In construing tariff acts, an article may be held to be
enumerated, although not specifically mentioned, if it be
designated in a way to distinguish it from other articles.
Arthur v. Butterfield, 125
U. S. 170, and
Mason v. Robertson, 139 U.
S. 624, cited and approved.
The meaning of the term "article," when used in a tariff act,
considered.
Dental rubber imported into the United States in 1885 was
subject to a duty of 25 percent
ad valorem as an article
composed of India rubber not specially enumerated.
This was an action to recover an alleged excess of duties
exacted upon importations of dental rubber into the port of New
York in 1885.
The duty was assessed under the paragraph of Schedule N of
section 2502 of the Revised Statutes, as reenacted by the Act of
March 3, 1883, which reads: "Articles composed of India rubber, not
specially enumerated or provided for in this act, twenty-five
percentum
ad valorem." 22 Stat. 513, c. 121.
The substance of the protests is stated in the record as
follows:
"Upon certain 'India rubber in sheets,' claiming said goods to
be entitled to free entry under the provisions in the free list for
'India rubber' crude (Act March 3, 1883), or second, if deemed not
crude, it is nevertheless not a manufactured 'article of rubber' in
the meaning of the law, but is entitled to free entry under the
proviso of sec. 2499 of said act as crude; or, third at no more
than 20%
ad val., as a partially manufactured,
nonenumerated article under sec. 2513, Act March 3, 1883, (see sec.
23, Act March 2, 1861, as to rubber in sheets), and not at 25%
ad val., as charged by you."
The proviso of section 2499, and section 2513, thus referred to,
are:
Page 146 U. S. 234
"
Provided that nonenumerated articles, similar in
material and quality and texture and the use to which they may be
applied to articles on the free list, and in the manufacture of
which no dutiable materials are used, shall be free."
22 Stat. 491.
"SEC. 2513. There shall be levied, collected, and paid on the
importation of all raw or unmanufactured articles, not herein
enumerated or provided for, a duty of ten percentum
ad
valorem, and all articles manufactured, in whole or in part,
not herein enumerated or provided for, a duty of twenty percentum
ad valorem."
22 Stat. 523.
Section 23 of the Act of March 2, 1861, 12 Stat. 195, c. 68, the
free list, contains this item: "India rubber, in bottles, slabs, or
sheets, unmanufactured."
The paragraph of Schedule N of section 2502 of the Act of March
3, 1883, under which the collector proceeded, is one of three,
reading as follows:
"India rubber fabrics, composed wholly or in part of India
rubber, not specially enumerated or provided for in this act,
thirty percentum
ad valorem."
"Articles composed of India rubber, not specially enumerated or
provided for in this act, twenty-five percentum
ad
valorem."
"India rubber boots and shoes, twenty-five percentum
ad
valorem."
In the free list (section 2503) is to be found: "India rubber,
crude, and milk of."
Upon the trial, various exhibits of crude rubber, washed rubber,
dental rubber, and dental plates were put in evidence, and the
proofs established that these importations were dental rubber,
which was commercially so known, and fit for dental purposes
only.
It further appeared that dental rubber was crude rubber put
through a masticator, by which it was torn up and shredded into a
state of pulp, sulphur and coloring matter added, and the mass
rolled into sheets, cut into proper sizes, and backed with linen to
prevent the pieces from sticking together; that the heat of the
mill or masticator was not a vulcanizing heat,
Page 146 U. S. 235
but sufficient to render the rubber elastic. The circuit court,
Lacombe J., refused to direct the jury to find for the plaintiff,
but, on the contrary, directed a verdict for the defendant. There
were a verdict and judgment accordingly, and plaintiff sued out
this writ of error. The opinion of Judge Lacombe will be found in
37 F. 197.
Page 146 U. S. 238
MR. CHIEF JUSTICE FULLER, after stating the facts in the
foregoing language, delivered the opinion of the Court.
In
Arthur v. Butterfield, 125 U. S.
70,
125 U. S. 76, it
was said by MR. JUSTICE FIELD, speaking for the Court:
"To place articles among those designated as 'enumerated,' it is
not necessary that they should be specifically mentioned. It is
sufficient that they are designated in any way to distinguish them
from other articles."
And this language was quoted with approval, as defining the
general scope of the similitude clause in the customs acts, in
Mason v. Robertson, 139 U. S. 624,
139 U. S. 627,
in which it was held that bichromate of soda was subject to the
duty of twenty-five percentum
ad valorem, imposed under
the Act of March 3, 1883, c. 121, upon "all chemical compounds and
salts, by whatever name known," and not subject, by virtue of the
similitude clause, to the duty of three cents per pound imposed on
bichromate of potash.
If these importations should be held as enumerated within the
rule thus laid down, then sections 2499 and 2513 have no
application, and this is no more than to inquire whether they came
within the paragraph prescribing the tax on "articles composed of
India rubber."
In common usage, "article" is applied to almost every separate
substance or material, whether as a member of a class or as a
particular substance or commodity.
The learned circuit judge was of opinion that the word
"articles" was used in this paragraph in a broad sense, and covered
equally things manufactured, things unmanufactured, and things
partially manufactured, and he sustained this view by reference to
the use of the word elsewhere in the statute. Thus, in section
2500, relating to reimportations, they are referred to as "articles
once exported, of the growth, product, or manufacture of the United
States." Section 2502 commences:
"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,"
etc. Section 2503 reads: "The following articles, when imported,
shall be exempt from duty," and then follows the free list,
including
Page 146 U. S. 239
"articles imported for the use of the United States" and
"articles, the growth, produce, and manufacture of the United
States." We agree with the circuit court that the word must be
taken comprehensively, and cannot be restricted to articles put in
condition for final use, but embraces as well things manufactured
only in part, or not at all.
But it is said that this dental rubber is not "composed of India
rubber" within the intent and meaning of the statute, because of
the admixture of sulphur and coloring matter, or, in other words,
that it is not wholly so composed. The prior tariff act, in section
2504 of the Revised Statutes (Rev.Stat. 477), contained the same
paragraph as that under consideration, except that it read
"articles composed wholly of India rubber." The preceding paragraph
related to "braces, suspenders, webbing, or other fabrics, composed
wholly or in part of India rubber." The act of 1883 retained the
words "wholly or in part," as applied to fabrics, but omitted the
word "wholly" in connection with articles. It is not to be doubted
that this omission was advisedly made. The manifest intention was
that articles of India rubber should not escape the prescribed
taxation because of having been subjected to treatment fitting them
for a particular use but not changing their essential
character.
Such is the fact with the article in question. It has not lost
its identity by a chemical change, and become a new and different
species. It is not crude rubber, nor milk of rubber, nor is it a
fabric of rubber, but it is rubber rendered elastic and more
attractive by coloring.
Nor are we impressed with the argument that, being rubber
itself, it must be regarded as a material, and not an article
composed of rubber, for its adaptation to dental purposes has
differentiated it commercially. Washing and scouring wool do not
make the resulting wool a manufacture of wool; cleaning and ginning
cotton do not make the resulting cotton a manufacture of cotton;
but sulphur and coloring matter, when applied as here, make the
resulting rubber, while still remaining rubber, an article of
rubber, as contradistinguished from rubber crude, or rubber merely
cleansed of impurities.
Judgment affirmed.
