In construing a tariff act, when it is claimed that the
commercial use of a word or phrase in it differs from the ordinary
signification of such word or phrase, in order that the former
prevail over the latter, it must appear that the commercial
designation is the result of established usage in commerce and
trade, and that, at the date of the passage of the act, that usage
was definite, uniform, and general, and not partial, local, or
This was an action to recover duties paid under protest. The
bill of exceptions, omitting formal parts, was as follows:
"The plaintiff imported, in the year 1886, into the port of New
York, certain goods consisting of mugs, plates, cups, and saucers,
made of china, of small size, and claimed by him to be dutiable as
toys. Duty was assessed by the defendant, and paid by the plaintiff
at the rate of sixty percent ad valorem,
Page 152 U. S. 369
under protest as follows:"
"Against your decision and assessment of duties as made by you,
and the payment of more than 35% ad valorem
importations below mentioned, consisting of certain china toys,
claiming that under existing laws, and particularly by Sch. 'N,'
Act March 3, 1883, as toys said goods are liable at no more than
35% ad valorem,
and not at 60% ad valorem,
charged by you."
"Due appeal was made, and suit was brought in due time."
"Plaintiff further introduced evidence tending to show that the
articles in question were in fact toys, and in addition that they
were known in trade and commerce in March, 1883, and prior thereto,
as toys, and were bought and sold under the denomination of toy
plates, toy teas, and toy cans."
"In behalf of the defendant, evidence was introduced tending to
show that these articles were not handled by toy houses, but that
they were bought and sold under the name of A B C plates, A B C
mugs, A B C cans, and the cups and saucers were known as Minton
teas or after-dinner coffees, and were also used in restaurants to
serve coffee in, and that they were used by children to eat and
drink out of, and not merely for the purpose of amusement."
"The court, at the conclusion of the evidence, submitted the
question to the jury as follows:"
" You are to answer the question by yes or no whether these
goods are or are not toys. You have heard the evidence, and all
that is necessary for me to do in leaving the case in your hands is
to give you the definition of the word toy: 'A toy is a plaything;
a thing the main use or purpose of which is the amusement of
children.' Bearing that definition in mind, and as instructed by
the evidence, you will determine as to these articles whether they
are or are not toys."
"Thereupon counsel for plaintiff requested the court to charge
that if these articles were known as toys in trade and commerce in
March, 1883, and prior thereto, the plaintiff is entitled to
recover, which request the court refused so to charge, and
plaintiff's counsel duly excepted, and the exception was duly
The record states that
"after hearing the
Page 152 U. S. 370
evidence for the respective parties and the argument of counsel,
the jury say that they find the goods in suit are not toys, and, by
direction of the court, that they find a verdict for the
Judgment was thereupon entered on the verdict in favor of the
defendant, with costs, and this writ of error taken out.
MR. CHIEF JUSTICE FULLER, after stating the facts in the
foregoing language, delivered the opinion of the court.
Plaintiff contended that the articles in question should have
been assessed under the clause in Schedule N in the tariff Act of
March 3, 1883, c. 121, "Dolls and toys, thirty-five percentum
" but the collector assessed them under
Schedule B of that act, imposing a duty on
"china, porcelain, parian, and bisque, earthen, stone and
crockery ware, including plaques, ornaments, charms, vases, and
statuettes, painted, printed, or gilded, or otherwise decorated or
ornamented in any manner, sixty percentum ad valorem.
22 Stat. 495, 512.
After giving the ordinary definition of the word "toy," the
court left to the jury the question whether these goods were or
were not toys. No exception was reserved to this part of the
charge, nor to the action of the court in that regard. The evidence
on behalf of the plaintiff tended to show that the articles were in
fact toys, and on behalf of the defendant that they were "used in
restaurants to serve coffee in, and that they were used by children
to eat and drink out of, and not merely for the purpose of
amusement," but the plaintiff, in addition to the contention that
they were in fact toys, attempted to establish that such was their
commercial designation. Accordingly, he offered evidence tending to
show that "they were known in trade and commerce in March, 1883,
and prior thereto, as toys, and were bought and sold under the
denomination of toy plates, toy teas, and toy cans," while
defendant's evidence tended to show
"that these articles were not handled by toy houses, but that
they were bought and sold under the name of A B C plates, A B C
mugs, A B C
Page 152 U. S. 371
cans, and the cups and saucers were known as Minton teas or
Plaintiff requested the court to charge "that if these articles
were known as toys in trade and commerce in March, 1883, and prior
thereto, the plaintiff is entitled to recover." The court refused
so to charge, and this refusal is the subject of the only exception
in the record.
In Cadwalader v. Zeh, 151 U. S. 171
151 U. S. 176
it was said that
"it has long been a settled rule of interpretation of the
statutes imposing duties on imports that, if words used therein to
designate particular kinds or classes of goods have a well known
signification in our trade and commerce different from their
ordinary meaning among the people, the commercial meaning is to
prevail unless Congress has clearly manifested a contrary
intention, and that it is only when no commercial meaning is called
for or proved that the common meaning of the words is to be
But it is also true that, as observed by Mr. Chief Justice Waite
in Swan v. Arthur, 103 U. S. 597
103 U. S.
"while tariff acts are generally to be construed according to
the commercial understanding of the terms employed, language will
be presumed to have the same meaning in commerce that it has in
ordinary use unless the contrary is shown."
The inquiry was whether, in a commercial sense, the articles
were so known, trafficked in, and used under the denomination of
toys, that Congress, in the use of the particular word, should be
presumed to have had that designation in mind as covering such
Necessarily the commercial designation in the result of
established usage in commerce and trade, and such usage, to affect
a general enactment, must be definite, uniform, and general, and
not partial, local, or personal.
The sole instruction requested by plaintiff was that he was
entitled to recover if these articles were known as toys in trade
and commerce at the time of the passage of the act and prior
thereto. The prevalence of the usage related to the date of the
act, and although, if a special meaning were attached to certain
words in a prior tariff act, it would be presumed
Page 152 U. S. 372
that Congress intended that they should have the same
signification when used in a subsequent act in relation to the same
subject matter, Reiche v.
13 Wall. 162, this presumption is not
conclusive, and the instruction was not objectionable because not
referring to the date of the first appearance of toys in tariff
But the difficulty is that if these articles were only so known
in one trade or branch of trade, or in one part of the country --
partially and locally, and not uniformly and generally -- the
conclusion announced by the instruction would not follow. Recovery
could not be had on a theory involving different rates of duty at
different ports of entry, or distinct and differing
Plaintiff did not attempt to prove that the articles were
handled by toy houses, though evidence was adduced by him that they
were known as toys, and bought and sold as "toy plates, toy teas,
and toy cans," but not by toy dealers, according to defendant's
evidence, and if it were admitted that their signification as toys
was confined to a particular locality, or to a particular class, as
for instance to those who imported them (in which case there might
be danger that the designation would vary with the rates), and not
to those who dealt in them, and that a different meaning obtained
elsewhere or among the latter, then the usage relied on would fail
to be made out.
The instruction, without qualification in the direction of the
essential elements of such a usage, was altogether too broad, and
plaintiff cannot complain of the refusal to give it in the terms in
which it was requested.
The jury found a special verdict that the articles were not
toys, and, then, by direction of the court, found a general verdict
for the defendant. To this no exception was taken, but plaintiff
contends that the general verdict was based upon the special
verdict, and so was given upon an immaterial issue, and that it was
error, there being evidence to establish commercial usage, to
direct the general verdict as the legal result of the special
finding. This, however, does not appear, and, as the judgment was
the logical legal conclusion from the
Page 152 U. S. 373
general verdict and no exception to the direction was preserved,
there is nothing open to our review on this branch of the case.
MR. JUSTICE GRAY was not present at the argument, and took no
part in the decision of this case.