Lottimer v. Smythe

15 F. Cas. 929, 17 Int. Rev. Rec. 12, 1871 U.S. App. LEXIS 1727

Opinion

“WOODRUFF, Circuit Judge

(charging jury). The controversy between the parties to this suit is said to be, and no doubt is of importance. An importance extending beyond the small amount which is involved in this particular action. It is important so far as the government is concerned, because it affects the revenue derivable from importations, which are shown on this trial to be of a very considerable amount. It is important, so far as the plaintiff and other importers are concerned, because it affects the amount which they are to pay to the government on importations of large quantities of goods. It is also proper to say that it is a controversy which, although it involves a conflict of interest and a conflict of opinion, is to be viewed not as hostile in any other sense. The government asks of its citizens and residents who import articles of foreign growth and manufacture, that they contribute to the revenue of the government, whatever by law is required; tne government should seek, and I trust its officers do seek that and nothing more; and the defendants I trust, as citizens, on their part are willing to pay what the law requires. They ought not to be required and are justified in not expecting to be required to pay more. And. therefore, when a difference has arisen between the government officers ai.d the defendants as to what is the true amount to be pain, it is proper calmly and dispassionately to consider what the government has a right to require, and what it is the duty of the merchants to pay. Upon such a conflict of opinion (and I trust in the spirit I have suggested to you) me plaintiffs here have brought their action to recover back what they claim to be an excess of duty exacted from them by the defendant, when in the office of collector of this port, upon importations of crapes. It has been correctly stated that when the defendant in his official position required, as a condition of giving up the government control and custody of the plaintiffs’ goods, that they should pay a sum of money which was assessed thereon, and the plaintiffs objected and protested; and complied with all the proper formalities (which are not now called in question) but submitted and paid, the defendant receiving the plaintiffs’ money is bound to justify his exaction; and in this case the defendant has the burden of showing to you, so far as you are called upon to pass upon the facts, that the exaction that he made was a lawful exaction. He seeks to do this by appealing to the act of congress, which has been repeatedly adverted to in your hearing, and he claims that under the law the exaction which he made was not more than was due to the government which in that behalf he represents. The clause of the statute referred to is the section and paragraph which imposes on all dress and piece silks, ribbons and silk velvets of which silk is a component material of chief value, CO per cent, ad valorem. I understand the defendant or his counsel to rest his justification solely upon that language, and even upon a few words of that language “on all piece silks;” while on the other hand the plaintiff insists that the language "piece silks” does not describe the goods in question at all, and that although they were subject to duty, it is to another duty, at another rate per cent, described in a subsequent clause of the section “on all manufactures of silk, of which silk is the component material of chief value.” That presents in very broad, general terms the controversy between these parties, namely, whether the goods that were imported by the plaintiff and which were the subject of the exaction complained of are “piece silks” within the meaning of the first-named clause of this statute, or whether, being manufactured of silk, as it is conceded they are, they are without that description and left to be included in the more general final summing up of the section under the terms “all manufactures of silk not otherwise provided for.”

In general the construction and effect of a statute devolves upon the court as matter of law. But sometimes the subject to which the statute relates is of such a nature that a knowledge of facts not appearing in the statute is necessary in order to a just application of the terms of the act — facts which the court cannot judicially know, and which it is for the jury to determine upon the evidence. In other words if there were nothing in the statute before us that involved anything but that which the tribunals of justice were bound judicially to know and take cognizance of, no question could arise which would involve an inquiry by the jury. But it is true of some statutes, and especially or more frequently true of statutes regulating imports that there should be a knowledge of extrinsic facts outside of the statute, in order to give an interpretation and application of the statute to the subject matter of the controversy. That leads to the condition in which this case now stands. . The more general question, as I stated to you, is whether this statute imposes a duty- of 60 per cent, upon these goods? The court can interpret the statute when the facts are ascertained; hut the statute employing terms the meaning of which the court does not necessarily know, a question of fact arises which is brought here for your determination. That question of fact has been correctly stated to you by both the counsel: Are the goods which were the subject of the exaction now complained of “piece silks'1 in the sense in which that term is used in the statute, or are they left unprovided for by that language, and therefore do they fall within the concluding paragraph “manufactures of silk not otherwise provided for.” I say that is the question, and it is to be answered by an inquiry couched in a somewhat different phrase — are the goods in question “piece silks?” Are they included within the terih “piece silks” according to the known commercial use of these terms. The statute uses these terms in their commercial sense. Statutes regulating duties on imports are intended to regulate and control or affect trade and commerce, and are addressed not merely to revenue officers but to merchants and dealers whose interest and whose business are to be affected by those laws — those who import and deal in the subjects upon which duties are imposed — and therefore descriptive terms employed in such statutes are to be taken according to their known signification in trade and commerce. But in reference to this particular case another observation and another rule becomes important; for 1 understand it to be claimed on the one side and conceded upon the other that the term “piece silks” is not in commercial use as a technical designation of any silks whatever. Another rule therefore becomes important in this particular case, viz., that when general terms are used the terms are to be taken and applied in their ordinary and comprehensive meaning unless it is shown (as I understand it is not claimed to be shown in this instance). that they have in their commercial use acquired a special and restricted meaning. That is to say if “piece silks” is a term of general meaning in its ordinary acceptation and it be not shown that it is a term used in commerce to designate anything save only that the goods are silks, then it is to be taken in its general and natural signification to embrace all silks imported in the piece. I understand it to be also claimed on the one hand and conceded on the other that the term as used in the statute embraces all silks manufactured and imported in the piece, and as distinguishing goods thus imported from goods that are imported in a set form or pattern adapted to a particular and specific use. I understand the counsel for the plaintiff, and in this he exhibits great candor and fairness towards the defendant, to concede that the term “piece silks” does mean silks imported in the piece, and that it does not describe distinctively any kind of silks so imported.

Mr. Curtis. Any one kind.

The Court. Any one kind of silks so imported; and further, that in commercial language there are no silks known as “piece silks.” I understand the counsel even to go another step, and there is no doubt about it, that the goods in question are made of silk and are imported in the piece. Now, gentlemen, in this view of the meaning of the term “piece silks” and the absence of any known technical meaning to that term in trade or commerce, I feel constrained to say that it includes all silk goods made and imported in the piece according to its general and its ordinary signification, and that it therefore embraces crape, unless you are satisfied that crapes in trade and commerce— among men concerned in the business of importing and dealing in crape, are not known as silks. Unless crapes are shown to your satisfaction not to be known as silks then (under the concession that crape is imported in the piece and is made of silk), crapes fall within the designation of piece silks and were liable to the duty exacted by the defendant. The defendant on this subject, as you will have perceived, claims, in relation to this term “crape,” that these goods, the subject of this importation, are known in trade and commerce as a particular kind of silk, and that the term “crape” is a term of discrimination among silks and nothing else; that although it may be true that popular language (used by the ordinary public in speaking of these goods) employs the term “crape” and nothing else, yet that it is so employed only as a means of discrimination between that and other kinds of silk goods, and that although the consumer when he wants that kind of goods inquires for crape, he does what the consumer does -who wants satin, viz.: he inquires for satin; just as also when the consumer wants taffeta, he asks for it by its specific name, and not by its general designation, silk; when he wants gros de nap, he asks for gros de nap; when he wants canton crape, he asks for canton crape, and so through all the long list of silk goods imported in the piece which it is not worth while, nor indeed is it in my power to enumerate. The claim is, that the term “crape” is like the terms “taffeta” “gros de nap,” “poult de soit,” “canton crape,” and various others that have been named here. That although these are distinctive terms, they are distinctive only as a discrimination between kinds of silk, according to the use of that term among importing merchants and those who deal in them, and those to whom the tariff laws are addressed. That they are not used as definitions withdrawing them from the more general term silks as it is used in this country; but that each and all of them, whether designated by one name or the other, are shown by the testimony to be known by those who are engaged in the busi ness of importing and dealing in these goods as silks, and each is so known as much as either of them. That presents I think with distinctness and with as much clearness as at present I can. the view which the defendant takes of this subject — that the goods are imported, that they are made of silk, that they are known among commercial men as silks and are imported in the piece, and that although it is true as appears from the evidence that they are more popularly known as “crape,” as another kind of silk is known as “taffeta,” and another kind as “gros de nap,” and another kind as “canton crape,” and so on through the list, yet that these are subordinate terms which have grown into use for_ the reason that persons wishing to get a specific kind of silk employ the term which is best suited to indicate tne specific kind of silk goods which they want, and hence have passed into popular use, which is not to be made a test of the interpretation of the statute. On the other hand the plaintiffs insist that crapes are not known in trade and commerce at all as silks; and the counsel for the plaintiffs are perfectly correct when they insist that the question to be determined here does not depend on the mere fact that crapes are made of silk, or that they are made chiefly of silk combined with gums, which the witnesses say are used for stiffening these and other silks; that if the article is not known in trade and commerce under the designation of silks, then it is quite immaterial for the purposes of the claim of the plaintiffs here whether they are made of silk or not. The amount of duty is to be determined by the commercial designation. I say on that subject that the claim of the plaintiffs is entirely correct, nor is it in conflict with the claim which I have stated on the part of the defendant Both come to the question whether these goods are known in trade and commerce, and especially among those who import and deal in them, as silks or not. That presents precisely the question of fact; it brings this controversy down to a very narrow point, which you are to pass upon in view of the evidence, which 1 shall not recapitulate.

It is claimed by the defendant that before the particular act of 1804 was enacted, these goods were known and imported as silks, and duty paid on them as silks, and that these plaintiffs concurred in the construction which was given to the previous law, and without objection paid thé duty upon them as silks. You have heard the comments of counsel upon both sides in regard to that subject. The plaintiffs are not concluded by it. If they were under a mistake, it could be corrected. It is not claimed on the part of the defendants that the plaintiffs are concluded, and it is insisted on the part of the plaintiffs they are not. The evidence was relied upon as importing to your comprehension and your judgment that crapes were silks, and that they were so understood, and that the plaintiffs paid duty thereon accordingly, and that it was only when the subsequent act was passed, changing the phraseology of the statute and raising a question of a somewhat different character in relation to the amount of duty, that the suggestion has arisen which has led to the present claim. So in regard to the testimony of various witnesses; there is some conflict. Some witnesses called by the plaintiff say that these goods were not known as silks, and that for many years they were not themselves aware that they were made of that material; while, on the other hand, there is the testimony of some importing merchants in New York and Boston, who tell you that, according to their understanding, and in trade and commerce, these goods are silks, —not only manufactured of silk, but that they have always been known in trade and commerce as silks. It is not for me to settle the question of fact in dispute between witnesses, or between parties, or to indicate to you any conclusion which you should draw from the evidence. It is purely a question for you. If the goods in question are not in commercial language known as silks, the plaintiff is entitled to recover; but if they are, the defendant is entitled to your verdict.

Verdict for the plaintiff.