Batterson v. Magone

48 F. 289, 1891 U.S. App. LEXIS 1590

• Court: U.S. Circuit Court for the District of Southern New York
• Decided: November 18, 1891
• Status: Published

Opinion

Lacombe, Circuit Judge,

(charging jury.) You will not be troubled with any determination of the question as to similitude or similarity. Those provisions in the tariff laws rofor only to articles which have not been enumerated m some wav or other in the tariff. As 1. find this article enumerated, — certainly in one place, if not in more, in the tariff, - — the particular paragraph referring to similitude does not apply. This is an article which evidently has come to this country quite recently: but it was known here prior to 1883, and therefore we would naturally expect that in some way or other congress was aware of its existence, aiid by some terminology or other in the statute did provide for it. Referring to the tariff, we find a provision in paragraph'638, in the free list, enumerating “ crude minerals, not advanced in value or condition ” beyond a certain stage. I charge you that this is a crude mineral, as described therein; and, if there were nothing else in the tariff but that provision, we would have the case determined. It seems, however, unreasonable to suppose that congress would have provided for an article such as this, coming to this country in considerable quantities, and entering largely into trade, by so brief and general a description; and, looking further to the tariff, we find two paragraphs, which it is contended on one1 side or the other may properly be applicable to this article. One of these is paragraph 487, which provides for a rate of one dollar per ton on “stones, unmanufactured or undressed, freestone, granite, sandstone, and all building or monumental stone, except marble.”

The first question tor you to determine in regañí to this article is whether it is or is not properly building or monumental stone other than marble, within the meaning of that paragraph. As to the meaning of those two words “building” stone and “monumental” stone, I charge you that a building stone is one which enters structurally into the composition of a building, not something added as pure ornament to a structure complete without it. 1 further charge you that a monumental stone is one which is a structural component of a monument, and not something which is added as more ornament to a completed monument. With those definitions of the two words “building” stone and “monumental” stone in your minds, you will apply what you have hpard from the evidence here as to the uses to which this stone is put when it is availed of in the process of building, or in the process of erecting monuments; and you will determine whether or not it is building stone or monumental stone on the evidence which has been given to you. But should you roach the conclusion that it is building stone or monumental stone, there then remains the other question,- — as to whether it is or is not marble; for the very paragraph which lays a duty on building and monumental stone excepts marble from its operation. That brings yon, then, to the final question in the case. — whether it is oris not marble. The word “marble,” as it is used in common speech, is undoubtedly broad enough to cover this article here; and we have learned that its composition, material, and appearance are such that it would be properly classified under the ordinary use of the word “ marble ” in the English language, as given to us by the dictionaries. It is contended, however, that in trade and commerce there is a different meaning given to the word “ marble ” — or, rather, that there was a different meaning so given to the word “marble” in 1883 — from that which is in use. in common speech. You will understand, of course, that all these tariff acts'are passed in regulation of commerce, and that the usages óf commerce and the nomenclature of merchants and wholesale dealers in the various articles named in the tariff are taken into consideration by congress when framing tariff laws when using the language in which they express themselves. Of course it is not enough for a party who claims that his article is not within the ordinary meaning of the terms of common speech to show that it always has in trade some special name that it is called by, unless he goes further, and shows that in that same trade the general term, which otherwise would cover it, is used exclusively for articles other than the one as to which he claims the special designation. For instance, as an illustration, (which I have used quite frequently, but perhaps you will understand it better from an illustration than from a mere statement in words,) wheat is a “grain ; ” and therefore, if a tariff act provided a certain duty for grain, then wheat of all kinds and sorts would pay that duty. Now, no amount of evidence that certain seeds were always bought and sold as “ winter wheat,” and never were called anything else in trade, would take them out of the general designation of grains, unless the trade testimony went further, and showed that the commerce of this country understood the word “grain” as referring exclusively to cereals other than wheat. And so here, in order to establish the proposition that the articles imported here are not marbles, it is not sufficient for the plaintiff to show that they are always bought and sold as onyx, or as Mexican onyx; he must go further, and satisfy you from testimony, and by a fair preponderance of proof, tbat the trade in this country in 1883 dealt in that article as something different from marble; and .that the various kinds and varieties of marble which it knew, dealt in, and recognized as marble, did not include this particular article. In other words, when the committees of congress were drawing this bill, and the members of congress were voting upon it, if they, at that time, had been fully informed as to trade knowledge ón this -whole subject, would they have considered that by the use of the word “ marble ” they did or did not include this Mexican onyx? If congress, in 1883, thus enlightened by the trade knowledge of those who dealt in marbles and in Mexican onyx, would have understood that “ marble ” included “ Mexican onyx,” then you must find that this importation is marble. . If, however, congress would have understood at that time that when it used the word “marble,” although it might include many varieties of limestone, carbonates, calcites, etc., it still did not include this article then known and dealt in here, you must find that the article imported in this ease is not marble.

The jury rendered a verdict for the defendant.