Salomon v. Robertson

41 F. 517, 1889 U.S. App. LEXIS 2654

• Court: U.S. Circuit Court for the District of Southern New York
• Decided: January 27, 1889
• Status: Published

Opinion

Lacombe, .1.,

(orally.) The question before us is — How shall this article of importation.(white beans) be classified for purposes of duty? The first question that is always put in a case of that kind is, what is the commercial designation of the article? The answer to that question in this case, by undisputed testimony, is that it is known in trade and commerce as “beans,” or more specifically as “white beans,” “medium beans,” “black beans,” or what you will; it is known commercially only as “ beans, ” and the particular article here as “ white medium beans. ” Having found out what the commercial designation of the article is, the next step is to turn to the tariff, and find that designation there. Unfortunately in this case, we do not find the word “beans” anywhere in the tariff act, save in a single section, (paragraph 94,) which the supreme court has held does not apply to this article at all, but to the kind of beans which have been illustrated in this case by the castor-bean, the tonka-bean, the nux vomica bean, and other beans which are not edible. Inasmuch as this article which is commercially known as “beans” is not found covered by that commercial expression in the tariff, we have to discover, if we can,' by what other expression it is covered, if at all. Looking through the tariff for words which may properly describe the article, We find the word “seeds;” and this is undoubtedly the seed of the field bean. Botanically, it is a seed, and in the common use of language when it is spoken of in connection with the purpose of propagation, it is a seed, and would be so described. Looking further along in the act, we find the word “vegetables,” and these articles, when they are used as food by man or by beast, would be referred to in every-day speech as “vegetables.” There are, then, two words in the act which, when interpreted according to their common every-day use, are each of them sufficiently broad to cover the particular article here. The next question is whether the every-day use of the term has been modified by any commercial usage. The proof here, even on the part of the plaintiffs, is— I refer particularly to the testimony of Messrs. Wakeman and Allies— that there is no difference between the commercial and the ordinary meaning of the words “seeds” and “vegetables.” A seed is a seed, and a vegetable is a vegetable, say the witnesses, whether in commercial language or in every-day life. Now the supremo court have held over and over again that where words are not used technically, or have not been wrenched from their ordinary meaning by commercial usage, their interpretation is for the court. That same tribunal has, moreover, in this very case, interpreted both those terms, “seeds” and “vegetables.” Robertson v. Salomon, 130 U. S. 412, 9 Sup. Ct. Rep. 559.

As there are two words in the tariff act, each broad enough to cover the article, it only remains to determine under which it shall be classified for duty, whether as a seed or as a vegetable. Turning to the decision of the supreme court, (130 U. S. 412, 9 Sup. Ct. Rep. 559,) I cannot escape the conviction that whatever the phraseology of the statute may now be, or whatever it may have been before the amendment of 1883, it was the clear understanding of the supreme court that such determination must be according to the use of the article. This seems to be quite sharply indicated by the phraseology of the opinion. Thus in one place it is said that “as an article of food on our tables * * * they are used as a vegetable.” Elsewhere in the opinion it is held error in the circuit court not to allow the defendant to prove “the designation of beans a’s an article of food,” the supremo court saying that “the common designation, as used in every-day life, when beans are used as food, (which is the great purpose of their production,) would have been very proper.” Why it would have been proper to introduce testimony as to how the beans were called when they were used as food, I tail to see, unless it was on the principle that the use of the article was to determine its classification.

The use of an article is a question of fact, and I should send this case to the jury, were it not for the testimony of the plaintiff, which is that, as to this particular importation, the affidavit which he made upon the back of the entry is a true statement; that affidavit stating that the beans are to be used exclusively as food. Eor that reason I shall direct a verdict for the defendant. Verdict accordingly.