Under the Act of March 3, 1883, c. 121, § 6, bichromate of soda
is subject to the duty of twenty-five percent
ad valorem,
imposed by Schedule A upon "all chemical compounds and salts, by
whatever name known," and is not subject, by virtue of the
similitude clause, to the duty of three cents per pound imposed by
that schedule on bichromate of potash.
Page 139 U. S. 625
This was an action by importers against a former collector of
the port of New York to recover back duties of three cents a pound,
exacted by the defendant in 1885, and paid by the plaintiffs under
protest, on thirty casks of bichromate of soda, weighing 17,227
pounds, and valued at 3,325 marks.
The provisions of the Act of March 3, 1883, c. 121, § 6, relied
on by either party, were as follows:
"SEC. 2499. 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 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 the component material of
chief value may be chargeable."
"SEC. 2502. There shall be levied, collected and paid upon all
articles imported from foreign countries and mentioned in the
schedules herein contained the rates of duty which are by the
schedules respectively prescribed, namely:"
"
SCHEDULE A -- CHEMICAL PRODUCTS"
"Bichromate of potash, three cents per pound."
"All preparations known as essential oils, expressed oils,
distilled oils, rendered oils, alkalies, alkaloids, and all
combinations of any of the foregoing, and all chemical compounds
and salts, by whatever name known, and not specially enumerated or
provided for in this act, twenty-five percentum
ad
valorem."
22 Stat. 491, 493, 494.
At the trial, it appeared that bichromate of soda was a chemical
salt composed of chromic acid and sodium, which, though long known
to chemists, had come into commercial use
Page 139 U. S. 626
since 1883; that it resembled in appearance bichromate of
potash, which was composed of chromic acid and potassium, and that
both were used to produce chrome yellow and other colors, although
bichromate of soda was less soluble and less valuable for producing
some colors than bichromate of potash.
The plaintiffs in their protest and at the trial insisted that
bichromate of soda was a chemical compound and salt "not specially
enumerated or provided for in this act" within the meaning of
Schedule A, and was therefore dutiable under that schedule at
twenty-five percent
ad valorem, and requested the judge to
direct a verdict in their favor.
But the judge ruled, in accordance with the decision of the
collector, that bichromate of soda was subject to a duty of three
cents a pound under § 2499, as a "nonenumerated article," which
bore a similitude, in the use to which it was applied, to
bichromate of potash; declined to submit the question of similitude
to the jury, and directed a verdict for the defendant. 29 F. 684.
The plaintiff alleged exceptions, and sued out this writ of
error.
MR. JUSTICE GRAY, after stating the facts as above, delivered
the opinion of the Court.
The ruling below was in accordance with decisions in other
circuits.
Biddle v. Hartranft, 29 F. 90;
Lloyd v.
McWilliams, 31 F. 261. But it appears to us to have proceeded
upon an erroneous view of the statute as applied to the case before
the court. The general scope of the similitude clause in the
customs acts is defined in a recent judgment of this Court,
delivered by MR. JUSTICE FIELD, as follows:
"To place articles among those designated as enumerated, it is
not necessary that they should be specifically mentioned. It is
sufficient that they are
Page 139 U. S. 627
designated in any way to distinguish them from other articles.
Thus, the words 'manufactures of which steel is a component part'
and 'manufactures of which glass is a component part' have been
held sufficient designation to render the goods enumerated articles
under the statute, and take them out of the similitude clause.
Arthur v. Sussfield, 96 U. S. 128. Upon the same
principle, 'manufactures of hair' must be held a sufficient
designation to place such manufactures among the enumerated
articles."
Arthur v. Butterfield, 125 U. S.
70,
125 U. S. 76-77.
So the description "manufactures composed wholly of cotton," or
even "manufactures of cotton," has been held to be a sufficient
enumeration.
Stuart v.
Maxwell, 16 How. 150;
Fisk v. Arthur,
103 U. S. 431.
See also Hartranft v. Meyer, 135 U.
S. 237.
In the customs act of 1883, Schedule A, entitled "Chemical
Products," besides defining the duties on more than a hundred kinds
of such products, makes the duty on "all chemical compounds and
salts, by whatever name known, and not specially enumerated or
provided for in this act, twenty-five percentum
ad
valorem." The designation "all chemical compounds and salts,
by whatever name known" includes all chemical compounds and
chemical salts, used then or thereafter in any science or art, as
clearly as if the proper names of each and all of them had been
given. Bichromate of soda, being undoubtedly a chemical compound
and a chemical salt, is within the very words of the schedule, and
cannot therefore be treated as a nonenumerated article within the
similitude clause. The manifest intent of Congress was that every
kind of chemical compound and of chemical salt, by whatever name
known, should have a fixed rate of duty, to be ascertained quickly
and easily by the schedule of chemical products, without entering
upon a comparison, under the similitude clause, of "material,
quality, texture, or the use to which it may be applied," which,
though affording a convenient and valuable test as applied to many
articles of manufacture, would often be found difficult of
application to chemical products, without such scientific knowledge
and investigation as could not be expected of custom-house
officers.
Page 139 U. S. 628
It was argued for the United States that this conclusion would
be inconsistent with the decisions in
Stuart v.
Maxwell, 16 How. 150, and in
Arthur v.
Fox, 108 U. S. 125. But
we cannot perceive any such inconsistency. In neither of those
cases was there any question between the similitude clause and a
clause specially enumerating, describing, or designating a
particular class of goods. In
Stuart v. Maxwell, the
question was between the similitude clause and a general clause
covering "all goods, wares, and merchandise, imported from foreign
countries, and not specially provided for in this act." Act July
30, 1846, c. 74, § 3, 9 Stat. 43. In
Arthur v. Fox, the
question was between successive sentences of the similitude clause
itself, as applied to an article admitted not to be enumerated.
Judgment reversed, and case remanded, with directions to set
aside the verdict and to take further proceedings in conformity
with this opinion.