F. W. Myers & Co. v. United States

Second Circuit

F. W. Myers & Co. v. United States

163 F. 53, 89 C.C.A. 284, 1908 U.S. App. LEXIS 4535

CourtCourt of Appeals for the Second Circuit

DecidedApril 14, 1908

DocketNo. 157 (1,810)

StatusPublished

Cited by2 cases

This text of 163 F. 53 (F. W. Myers & Co. v. United States) is published on Counsel Stack Legal Research, covering Court of Appeals for the Second Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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F. W. Myers & Co. v. United States, 163 F. 53, 89 C.C.A. 284, 1908 U.S. App. LEXIS 4535 (2d Cir. 1908).

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Opinion

NOYES, Circuit Judge.

The merchandise in question is ground corundum ore. The government contends that it comes by similitude within paragraph 419 of the tariff act (Act July 24, 1897, c. 11, § 1, Schedule N, 30 Stat. 191 [U. S. Comp. St. 1901, p. 167'4]):

“Emery grains, and emery manufactured, ground, pulverized or refined, one cent per pound.”

The importers claim that it is free of duty, as manufactured sand, under paragraph 671:

“■* * * sand, crude or manufactured, not otherwise provided for in this act.”

Corundum is “alumina, or the oxide of the metal aluminum, as found native in a crystalline state.” Century Dictionary. Emery is “granular corundum, more or less impure, generally containing magnetic iron.” Century Dictionary. Similar definitions appear in other authorities, and it cannot be questioned that emery is merely an impure grade of corundum, or that emery and corundum are used for the same purposes. Corundum is certainly similar to emery. In fact, it is almost the identical article. It was properly assessed lor duty as emery under the similitude clause, unless the importers’ contention that it actually is sand be correct.

[54]*54Definitions of the word “sand” may be found sufficiently broad to-include any mineral when reduced to fine particles. Other definitions limit the term to fine particles of stone, and in ordinary use it is confined to fine particles of silicious stone; common sand consisting almost entirely of silica. The decision of this case, however, does not require us to accurately define the word “sand.” We are rather called upon to say what it does not include, as used in the tariff act, than what it does include. Obviously the word as so employed does not include gold dust or any of the precious metals when reduced to fine particles. Almost equally clear is it that the baser metals — e. g., iron or zinc— when ground would not commercially be called sand; and we think it also follows that the term is inapplicable to any metalliferous mineral, although it be in comminuted fragments. Corundum is a mineral of this character. It is an ore, rather than a mere stone or rock, and, in our opinion, does not become manufactured sand when ground.

The decision of the Circuit Court is affirmed.

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NOYES, Circuit Judge.

The merchandise in question is ground corundum ore. The government contends that it comes by similitude within paragraph 419 of the tariff act (Act July 24, 1897, c. 11, § 1, Schedule N, 30 Stat. 191 [U. S. Comp. St. 1901, p. 167'4]):

“Emery grains, and emery manufactured, ground, pulverized or refined, one cent per pound.”

The importers claim that it is free of duty, as manufactured sand, under paragraph 671:

“■* * * sand, crude or manufactured, not otherwise provided for in this act.”

Corundum is “alumina, or the oxide of the metal aluminum, as found native in a crystalline state.” Century Dictionary. Emery is “granular corundum, more or less impure, generally containing magnetic iron.” Century Dictionary. Similar definitions appear in other authorities, and it cannot be questioned that emery is merely an impure grade of corundum, or that emery and corundum are used for the same purposes. Corundum is certainly similar to emery. In fact, it is almost the identical article. It was properly assessed lor duty as emery under the similitude clause, unless the importers’ contention that it actually is sand be correct.

[54]*54Definitions of the word “sand” may be found sufficiently broad to-include any mineral when reduced to fine particles. Other definitions limit the term to fine particles of stone, and in ordinary use it is confined to fine particles of silicious stone; common sand consisting almost entirely of silica. The decision of this case, however, does not require us to accurately define the word “sand.” We are rather called upon to say what it does not include, as used in the tariff act, than what it does include. Obviously the word as so employed does not include gold dust or any of the precious metals when reduced to fine particles. Almost equally clear is it that the baser metals — e. g., iron or zinc— when ground would not commercially be called sand; and we think it also follows that the term is inapplicable to any metalliferous mineral, although it be in comminuted fragments. Corundum is a mineral of this character. It is an ore, rather than a mere stone or rock, and, in our opinion, does not become manufactured sand when ground.

The decision of the Circuit Court is affirmed.

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163 F. 53, 89 C.C.A. 284, 1908 U.S. App. LEXIS 4535, Counsel Stack Legal Research, https://law.counselstack.com/opinion/f-w-myers-co-v-united-states-ca2-1908.

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