United States v. Wells

77 F. 411, 23 C.C.A. 210, 1896 U.S. App. LEXIS 2257

• Court: Court of Appeals for the Second Circuit
• Decided: December 8, 1896
• Status: Published

Opinion

PEE CURIAM.

The collector exacted duty under the provisions of paragraph 46 of the act of October 1, 1890, which reads as follows :

“46. Seal, herring, whale and other fish oil, not specially provided for in this act, eight cents per gallon.”

The importers protested, claiming that the merchandise was free of duty, under paragraph 599 of the same act, which provides as follows :

“599. Grease, and oils, suc-h as are commonly used in soap-making or in wire-drawing, or for stuffing or dressing leather and which are fit only for such uses, not specially provided for in this act.”

The decision of the supreme court in Magone v. Heller, 150 U. S. 70, 14 Sup. Ct. 18, is controlling in this case. It is entirely plain that it was the intention of congress that any oil which was commonly used in the arts for the purposes designated in paragraph 599, and was fit only for such uses, should come into this country free of duty, although it might he scientifically classed as one kind of an article; the name of which appears in some of the duty schedules, or is spoken of in commerce by that name. The manufacturing use must prevail over the scientific or commercial nomenclature. The evidence abundantly proves that Japanese fish oil, such as was imported in this case, was commonly used for the purposes named in paragraph 599, and is fit only for such uses. The board of general appraisers, it is true, find that such oil is used “possibly for other purposes’"; but, as there is no evidence found in the record to sustain this finding, it must be assumed that it is a mere guess of the board, as the language used in the finding sufficiently indicates. The witnesses who dealt in the article, and were familiar with its uses, all testified that they knew of no other purpose that it has ever been used for.

The decision of the circuit court is affirmed.