1. "Nitrobenzole," being a manufacture from benzole and nitric
acid and a nonenumerated article, is subject to duty under the
twentieth section, known as the similitude clause, of the Act of
Aug. 30, 1842, 5 Stat. 565, which provides that
"On all articles manufactured from two or more materials, the
duty shall be assessed at the highest rates at which any of its
component parts may be chargeable,"
and not under the fifth section of the Act of July 14, 1862, 12
id. 648, which imposes a duty of fifty percent
ad
valorem on "essential oils not otherwise provided for."
2. Evidence tending to show that a nonenumerated article
"resembles essential oil in the uses to which it is put, as a
marketable commodity, more than any thing else," falls short of the
requisition of the Act of Aug. 30, 1842,
supra, which
provides that
"On each and every nonenumerated article which bears a
similitude in . . . the use to which it may be applied, to any
enumerated article chargeable with duty"
there shall be levied, collected, and paid "the same rate of
duty which is levied and charged on the enumerated article which it
most resembles."
In March, 1871, Arnson & Wilzinski, the plaintiffs below,
imported into New York a quantity of nitrobenzole, which is
obtained by the chemical action of its constituents -- benzole and
nitric acid -- upon each other. It is then refined and cleaned by
distillation, and sold as nitrobenzole and as "oil of myrbane" to
druggists, soap manufacturers, "and to the trade generally." The
defense introduced testimony that this is a well known article of
commerce, commercially known as oil of myrbane, used for perfuming
and flavoring and also commercially known as "artificial oil of
bitter almonds," as well as by its other names, and that in fact it
resembles essential oil in the uses to which it is put, as a
marketable commodity more than anything else, and is used as a
substitute for an essential oil, being cheaper. Rebutting testimony
was put in by the plaintiffs below.
Murphy, the collector, exacted duty upon this nitrobenzole as
upon an "essential oil not otherwise provided for," fifty percent,
under the fifth section of the Act of July 14, 1862, 12 Stat. 548,
whereas the importers contended that it was a nonenumerated article
and that forty cents a gallon was the proper duty, being the
highest rate payable on either constituent,
Page 96 U. S. 132
agreeably to the similitude clause of the Act of Aug. 30, 1842,
sec. 20, 5 Stat. 565.
Upon this evidence, the court directed a verdict for the
plaintiffs. Judgment having been rendered thereon, the collector
brought the case here.
MR. JUSTICE HUNT delivered the opinion of the Court.
It was an evident error on the part of the collector to tax
"nitrobenzole" as an essential oil. There was no evidence that such
was its character, but it appeared at the trial by uncontradicted
evidence, and was in fact conceded, that it was made by mixing
benzole and nitric acid; that these substances combined by reason
of their chemical affinity, and nitrobenzole was the result. Not
being enumerated as a dutiable article, it falls under the
twentieth section of the Act of Aug. 30, 1842, 5 Stat. 565, called
the similitude clause.
"And be it further enacted, that 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 enumerated article
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 of duty 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
any of its component parts may be chargeable."
The government now contends that the duty assessed by the
collector was the proper one for the reason that nitrobenzole
resembles essential oil in the use to which it is applied, and
should be subject to the same duty with that article, to-wit, fifty
percent. There is no pretense that it resembled essential oil in
material quality or texture. Although made of two fluids, there is
no evidence that the compound resulting bore any
Page 96 U. S. 133
similitude in material quality or texture to either of its
original elements, nor is there any thing in the nature of the
subject to require us to believe that such was the fact.
The evidence of the use to which it might be applied scarcely
warrants us in holding that there was a similitude in that respect.
The case states that the defendant gave evidence tending to show
that the article "resembles essential oil in the uses to which it
is put, as a marketable commodity, more than anything else." This
is all that was shown to make applicable the clause in question,
and we think it falls short of the requisition of the statute that
it must "bear a similitude in the use to which it may be applied."
It may resemble an essential oil in this respect more than anything
else, and yet bear no resemblance. It does not follow because it
resembles nothing else that it resembles essential oil, or because
it cannot be applied to any other use that it may be applied to the
use to which essential oil is applied.
Again, it may be doubted whether proof that "the use to which it
may be put as a marketable commodity" resembles essential oil meets
the meaning of the provision, "bears a similitude in the use to
which it may be applied." The former carries the idea of its
adaptability to sale as a substitute for essential oil, while the
statute plainly refers to its employment, or its effect in
producing results.
But the compound falls plainly within the words of the last
clause of the act we have cited, to-wit,
"and on all articles manufactured from two or more materials the
duty shall be assessed at the highest rates at which any of its
component parts may be chargeable."
We see no more reason to doubt that nitrobenzole is a
manufacture of or from benzole and nitric acid than that glass is a
manufacture from sand and fixed alkalies. This is in harmony with
the decision in
Meyer v. Arthur, 91 U. S.
570, where it was held that the expression "manufactures
of metals of which either of them is the component part of chief
value" did not embrace a case where the metals had lost their form
and character as metals and become the chemical ingredients of new
forms. White lead, nitrate of lead, oxide of zinc, and dry and
orange mineral were held not to be manufactures of metals
Page 96 U. S. 134
within the words of the statute. MR. JUSTICE BRADLEY says:
"When the act speaks of 'manufactures of metals,' it obviously
refers to manufactured articles in which metals form a component
part. When we speak of manufactures of wood, of leather, or of
iron, we refer to articles that have those substances especially
for their component parts, and not to articles in which they have
lost their form entirely and have become the chemical ingredients
of new forms. The qualification which is added to the phrase
'manufactures of metals' -- namely, 'manufactures of metals of
which either of them' (that is, either of the metals) 'is the
component part of chief value' -- corroborates this view."
In the present case, the original elements are fluids, and the
manipulation and the materials blending with each form a union
which is as much a manufacture within the meaning of the statute as
where the materials are mechanically joined together. Bouvier thus
defines the word "manufacture:"
"The word is used in the English and American patent laws. It
includes machinery which is to be used and is not the object of
sale, and substances (such, for example, as medicines) formed by
chemical processes when the vendible substance is the thing
produced, and that which operates preserves no permanent form. . .
. It includes any new combination of old materials constituting a
new result or production, in the form of a vendible article, not
being machinery. The contriver of a new commodity which is not
properly a machine or a composition of matter can obtain a patent
therefor as for a new manufacture. And although it might properly
be regarded as a machine or a composition of matter, yet if the
claim to novelty rests on neither of these grounds, and if it
constitutes an essentially new merchantable commodity, it may be
patented as a new manufacture."
The various nostrums vended all over the land, with or without
the certificate of the Patent Office, are manufactures. Beer may
well be said to be manufactured from malt and other ingredients,
whiskey from corn, or cider from apples. The fact that the identity
of the original article or articles is lost and that a new form or
a new character is assumed is not material in determining whether,
within the popular idea as embodied in the customs act, the article
in question is a manufacture from its original elements.
Page 96 U. S. 135
We have no doubt that nitrobenzole is a manufacture from benzole
and nitric acid, U.S. falling within the twentieth section of the
Act of 1842, and that the duty was rightly fixed by the court
below.
Judgment affirmed.
