The Tariff Act passed in 1846, 9 Stat. 44, enacted duties on
glass, as follows,
viz.,
"Schedule B. Forty percentum
ad valorem, Glass
cut."
"Schedule C. Thirty percentum
ad valorem, Glass
tumblers, plain, moulded, or 'pressed, not cut or punted.'"
"The following classes of tumblers fill within Schedule B, and
are chargeable with a duty of forty percentum,
viz.,"
"1. Glass tumblers the entire surface of the bottom of which had
been smoothed by the glass cutter or grinder previous to their
importation into the United States."
"2. Glass tumblers on the sides of which ornamental figures had
been engraved by the glass cutter or engraver previous to their
importation into the United States."
This was an action brought up by the plaintiffs against the
Collector of New York for the return of certain duties, paid under
protest and charged to have been illegally exacted upon the
importation of glass tumblers.
The Tariff of 3 August, 1846, 9 Stat. 44, 45, ch. 74, enacted
duties on glass, as follows,
viz.:
"Schedule B. Forty percentum
ad valorem."
"Glass cut."
"Schedule C. Thirty percentum
ad valorem. "
Page 53 U. S. 10
"Glass tumblers, plain, moulded, or pressed; not cut or
punted."
The demand of the plaintiffs, Binns & Halstead for alleged
overcharge of duties paid to the collector was founded on the
importations of glass tumblers of two kinds:
1. Glass tumblers the entire surface of the bottom of which had
been smoothed by the glass cutter or grinder previous to their
importation into the United States.
2. Glass tumblers on the sides of which ornamental figures had
been engraved by the glass cutter or engraver previous to their
importation into the United States.
Upon these tumblers the collector charged a duty of forty
percent, classing them under schedule B. In ten importations, this
duty of forty percent amounted to $6,695.70, whereas the plaintiffs
alleged that it was $730.20 too much, averring that the tumblers
properly belong to Schedule C, and to recover this excess the
present action was brought.
Upon the trial, the jury found a verdict for the defendant. But
upon the trial, the counsel for the plaintiffs excepted to the
charge of the court, which exception was reserved for argument.
Upon which said argument it occurred as a question whether,
according to the true construction of the Act of Congress of 30
July, 1846, entitled, "An act reducing the duty on imports, and for
other purposes," glass tumblers the bottoms of which have been
smoothed or flattened by the process of cutting or grinding and
glass tumblers which have been engraved on the sides by a similar
process should be charged with the duty of 40 percentum
ad
valorem under schedule B of said act as "glass cut," or with
the duty of 30 percentum
ad valorem under schedule C of
said act as "glass tumblers, plain, moulded or pressed, not cut or
punted."
On which question the opinions of the judges of the court were
opposed.
"Whereupon, on motion of the said plaintiffs by their counsel
that the point upon which the disagreement hath happened may,
during the term, be stated under the direction of the judges, and
certified under the seal of this Court to the Supreme Court to be
finally decided: "
"It is ordered that the following statement of facts, which is
made under the direction of the judges, be certified according to
the request of the said plaintiffs and the statute in such case
made and provided."
"
Statement of Facts"
"That the tumblers in question consisted of two kinds, as
follows:
Page 53 U. S. 11
"
"1. Glass tumblers the entire surface of the bottoms of which
had been smoothed by the glass cutter or grinder previous to their
importation by the plaintiffs."
"2. Glass tumblers on the sides of which ornamental figures had
been engraved by the glass cutter or engraver previous to such
importation."
"That the tumblers in question, of the first class are only
known in trade and commerce in the City of New York as 'plain
tumblers' or as 'plain smooth-bottomed tumblers,' or as 'plain
tumblers with flattened bottoms.'"
"That the tumblers in question of the second class are only
known in trade and commerce in said city as 'engraved
tumblers.'"
"That the tumblers in question of both classes are not known in
trade and commerce in said city as 'cut glass.'"
"That all the material witnesses for the plaintiffs were
merchants, importing and dealing in glassware."
"That all the material witnesses for the defendant were
manufacturers of glassware or glass cutters and grinders."
"That the designation 'cut glass,' as used in trade and commerce
in said city, applies only to tumblers the sides of which have been
cut or ground, and that the importers of glassware and dealers in
glassware in said city do not consider tumblers of the description
in question in this suit as coming within the designation, and if
they received an order from a customer for 'cut glass tumblers,'
would not regard it as including either smooth-bottomed or engraved
tumblers."
"That by the testimony of the manufacturers and operatives,
glass tumblers are manufactured entirely by the glass-blower, or in
part by the glass-blower and in part by the glass cutter or
grinder, and that glass blowing and glass cutting are distinct and
separate trades, and processes of manufacture."
"By the same witnesses. That the bottoms of glass tumblers
manufactured entirely by the glass-blower are rough, particularly
in the center, being there broken off from the punt or stick on
which made, and that when sold in this condition, such tumblers are
known in trade and commerce in the City of New York as 'plain' or
'plain rough-bottomed tumblers.'"
"By the same witnesses. That after their completion by the
glass-blower, such rough-bottomed tumblers frequently pass into the
hands of the glass cutter or grinder, by whom the center of the
bottoms of tumblers is cut or smoothed for the purpose of removing
the particular roughness of that part of the tumbler, and that the
process of thus cutting or smoothing the center of the bottoms of
such tumblers is called punting, and that tumblers manufactured by
the glass-blower, but the center part of
Page 53 U. S. 12
the bottoms of which have been so cut or smoothed by the glass
cutter, are known in trade and commerce as 'punted' tumblers."
"By the same witnesses. That after their completion by the
glass-blower, such rough-bottomed tumblers frequently pass into the
hands of the glass cutter or grinder, by whom the entire surface of
the bottoms of such tumblers is cut or smoothed, and that tumblers
manufactured by the glass-blower, but the entire bottoms of which
have been cut or smoothed by the glass cutter or grinder, are known
in trade and commerce as 'plain tumblers,' or as 'plain
smooth-bottomed tumblers,' or as 'plain tumblers with flattened
bottoms,' and are similar to the tumblers in question of the first
class."
"By the same witnesses. That tumblers known in trade and
commerce and amongst manufacturers as 'moulded tumblers' or
'pressed tumblers' are also made entirely by the glass-blower, and
are also rough-bottomed until subjected to the process of punting
or smoothing and cutting above described."
"By the same witnesses. That all cutting of glass is done by
means of grinding upon wheels, and that there is no such thing as
the cutting of glass in the manufacture of 'cut-glass' in any other
way."
"By the same witnesses. That the cutting or smoothing of the
bottoms of the tumblers in question of the first class is done by
the glass cutter, and that the process of cutting and smoothing is
identical with that of punting except that it extends to the entire
surface of the bottom of the tumblers, whereas the 'punting' is
limited, as above stated, to the center of the bottom merely."
"By the same witnesses. That the process of 'punting' and the
process of 'cutting or smoothing' the bottoms of the tumblers in
question are identical in their operation with that of cutting the
sides of tumblers, known in trade and commerce as 'cut glass.'"
"It is proved that the time required to cut or smooth the bottom
of the tumblers in question of the first class is four or five
times as long as that required for 'punting' the bottoms of punted
tumblers, and that tumblers with the bottoms cut or smoothed cost
from 18 to 22 cents per dozen more than punted tumblers."
"It is proved that the 'punted' tumblers are charged with the
duty of 40 percentum
ad valorem under the Tariff Act of
1846."
"It was proved by the manufacturers and operatives that the
process of engraving the tumblers of the second class is similar to
that of cutting the tumblers of the first class, but is a finer
species of work, requiring more experienced and skillful workmen
and the use of copper wheels instead of wood and stone wheels, and
oil and emery instead of sand. "
Page 53 U. S. 13
"All which we have caused by these presents to be exemplified,
and the seal of the said circuit court to be hereunto affixed."
"Witness the Hon. Roger B. Taney, Chief Justice of the Supreme
Court of the United States, at the City of New York this first day
of December, in the year of our Lord one thousand eight hundred and
forty-nine, and of the independence of the United States the
seventy-fourth."
"ALEXANDER GARDINER,
Clerk"
"I, Samuel R. Betts, one of the judges of the Circuit Court of
the United States for the Southern District of New York in the
Second Circuit, do hereby certify that the foregoing
exemplification is in due form of law."
"SAMUEL R. BETTS"
Page 53 U. S. 14
MR. JUSTICE DANIEL delivered the opinion of the Court.
This was an action brought by the plaintiffs, importers of
glassware, against the defendant as collector of the port of New
York to recover a certain amount of money paid under protest to the
defendant as collector for duties exacted by him upon glass
tumblers imported by the plaintiffs at the period set forth in an
exhibit filed in the cause, by which are also shown the duties
charged by and paid to the defendant and the amount claimed by the
plaintiffs as having been improperly exacted, this last amount
consisting in each instance of the difference between the duty of
40 percentum
ad valorem charged under schedule B of the
Tariff Act of July 30, 1846, as on importations of "glass cut" and
the duty of 30 percentum
ad valorem, at which rate the
plaintiffs claimed to enter their importations of glass
above-mentioned, under schedule C of the same act of Congress as
"glass tumblers plain, moulded, or pressed, not cut or punted."
The question of law upon the construction of the statute
Page 53 U. S. 15
of 1846 upon which the judges differed in opinion, and the facts
of the case out of which that question has grown, cannot be stated
with greater clearness or with more succinctness of form than they
have been in the certificate from the circuit court.
"This cause having been tried before his honor Justice Nelson,
on the 3d of November, 1848, the jury empanelled returned a verdict
for the defendant. The counsel for the plaintiff having excepted to
the charge of the presiding judge on the trial, the cause was heard
upon the exceptions reserved for the plaintiff involving the
question whether, according to the true construction of the Act of
Congress of 30 July, 1846, entitled 'An act reducing the duty on
imports and for other purposes,' glass tumblers the bottoms of
which have been smoothed or flattened by the process of cutting or
grinding and glass tumblers which have been engraved on the sides
by a similar process should be charged with the duty of 40
percentum
ad valorem under schedule B of said act, as
'glass cut,' or with the duty of 30 percentum
ad valorem
under schedule C of said act as 'glass tumblers plain, moulded, or
pressed, not cut or punted.'"
"On which question the opinion of the judges of the court were
opposed."
"Whereupon, on motion of the said plaintiffs by their counsel
that the point upon which the disagreement hath happened may during
the term be stated under the direction of the judges and certified
under the seal of this Court to the Supreme Court to be finally
decided."
"It is ordered that the following statement of facts, which is
made under the direction of the judges, be certified according to
the request of the said plaintiffs, and the statute in such case
made and provided."
"
Statement of Facts"
"That the tumblers in question consisted of two kinds, as
follows: "
"1. Glass tumblers the entire surface of the bottoms of which
had been smoothed by the glass cutter or grinder previous to their
importation by the plaintiffs."
"2. Glass tumblers on the sides of which ornamental figures had
been engraved by the glass cutter or engraver previous to such
importation."
"That the tumblers in question of the first class are only known
in trade and commerce in the City of New York as 'plain tumblers'
or as 'plain smooth-bottomed tumblers' or as 'plain tumblers with
flattened bottoms.'"
"That the tumblers in question of the second class are only
Page 53 U. S. 16
known in trade and commerce in said city as 'engraved
tumblers.'"
"That the tumblers in question of both classes are not known in
trade and commerce in said city as 'cut glass.'"
"That all the material witnesses for the plaintiffs were
merchants importing and dealing in glassware."
"That all the material witnesses for the defendant were
manufacturers of glassware or glass cutters and grinders."
"That the designation 'cut glass,' as used in trade and commerce
in said city, applies only to tumblers the sides of which have been
cut or ground, and that the importers of glassware and dealers in
glassware in said city do not consider tumblers of the description
in question in this suit as coming within the designation, and if
they received an order from a customer for 'cut glass tumblers,'
would not regard it as including either smooth-bottomed or engraved
tumblers."
"That by the testimony of the manufacturers and operatives,
glass tumblers are manufactured entirely by the glass-blower, or in
part by the glass-blower and in part by the glass-cutter or
grinder, and that glass-blowing and glass-cutting are distinct and
separate trades and processes of manufacture."
"By the same witnesses. That the bottoms of glass tumblers
manufactured entirely by the glass-blower, are rough, particularly
in the center, being there broken off from the punt or stick on
which made; and that when sold in this condition, such tumblers are
known in trade and commerce in the City of New York as 'plain' or
'plain rough-bottomed tumblers.'"
"By the same witnesses. That after their completion by the
glass-blower, such rough-bottomed tumblers frequently pass into the
hands of the glass cutter or grinder, by whom the center of the
bottoms of such tumblers is cut or smoothed for the purpose of
removing the particular roughness of that part of the tumblers, and
that the process of thus cutting or smoothing the center of the
bottoms of such tumblers is called punting, and that tumblers
manufactured by the glass-blower, but the center part of the
bottoms of which have been so cut or smoothed by the glass cutter,
are known in trade and commerce as 'punted' tumblers."
"By the same witnesses. That after their completion by the
glass-blower, such rough-bottomed tumblers frequently pass into the
hands of the glass cutter or grinder, by whom the entire surface of
the bottoms of such tumblers is cut or smoothed, and that tumblers
manufactured by the glass-blower, but the entire bottoms of which
have been cut or smoothed by the glass cutter or grinder, are known
in trade and commerce as 'plain tumblers,' or as 'plain
smoothed-bottomed tumblers,' or as 'plain
Page 53 U. S. 17
tumblers with flattened bottoms,' and are similar to the
tumblers in question of the first class."
"By the same witnesses. That tumblers known in trade and
commerce and amongst manufacturers as 'moulded tumblers,' or
'pressed tumblers,' are also made entirely by the glass-blower, and
are also rough-bottomed until subjected to the process of punting
or smoothing and cutting above described."
"By the same witnesses. That all cutting of glass is done by
means of grinding upon wheels, and that there is no such thing as
the cutting of glass in the manufacture of 'cut glass' in any other
way."
"By the same witnesses. That the cutting or smoothing of the
bottoms of the tumblers in question of the first class is done by
the glass cutter, and that the process of cutting and smoothing is
identical with that of punting, except that it extends to the
entire surface of the bottom of the tumblers, whereas the 'punting'
is limited, as above stated, to the center of the bottom
merely."
"By the same witnesses. That the process of 'punting' and the
process of 'cutting or smoothing' the bottoms of the tumblers in
question are identical in their operation with that of cutting the
sides of tumblers, known in trade and commerce as 'cut glass.'"
"It was proved that the time required to cut or smooth the
bottoms of the tumblers in question of the first class is four or
five times as long as that required for 'punting' the bottoms of
punted tumblers, and that tumblers with the bottoms cut or smoothed
cost from 18 to 22 cents per dozen more than punted tumblers."
"It was proved that the 'punted' tumblers are charged with the
duty of 40 percentum
ad valorem under the Tariff Act of
1846."
"It was proved by the manufacturers and operatives that the
process of engraving the tumblers of the second class is similar to
that of cutting the tumblers of the first class, but is a finer
species of work, requiring more experienced and skillful workmen
and the use of copper wheels instead of wood and stone wheels, and
oil and emery instead of sand."
The question referred to this Court by the aforegoing
certificate, and the solution of that question, are supposed to lie
within a comparatively narrow compass. In the construction of the
Act of Congress of July 30, 1846, as in that of every other
statute, one cardinal rule must govern, and it is this -- that
wherever the will or intention of the lawmaking power is declared
in plain and unequivocal terms, that will or intention must be
followed -- absolutely followed. It would not be admissible
Page 53 U. S. 18
under such circumstances, to attempt a control or modification
of that will, by speculations of policy or by facts or opinions
derived
aliunde, as such a proceeding would in effect
operate a repeal of the positive law, or the abrogation of a
superior power, by what were the just and regular subjects of its
operation. Where a statute may be ambiguous in its language or may
have reference to facts or conclusions dependent on usage, the
influence of opinion or the proof of established usage may be
proper or even indispensable in fixing the just interpretation of
the law, but it is only in instances like these last mentioned that
such a rule of interpretation can be tolerated.
The question presented upon the certificate from the circuit
court will be considered 1st with reference to the language of the
Tariff Act of July 30, 1846, and next upon the import of the facts
proved in the case, upon the hypothesis that those facts could at
all affect the rule of interpretation.
In schedule B, part of the act above-mentioned, laying an impost
of 40 percentum on all articles embraced within it, the only
description of glass mentioned is that designated as
"glass
cut." Its distinguishing characteristic that brings the
article within the purview of that schedule is that it be cut; the
figure or the extent in which the process of cutting should have
been applied was nowhere defined by the statute, and it must be
obvious that any attempt to define or describe that which may and
must indeed be as diverse as the skill, the taste, or the prospect
of profit on the part of the manufacturer would have been utterly
nugatory. But it could be easily understood both by the lawmaker
and by others that the beauty, the quality, and the price of glass
are heightened by the process of cutting, and it was equally
notorious or susceptible of proof that the process of cutting is
accomplished by but one species of operation,
viz., the
operation of grinding. It would appear plain then, that all glass
subjected to this one known process, as being enhanced in value,
was designed to fall within the description in the statute of
"glass cut."
The articles of glassware enumerated in schedule C as being
subject to an impost of 30 percentum are thus described,
viz., glass tumblers plain, moulded, or pressed,
"not
cut or punted." Upon the language of the description just
quoted it would seem too clear for cavil that cut or punted
tumblers cannot be placed in the same class with those that are
enumerated as "
plain, moulded, or
pressed," but
are carefully contradistinguished from these last denominations.
Cut or
punted tumblers, therefore, even if these
two terms could be understood as having different significations
and were not applicable merely to different degrees of cutting or
grinding, do not fall under the lower rate of duty -- but all
Page 53 U. S. 19
cut tumblers, no matter in what part, in what figures or to what
extent they are cut, and all
punted tumblers were by the
Act of Congress of July 30, 1846, subject to a duty of 40 percent
upon the proper construction of the language of the statute. An
effort has been made to control this language by introducing the
opinions of certain dealers in glass and of other persons in the
City of New York to show that tumblers, the entire bottom of which
are ground or smoothed by the glass-cutter, and tumblers the sides
of which are wrought and ornamented by the same means, are not
considered as
cut, but are held to be the first
plain, and the second
engraved tumblers. The sum
of the argument thus attempted, when tested by common sense,
amounts to this: that the process of grinding or cutting, when
applied to the entire surface of the bottom of tumblers or to the
ornamenting of their sides, although it be the identical process
and the only one by which cut glass is manufactured, is not
cutting, but something less, and that the manufacturing of cut
glass means something else or beyond the only process by which cut
glass is ever made. The integrity or indeed the intelligibility of
this argument this Court is unable to perceive. It cannot be
sustained in opposition to the language of the statute, in
violation of consistency, and against the weight of the testimony
in the cause, upon mere arbitrary and unfounded assumption or upon
opinion entertained within a limited theater, and this by persons
whose interests are involved in and would be advanced by that
assumption. The weakness of this assumption is further exposed by
recurrence to facts stated by manufacturers and found in the
record, in strict conformity with which the distinction made in the
statute appears to have been taken.
Thus it is proved that tumblers are manufactured either entirely
by the glass-blower or in part by the glass-blower and in part by
the cutter or grinder, and
that glass-blowing and glass-cutting
are distinct and separate trades and processes of manufacture.
It is further shown in proof that the bottoms of tumblers
manufactured entirely by the glass-blower are rough in the center,
being there broken off from the punt or stick in which they are
made; that after their completion as far as can be by the
glass-blower, they pass into the hands of the cutter or grinder, by
whom the center of the bottom is cut or smoothed, and that the
process of thus cutting or smoothing the center of the bottoms of
these tumblers is called
punting. Again it is in proof
that the tumblers, as made by the glass-blower, are frequently
passed to the cutter or grinder, by whom the
entire
surface of the bottom is cut or smoothed, and it is the
tumbler, thus cut and finished by the glass cutter, that is said to
be known in the trade in
Page 53 U. S. 20
New York as "the plain tumbler" or as the "plain,
smoothed-bottomed tumbler." It is also proved that the cutting and
smoothing the bottom of the tumbler is effected by the identical
process which is applied in
punting, the only difference
consisting in the fact that in the former operation, it extends to
the
entire surface, instead of being limited to the point
at which the tumbler was separated from the punt or stick. "Cut or
punted tumblers are expressly distinguished in the statute from
glass tumblers,
plain, moulded, or pressed." Punted
tumblers, it is clearly shown by the facts certified, are made by
the operation of cutting or grinding the center of the bottom; the
smoothing of the entire bottoms of tumblers is merely the
application of the same process to a greater extent; how this
extended application can cause those tumblers subjected to it to be
considered less as
cut glass than if they were merely
punted or cut at a small point of the bottom presents a problem not
easy of solution. Could these tumblers, with the entire bottom or
sides cut or ground, be, with any propriety of language denominated
"plain tumblers," or "plain, smoothed-bottomed tumblers," they
still are not the less "plain tumblers," or "plain,
smoothed-bottomed tumblers," or "plain tumblers with flattened
bottoms," or "engraved tumblers" so constituted by the operation of
cutting or grinding. In this view of the question
certified, it is the opinion of this Court that glass tumblers
having the entire surface or bottom smoothed or polished, or their
sides figured or ornamented by cutting or grinding, come regularly
within the operation of schedule B of the Tariff Act of July 30,
1846, and are, within the intent and meaning of that schedule,
subject to a duty of 40 percentum
ad valorem, as
glass
cut, and we order it to be
So certified to the Circuit Court of the United States for
the Southern District of New York.
Order
This cause came on to be heard on the transcript of the record
from the Circuit Court of the United States for the Southern
District of New York, and on the point or question on which the
judges of the said circuit court were opposed in opinion, and which
was certified to this Court for its opinion, agreeably to the act
of Congress in such case made and provided, and was argued by
counsel. On consideration whereof, it is the opinion of this Court
that according to the true construction of the Act of Congress of
30 July, 1846, entitled "An act reducing the duty on imports, and
for other purposes," glass tumblers the bottoms of which have been
smoothed or flattened by the process of cutting or grinding, and
glass tumblers which have been
Page 53 U. S. 21
engraved on the sides by a similar process, should be charged
with the duty of 40 percentum
ad valorem under schedule B
of said act as cut glass. Whereupon it is now here ordered and
adjudged by this Court that it be so certified to the said circuit
court.
