In re Smith

55 F. 476, 1893 U.S. App. LEXIS 2572

• Court: U.S. Circuit Court for the District of Southern Ohio
• Decided: April 14, 1893
• Docket: No. 4,488
• Status: Published

Opinion

SAGE, District Judge.

Tills case is before the court upon the application of the surveyor and acting collector of customs, Cincinnati, Ohio, for a review of the decision of the hoard of general appraisers, rendered the ::TM of October, 1891, in the matter of the protest of Mihalovitch, Fletcher & Co. against the decision of the surveyor of customs at Cincinnati, Ohio, as to the rate and amount of duties chargeable on certain fancy flint glass bottles imported per Lady Palmer, July 7,1891.

The merchandise in question was classified as “flint-glass ware,” under paragraph 106, Act October 1, 1890, (2d Ed., Supp. Rev. St. U. S. p. 817,) and duty was assessed upon it at 60 per cent, ad valorem. It- appears from the opinion of the general appraisers that the claim of the importers was that the articles were bottles, subject to duty under the provisions of paragraph, 103. The general appraisers, upon an examination of samples of the articles, found that they won1 hollow vessels molded from flint glass, translucent, and of (.wo designs,---one, of the capacity of less than one pine, and move than one quarter of one piinu, representing a scantily-attired female, standing erect, the head separable from the body, and fitting closely on a narrow neck attached thereto, ¡1ms forming a cover or stopper dieraim*; the other, of the capacity of more than one pint, rapreseniing a woman clothed, and in a silting position. This article was aceonipanif'd by a small bamboo rocking chair, in which the figure tras to be placed. The rocking chair was separately invoiced and rated foi' duty. The head of this figure also formed a stopper ¡hereíou The appraisere, upon an inspection of lítese articles, decided Iliai. they were designed lor holding liquids, and that they were flint-glass hot i les of iba capacity of 7J- and 18¿ fluid ounces, respectively, dutiable under the appropriate provisions of paragraph 103. They therefore sustained the protest. The surveyor of customs prays for the reversal of the decision of the board of general appraisers, and that the assessment of 60 per cent, ad valorem, under paragraph 105, be affirmed.

hTo testimony wan presented, either to the surveyor of customs at Cincinnati, or to the general appraisers. Upon, the hearing before this court, witnesses were, by consent, examined; and the ITnítéd States appraiser at Cincinnati, who was for many years before entering upon the duties of his office a wholesale druggist, testifies that the commercial designation of the articles in question is glassware, or bar ornaments, and that they were not, as a. matter of fact, used for holding liquor. "Upon an inspection of the articles it appears that the neck of the body of each, upon which the head may Toe fitted, is a hollow cylinder, in which a cork may be inserted as a. stopper, and that it does not differ in shape from the neck of a bottle. A dealer in glassware and bottles, of 30 years/ experience, testified that he had dealt In bottles of similar character, and that they were called “bar bottles;” that lie had seen them filled with liquor, but that they were not suitable for carrying about. A druggist of 56 years’ experience testified that he did not know the trade designation. but that in Ms opinion they were not bottles. A wholesale dealer in glassware testified that he had always regarded articles such as those in question as bar ornaments, not as bottles. These were the witnesses examined on behalf of the surveyor. Mihalovitch, of the firm of Mihalovitch, Fletcher & Go., testified that he had been a dealer in liquors about 20 years; that the order in this case was for bottles, from Germany; that the commercial designation of the articles in question was “fancy bottles;” and that his firm had been in the habit of filling and shipping them from Cincinnati all over the TJnite'd States. Another wholesale dealer testified that they were known to the trade as “fancy bottles,” and had long been known as such; and that among his earliest recollections was that of seeing one representing Napoleon Bonaparte. The testimony, so far as it is an expression of the opinion of the witnesses whether the articles are bottles or ornaments, is hardly competent. It is competent to prove what is the commercial designation, known to the trade, of the merchandise in question. But that is quite different from the expression of an opinion by a witness that the article falls within or without the class claimed, because that is a question for the jury or for the court. Greenleaf v. Goodrich. 101 U. S. 278; Wills v. Russell, 100 U. S. 621; Recknagel v. Murphy, 102 U. S. 197. The weight of the testimony of these witnesses is in favor of the conclusion reached by the general appraisers.

The application for review malees the claim that a duty of 60 per centum ad valorem should be assessed under the following provisions of paragraph 105: “Flint and lime pressed glassware, not cut, engraved, painted, etched, decorated, colored, printed, stained, silvered, or gilded.” But these articles are not pressed glassware; they are molded, which brings them within an express provision of paragraph 103. The claim was made upon the hearing that, if they did not come within the provisions of paragraph 105, they did fall within the provisions of paragraph 106, which includes “all articles of glass, cut, engraved, painted, colored, printed, stained, decorated, slivered, or gilded, not including plate glass silvered or looking-glass plates.” But it appears from the testimony of the United States appraiser as well as for an inspection of the articles, that they are etched, — the appraiser testifies, — by the use of fluoric acid. They are therefore expressly excluded from the operation of paragraph 106, which does not mention etched glass. The application, whether it be considered upon the testimony, or upon the construction of the paragraphs referred to, must he denied, and the entry will be accordingly.