following principle: around a central core of soft iron is
wound a certain number of turns of copper wire, each turn being
insulated by a layer of paper or some other insulating material;
then on top of this coarser wire is wound in the same direction a
large number of layers of very thin wire, each one likewise
insulated by a layer of paper or other insulating material, and the
fine wires connect with the two poles on top, and the coarser wires
connect with the lower, with the commutator running from one pole
to the other. This box is filled with what is called 'condenser.'
The condenser is a series or number of plates of tinfoil such as we
find wound around tobacco. That stores up electricity somewhat on
the principle
Page 137 U. S. 443
of a Leyden jar, and keeps it stored, so that when a person uses
it, he gets a much greater shock than he would if the condenser
were not there. That is used in schools and universities, and also
by physicians, and by people who merely use it for their own
amusement. It is used practically in colleges and universities to
illustrate electrical science, and also by everyone who has
occasion to generate that kind of electricity. It is also used to
explode mines at times, to explode dynamite cartridges, or anything
of that kind. It may be used in connection with a battery. It has
no practical use in telegraphing. Its main use is for illustrating
the laws of electrical induction."
It is plain from this description that the Rhumkorf coil is much
more used in the lecture room, and for the purpose of scientific
discovery than for practical use in any art or profession.
Considerable argument is employed by the counsel for both
parties to show that the judge was mistaken on the one side or the
other in his various directions, but it would prolong this opinion
to an unreasonable extent to examine all these discussions. We can
only refer to one or two and dispose of the rest in a general
way.
The counsel for the government contends, among other things,
that the judge erroneously classified Exhibit 15, which was a
stereopticon or magic lantern, as a philosophical instrument. He
says:
"The stereopticon or magic lantern does not appear to be of much
scientific use, and we doubt if one is ever purchased to be used
for a purely philosophical purpose. But the instrument is mostly
used in giving entertainment by throwing magnified pictures or
representations on a screen, or for displaying advertisements from
elevated points in the streets of cities, and is hardly
'philosophical' or 'scientific.'"
On the other hand, the witness, after describing the
construction of the instrument, says:
"This instrument is used for illustrating lectures and
instruction in colleges and universities, and for projecting
pictures of different subjects upon a wall. It is used in the
illustration of natural science. "
Page 137 U. S. 444
We think that in this instance the judge committed no error in
taking the view plainly suggested by the witness instead of
judicially relying on his own knowledge and experience.
In like manner, the counsel for the plaintiff strenuously
contends that the judge was wrong in not deciding that the minimum
thermometer (Exhibit 29) is a philosophical instrument. The witness
says it is filled with alcohol, and is used for measuring very low
temperatures -- temperatures below the freezing point of mercury.
It can be used where the mercury thermometer cannot be used. He
adds: "It is a scientific instrument, used for scientific
purposes." It is, however, in the same class with other
thermometers, which the judge, as we think correctly, regards as
instruments for daily use in the arts and in common life, and not
specially philosophical instruments.
But Exhibit No. 30, the maximum and minimum thermometer, which
is used for recording temperatures, one side for the day-time and
the other during the night, is of a different character, and, if
not entirely, is more particularly used to ascertain the exact
momentary variations of the temperature of the atmosphere for the
entire period of 24 hours. It is very properly classed among
philosophical instruments.
But it is unnecessary to pursue the examination. The general
principle of classification adopted by the judge at the trial was
correct, and we see no misapplication of it which should induce us
to reverse the judgment.
Judgment affirmed.