Shells cleaned by acid, and then ground on an emery wheel, and
some of them afterwards etched by acid, and all intended to be sold
for ornaments, as shells, were not dutiable at 35 percent
ad
valorem as " manufactures of shells," under Schedule M of §
2504 of the Revised Statutes, page 481, 2d edition, but were exempt
from duty, as "shells of every description, not manufactured" under
§ 2505, page 488.
Duties are never imposed on the citizen upon vague or doubtful
interpretations.
The findings of a jury on which the circuit court reserved
points of law, having been treated by that court and by the counsel
for both parties in it as amounting to either a special verdict or
an agreed statement of facts, this Court overlooked the
irregularity on a writ of error and considered the case on its
merits.
Page 121 U. S. 610
An action to recover back duties alleged to have been illegally
exacted. Judgment for plaintiff; defendant sued out this writ of
error. The case is stated in the opinion of the Court.
MR. JUSTICE BLATCHFORD delivered the opinion of the Court.
This is an action at law, brought in a court of the State of
Pennsylvania and removed into the Circuit Court of the United
States for the Eastern District of Pennsylvania by the firm of J.
H. Wiegmann & Son against the Collector of Customs for the
District of Philadelphia to recover moneys alleged to have been
illegally exacted by him as duties on imported merchandise. After a
trial before a jury, the plaintiffs had a judgment for $55.29, and
the defendant has brought a writ of error. The record contains the
following statement of the result of the trial:
"The jurors aforesaid, upon their oaths or affirmation
aforesaid, respectively do say that they find as follows,
to-wit:"
"Plaintiff imported into the United States from London, in
December, 1881, and May, 1882, a quantity of shells, on which he
paid duties June 11, 1883. Among these shells were 37 1/2 doz.
regius murex; 8 doz. green ears; 3 doz. white ears, valued at
$71.68, on which the collector imposed a discriminating duty of 10
percent, or $7.16, as the products of a country east of the Cape of
Good Hope; 12 doz. green snails; 27 doz. Lord's prayers; 12 doz.
mottoes; 9 doz. Turk's Caps; 3 doz. magpies; 8 doz. snails; 1 doz.
trocus; 16 doz. green ears; 3 doz. white ears, valued at $125.70,
on which the collector imposed a duty of 35 percent, or $44.09, as
manufactures of shells."
"The testimony in regard to these shells was as follows:"
"Frederick W. Weigmann:"
"These shells were purchased in London. The merchants there
obtain them from all parts of
Page 121 U. S. 611
the world. They are cleaned and prepared for market there. The
epidermis is first cleaned off, and then the shells are ground or
polished for the market. They are cleaned by acid. They are ground
on an emery wheel to expose the pearly interior. The purpose of
both operations is to fit the shells for market. We sell them for
ornaments. We import them for the seashore, and sometimes we sell
them for buttons, handles to penknives, etc. There is no difference
in name and use between the shells ground on the emery wheel and
those not ground. The Lord's prayer shell is sold for the same
purpose. There is no new use."
"Dr. Joseph Leidy: [Regius murex shown witness.]"
"That comes from Panama. [Green ear shown witness.] That is from
the Pacific coast. [Two white ears shown witness.] One of these is
from the west coast of Africa, and the other from Japan. Most
shells have three layers. They have the thin, brown skin; the
outside layer, like the common freshwater mussel; then they have an
inner layer, which is very brilliant. Very frequently the water is
sufficient to wear off the skin, and they show the dull layer on
the outside. By artificial means, that opaque whitish layer is
ground off by means of a wheel and the inner layer is exposed,
which presents that inner pearly appearance. [Samples shown
witness.] These shells have had the outer layer ground off so as to
exhibit the beautiful inner layer. That has been done by the
application of a wheel, and afterwards by polishing."
"Q. There is something here called the 'Lord's prayer.' I do not
suppose you know it by that name, but please tell us about it."
"A. Well, I understand its nature. The shell happens to be of
the kind which is very frequently imported and used as an ornament
without any alteration whatever. The outer covering was taken off
in the shape of letters, by first covering the letters with wax or
grease, and then covering that with lime, having in the meantime
eaten out the letters by acid or by etching. The object of taking
off the epidermis is simply to show the internal beauty, for the
purpose of ornament, and the object of taking off the second layer
is the same, simply for the purpose of ornament. "
Page 121 U. S. 612
"The jury find that the regius murex, green ears, and white ears
are products of countries west of the Cape of Good Hope, as above
testified, and that the discriminating duty on them amounted to
$7.16, which, with interest to October 5, 1883, amounts to $7.72.
The jury finds that the green snails, Turk's caps, magpies, snails,
trocus, green ears, and white ears have been ground upon an emery
wheel in the manner and for the purpose described in the above
testimony; that the duty collected on them as manufactures of
shells amounted to $25.98, which, with interest to October 5, 1883,
amounts to $28.03. The jury also find that the Lord's prayers and
mottoes have been etched with acid in the manner and for the
purpose described in the above testimony; that the duty collected
on them as manufactures of shells amounted to $18.11, which, with
interest to October 5, 1883, amounts to $19.54."
RECAPITULATION
Discriminating duty . . . . . . . . . $ 7.72
Duty on ground shells . . . . . . . . 28.03
Duty on etched shells . . . . . . . . 19.54
------
$55.29
"And the court reserved the following points:"
"1. If the court should be of opinion that both the shells
Page 121 U. S. 613
ground on an emery wheel and the shells etched with acids in the
manner found by the jury were not liable to duty as 'manufactures
of shells,' but were entitled to be admitted free, as 'shells
unmanufactured,' then judgment to be entered in favor of the
plaintiff for fifty-five dollars and twenty-nine cents."
"2. If the court should be of opinion that the shells etched by
acids in the manner found by the jury were liable to duty as
'manufactures of shells,' but that the shells ground on an emery
wheel as found by the jury were not so liable, then judgment to be
entered in favor of the plaintiff for thirty-five dollars and
seventy-five cents."
"3. If the court should be of opinion that both the shells
ground on an emery wheel and those etched by acids were liable to
duty as 'manufactures of shells,' then judgment to be entered for
plaintiff for seven dollars and seventy-two cents only, being the
amount of discriminating duty on shells found by the jury to have
been imported from countries west of the Cape of Good Hope."
The defendant then moved for a new trial, in refusing to grant
which the court held
"that in order to render the shells subject to duty as
'manufactures of shells,' something more must be done than simply
to remove the outer surface either by acids or mechanical means,
and that while the shells retained their special form and
character, they could not be classified as 'manufactures of
shells.'"
The finding of the jury is not in the usual form of a special
verdict, but the jury make certain findings, and the statement is
that the court reserves the three points stated, and each point
reserved is stated in one and the same form -- namely that if the
court should be of opinion that the shells are dutiable thus and
so, or are free from duty, then judgment is to be entered for the
plaintiff for a specified sum. As the circuit court and the counsel
for both parties in that court appear to have treated the findings
and the reservation as amounting to either a special verdict or an
agreed statement of facts, we are disposed to overlook the
irregularity and to consider the case on its merits.
Mumford v.
Wardwell, 6 Wall. 423.
It is contended on the part of the government that the shells
were dutiable under the following provision of § 2504 of the
Revised Statutes, Schedule M, p. 481, 2d ed., "Shells, manufactures
of, thirty-five percent
ad valorem."
On the other side it is contended that the articles were free
under the following provision of § 2505, p. 488, 2d ed., in regard
to articles exempt from duty: "Shells of every description, not
manufactured."
The collector levied a duty upon the shells of thirty-five
percent. The circuit court held that they were exempt from duty.
The question is whether cleaning off the outer layer of the shell
by acid and then grinding off the second layer by an emery wheel so
as to expose the brilliant inner
Page 121 U. S. 614
layer is a manufacture of the shell, the object of these
manipulations being simply for the purpose of ornament and some of
the shells being afterwards etched by acids so as to produce
inscriptions upon them. It appears that the shells in question were
to be sold for ornaments, but that shells of these descriptions
have also a use to be made into buttons and handles of penknives,
and that there is no difference in name and use between the shells
ground on the emery wheel and those not ground. It is contended by
the government that shells prepared by the mechanical or chemical
means stated in the record, for ultimate use, are shells
manufactured or manufactures of shells within the meaning of the
statute.
By the Act of March 2, 1861, c. 68, § 22, 12 Stat. 192, a duty
of 30 percent
ad valorem was imposed on "manufactures of
shells," and by the Act of July 14, 1862, c. 163, § 13, 12 Stat.
557, that duty was increased to 35 percent
ad valorem. By
the Act of July 14, 1870, c. 255, § 22, 16 Stat. 268, "shells of
every description, not manufactured," were exempted from duty.
These enactments were carried into the Revised Statutes.
It is stated in the brief on the part of the government that the
interpretation of these provisions by the Treasury Department has
not been uniform. In April, 1872, it ruled that "shells which have
merely been cleaned and polished with acids cannot fairly be
classified as manufactures of shells." In July, 1876, it ruled that
shells engraved by the application of acids were manufactured
shells. In August, 1877, it ruled that where the manufacture of the
shells consisted merely in polishing them and removing, by grinding
or otherwise, a portion of the surface, the shells were exempt from
duty because their character and condition had not been materially
changed and they still preserved their identity as shells. At a
later date, in regard to shells that had been cleaned by the use of
the emery wheel and buffer, and shells which had been polished by
the use of acids, it held that they were dutiable at the rate of 35
percent, as manufactures of shells, on the ground that they had
been advanced, by cleaning, grinding, and otherwise, to a condition
beyond that of crude, unmanufactured shells.
Page 121 U. S. 615
We are of opinion that the shells in question here were not
manufactured, and were not manufactures of shells within the sense
of the statute imposing a duty of 35 percent upon such
manufactures, but were shells not manufactured, and fell under that
designation in the free list. They were still shells. They had not
been manufactured into a new and different article having a
distinctive name, character, or use from that of a shell. The
application of labor to an article either by hand or by mechanism
does not make the article necessarily a manufactured article within
the meaning of that term as used in the tariff laws. Washing and
scouring wool does not make the resulting wool a manufacture of
wool. Cleaning and ginning cotton does not make the resulting
cotton a manufacture of cotton. In Schedule M of § 2504 of the
Revised Statutes, p. 475, 2d ed., a duty of 30 percent
ad
valorem is imposed on "coral, cut or manufactured," and in §
2505, p. 484, "coral, marine, unmanufactured" is made exempt from
duty. These provisions clearly imply that but for the special
provision imposing the duty on cut coral, it would not be regarded
as a manufactured article although labor was employed in cutting
it. In
Frazee v. Moffitt, 20 Blatchford 267, it was held
that hay pressed into bales, ready for market, was not a
manufactured article, though labor had been bestowed in cutting and
drying the grass and baling the hay. In
Lawrence
v. Allen, 7 How. 785, it was held that India-rubber
shoes, made in Brazil by simply allowing the sap of the
India-rubber tree to harden upon a mould, were a manufactured
article because it was capable of use in that shape as a shoe, and
had been put into a new form capable of use and designed to be used
in such new form. In
United States v.
Potts, 5 Cranch 284, round copper plates turned up
and raised at the edges from four to five inches by the application
of labor to fit them for subsequent use in the manufacture of
copper vessels, but which were still bought by the pound as copper
for use in making copper vessels, were held not to be manufactured
copper. In the case of
United States v. Wilson, 1 Hunt's
Merchants' Magazine 167, Judge Betts held that marble which had
been cut into blocks for the convenience of
Page 121 U. S. 616
transportation was not manufactured marble, but was free from
duty as being unmanufactured.
We are of opinion that the decision of the circuit court was
correct. But if the question were one of doubt, the doubt would be
resolved in favor of the importer, "as duties are never imposed on
the citizen upon vague or doubtful interpretations."
Powers v.
Barney, 5 Blatchford 202;
United States v.
Isham, 17 Wall. 496,
84 U. S. 504;
Gurr v. Scudds, 11 Exch. 190, 191;
Adams v.
Bancroft, 3 Sumner 384.
Judgment affirmed.