Old India rubber shoes, invoiced as "rubber scrap" and entered
as "scrap rubber" were exempt from duty under the similitude
clause, § 2499, of Title 33 of the Revised Statutes, as enacted by
§ 6 of the Act of March 3, 1883, 22 Stat. 491, as being
substantially crude rubber under § 2503, they laving lost their
commercial value as articles composed of India rubber or India
rubber fabrics or India rubber shoes.
The case is stated in the opinion.
MR. JUSTICE BLATCHFORD delivered the opinion of the Court.
This is an action at law, brought in the Court of Common Pleas,
No. 3, for the County of Philadelphia, in the State of
Pennsylvania, by the Jessup and Moore Paper Company against John
Cadwalader, Collector of Customs for the District
Page 149 U. S. 351
of Philadelphia, to recover an alleged excess of customs duties,
paid by the plaintiff under protest. The case was removed by the
defendant by certiorari into the Circuit Court of the United States
for the Eastern District of Pennsylvania. The amount claimed was
$236.25. The invoice in the case was of twenty-two bales of old
"rubber scrap." They were entered as "scrap rubber," and 25 percent
ad valorem was charged on the merchandise, under the
provision of Schedule N of § 2502 of the Act of March 3, 1883, c.
121, 22 Stat. 513, which imposed a duty of 25 percentum
ad
valorem on "articles composed of India rubber not specially
enumerated or provided for in this act."
Under the free list, § 2503 of the same act, under the head
"Sundries," the following articles, when imported, were made exempt
from duty: "India rubber, crude, and milk of." Section 2499 of
title 33 of the Revised Statutes was made, by § 6 of the same act,
22 Stat. 491, to read, after July 1, 1883, 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
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. If two or more rates of duty should be applicable to
any imported article, it shall be classified for duty under the
highest of such rates,
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. "
Page 149 U. S. 352
The articles imported were old India rubber shoes, purchased by
manufacturers of India rubber articles, to be ground into a powder,
subjected to a blowing process to extract fibers of the lining, or
to a high temperature to eliminate as much of the sulphur as
possible, and then sheeted out, and manipulated in the same manner
and for the same purposes as crude rubber, the material being only
equal in value to a medium grade of crude rubber.
It was contended by the importer that these old shoes, invoiced
as "rubber scrap," and entered as "scrap rubber," were free, as
being substantially crude rubber, on the ground that the evidence
showed that they were nonenumerated articles, and were similar in
material and quality and texture, and the use to which they were
applied, within the meaning of § 2499, to crude rubber, and were
therefore exempt from duty. The importer duly filed a protest
against the exaction of the duty, and appealed to the Secretary of
the Treasury, who affirmed the decision of the collector.
The case was tried before the circuit court and a jury, and
evidence was given on both sides. At the close of the testimony,
the plaintiff requested the court to charge the jury as
follows:
"1. Articles composed of India rubber, within the meaning of the
existing tariff laws (sec. 2502, Schedule N) are articles prepared
or manufactured from India rubber, of which the preparation or
manufacture constitutes some portion of their commercial value. If
therefore you find that the commercial value possessed by the old
rubber shoes upon which the plaintiffs in this case allege that the
duty in this instance was improperly imposed was due solely to the
rubber they contained, and not to the preparation or manufacture
which they had undergone, they were not 'articles composed of
rubber' within the meaning of the tariff laws as at present in
force."
The court affirmed that proposition, and the defendant
excepted.
The plaintiff also requested the court to charge the jury as
follows:
"2. If you find that the 'old rubber shoes' in question in this
suit were not composed of India rubber within the meaning of the
tariff law, and if you find that said 'old rubber
Page 149 U. S. 353
shoes' were similar in material, quality, texture, and the use
to which they can be applied to crude rubber, your verdict must be
for the plaintiffs."
The court affirmed that proposition, and the defendant
excepted.
The plaintiff also requested the court to charge the jury as
follows: "3. Under all the evidence, your verdict must be for the
plaintiffs." The court affirmed that proposition, and the defendant
excepted.
The defendant requested the court to charge the jury as
follows:
"1. If you believe that the importation in suit is composed of
India rubber not specially enumerated or provided for in the Act of
March 3, 1883, your verdict should be for the defendant."
"2. If you believe that the importation in suit bears a
similitude in material, quality, texture, or the use to which it
may be applied, to an article composed of India rubber, then your
verdict should be for the defendant."
"3. Even if the importation in suit be used for the purpose of
reclaiming, by chemical process, the rubber contained therein, yet
if the product is inferior in material, quality, and texture to
crude rubber, then it is not such a similitude to crude rubber as
it is necessary under section 2499 for the plaintiff to prove to
entitle him to recover, and your verdict should be for the
defendant."
"4. Your verdict in this case should be for the defendant."
The court refused each request, and the defendant excepted to
each refusal.
The court said to the jury that if the plaintiff's first point
was sound, the plaintiff was entitled to recover; that the court
would instruct the jury
pro forma, for the purpose of
enabling them to find a verdict; that the law was correct as stated
in the plaintiff's first point, and the plaintiff was entitled to
recover, but that the court reserved the right to enter a verdict
for the defendant if it should be found that the law was not
correctly stated in the plaintiff's first point. The court further
said to the jury:
"This action turns altogether upon a question of law on the
constructions which are given to the act of Congress, and as we
wish to give further time to the consideration of this question and
to have argument before the full bench upon the subject, I instruct
you that the
Page 149 U. S. 354
law, as stated in plaintiff's first point, is a correct
statement of the law, and in that view, under the facts here, the
plaintiff is entitled to a verdict for the amount of duty exacted
in excess of what should have been charged. This will be subject to
consideration by the court hereafter, and the court reserves the
right to enter a verdict for the defendant in case it should be
satisfied that the law is not as stated in this point."
The jury rendered a verdict in favor of the plaintiff for
$255.72.
Subsequently the defendant moved the court to grant judgment in
his favor
non obstante veredicto. The case was argued, the
motion was denied, and judgment was entered in favor of the
plaintiff for the amount of the verdict. The defendant has brought
a writ of error, but we are not furnished with any brief in its
support.
The uncontradicted testimony is to the effect that the only
commercial use or value of the old India rubber shoes, or scrap
rubber, or rubber scrap in question is by reason of the India
rubber contained therein, as a substitute for crude rubber; that
the old shoes were of commercial use and value only by reason of
the India rubber they contained, as a substitute for crude rubber
and not by reason of any preparation or manufacture which they had
undergone; that they could not fairly be called "articles composed
of India rubber," and as such dutiable at 25 percentum
ad
valorem, and that although the shoes may have been originally
manufactured articles composed of India rubber, they had lost their
commercial value as such articles, and substantially were merely
the material called "crude rubber." They were not India rubber
fabrics or India rubber shoes, because they had lost substantially
their commercial value as such.
Meyer v. Arthur,
91 U. S. 570;
Worthington v. Robbins, 139 U. S. 337,
139 U. S. 341;
American Net & Twine Co. v. Worthington, 141 U.
S. 468;
Junge v. Hedden, 146 U.
S. 233, 237 [argument of counsel -- omitted].
Under the Act of October 1, 1890, c. 1244, 26 Stat. 607,
paragraph 613, the following articles are made exempt from duty:
"India rubber, crude and milk of, and old scrap or refuse India
rubber, which has been worn out by use, and is fit only for
remanufacture." The proper description of the importation
Page 149 U. S. 355
in question in this case is that it is "old scrap or refuse
India rubber, which has been worn out by use and is fit only for
remanufacture."
The decision below was correct, and the judgment is
Affirmed.