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CADWALADER v. ZEH.

decided: January 8, 1894.

CADWALADER
v.
ZEH.



ERROR TO THE CIRCUIT COURT OF THE UNITED STATES FOR THE EASTERN DISTRICT OF PENNSYLVANIA.

Author: Gray

[ 151 U.S. Page 175]

 MR. JUSTICE GRAY, after stating the case, delivered the opinion of the court.

The question in this case is whether four invoices of small earthenware cups, saucers, mugs and plates, having upon them letters of the alphabet and figures of animals or the like, are to be classed, under the tariff act of 1883, as "toys," subject to a duty of thirty-five per cent, or as "earthenware, decorated or ornamented in any manner," subject to a duty of sixty-five per cent ad valorem.

The jury were instructed that the word "toys," in common speech, means playthings for children; that the word was to have that meaning in this case, unless the evidence showed that at the time of the passage of the tariff act it had a different trade signification, that is, that it was differently used and understood when applied to such merchandise by those engaged in commerce respecting it; and that, if it then had a well known trade signification, the statute must be understood as using it in that sense. The principal exception of the defendant is to this last instruction. The words "trade" and commerce" were evidently used, throughout the instructions requested and those given, as including both domestic and foreign traffic in this country.

[ 151 U.S. Page 176]

     The instruction excepted to was in accordance with the uniform current of decision in this court. 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 adopted. United States v. Chests of Tea, 9 Wheat. 430, 438; Tyng v. Grinnell, 92 U.S. 467; Arthur v. Butterfield, 125 U.S. 70; Robertson v. Salomon, 130 U.S. 412, 415; American Net & Twine Co. v. Worthington, 141 U.S. 468; Toplitz v. Hedden, 146 U.S. 252; Nix v. Hedden, 149 U.S. 304. Among the words to which this rule has been applied are "refined sugar," Barlow v. United States, 7 Pet. 404; "sugar" and "syrup," United States v. Casks of Sugar, 8 Pet. 277; "wool" and "worsted," Elliott v. Swartwout, 10 Pet. 137; "cotton bagging," Curtis v. Martin, 3 How. 106; "silk veils," Arthur v. Morrison, 96 U.S. 108; "bar iron," Worthington v. Abbott, 124 U.S. 434; "furniture finished," Hedden v. Richards, 149 U.S. 346.

None of the cases cited in behalf of the collector have any tendency to shake this rule; but all of them depended on special provisions of the statutes.

The case of Maillard v. Lawrence, 16 How. 251, which was much relied on, arose under the act of July 30, 1846, c. 74, imposing a duty of thirty per cent on "clothing ready made, and wearing apparel of every description, of whatever material composed, made up or manufactured wholly or in part by the tailor, sempstress or manufacturer;" and a duty of twenty-five per cent on "manufactures of silk, or of which silk shall be a component material," and on "manufactures of worsted, or of which worsted shall be a component material." 9 Stat. 45, 46. It was because of the peculiar language of the first of those clauses, making the designed object and actual use of the things the sole test, that this court, affirming the

[ 151 U.S. Page 177]

     judgment of the Circuit Court in 1 Blatchford, 504, held that the words "wearing apparel" must be given their natural and ordinary meaning, and that evidence that shawls of silk or of worsted were not known in trade and commerce as "wearing apparel" was not admissible to show that they were not included in that clause. In the Circuit Court, Mr. Justice Nelson said that "this phraseology, for the purpose of describing a dutiable article, was used for the first time in the act of 1846, and was introduced for the purpose of describing a class of articles, not as known in trade and commerce by any particular appellation, but by the actual use for which they were designed, and to which they were adapted, taken in connection with the fact that they were made up or manufactured wholly or in part by the tailor, sempstress, or manufacturer;" and that "Congress intended to depart from the commercial designation as the test to determine the description within which the duty should or should not be charged, and to leave such determination to the test of the actual use of the article." 1 Blatchford, 505. And Mr. Justice Daniel, in delivering the judgment of this court, said that it must be understood as being the intention of the legislature to comprise "every article which in its design and completion and received uses is an article of wearing apparel," "no matter of what material composed, either in whole or in part, or by whom composed or made up." 16 How. 260.

The decision in De Forrest v. Lawrence, 13 How. 274, was an application of the rule that where goods of a particular kind, which would otherwise be comprehended in a class described by a term having a settled commercial signification, have been described in the customs laws by a more specific designation and subjected to a distinct rate of duty from that imposed upon the class generally, they are taken out of that class for the purpose of the assessment of duties. See Seeberger v. Cahn, 137 U.S. 95, 98, and cases cited.

In Greenleaf v. Goodrich, 101 U.S. 278, and in Schmieder v. Barney, 113 U.S. 645, the extent of the decision was that the phrase "of similar description" was not a technical or commercial ...


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