Zucker & Levett Chemical Co. v. Magone

U.S. Circuit Court for the District of Southern New York

Zucker & Levett Chemical Co. v. Magone

37 F. 776, 1889 U.S. App. LEXIS 2108

CourtU.S. Circuit Court for the District of Southern New York

DecidedJanuary 31, 1889

StatusPublished

Cited by3 cases

This text of 37 F. 776 (Zucker & Levett Chemical Co. v. Magone) is published on Counsel Stack Legal Research, covering U.S. Circuit Court for the District of Southern New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Zucker & Levett Chemical Co. v. Magone, 37 F. 776, 1889 U.S. App. LEXIS 2108 (circtsdny 1889).

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Opinion

Lacombe, J.

(after stating the fads as above.) It appears by the statute (act of 1883) that congress has provided, in the chemical product schedule, for “colors and paints, including lakes, whether dry or mixed, or ground with water or oil, and not specially enumerated or provided for in this act, twenty-five per centum ad valorem.” Inasmuch as the tariff act immediately thereafter proceeds to deal with bone-black, ocher, and umber, it might perhaps be supposed that congress intended to restrict the exception to that schedule: but they have not said so, and to put that inter]¡rotation upon the act would be legislation, and not construction. Within the same tariff act, however, there is a provision for “polishing powders of every description, by whatever name known, including Frankfort black, and Berlin, Chinese, fig, and wash blue, twenty per centum o,d valorem.” It appears by the evidence here that these goods, although painters’ colors, and used as such, are also used as polishing powders, and are so used to a substantial extent. It is not necessary to show that their predominant use is as polishing powders, provided it appears that there is at least a substantial use of this kind of article for that particular purpose. That being so, the acts, so far as these articles are concerned, should ho interpreted so as to read, “colors and paints, except such as are used as polishing powders.” By that I do not intend to imply that congress meant that each particular importation should be followed out, and its use traced, and the question as to whether it should pay duty or not disposed of upon an examination into the function which that particular importation subserved; but that., if a particular class of articles was used, and was suitable for usorJ;or the purpose named at the time that the act was passed, that is sufficient. There [778]*778is no evidence here tending to show that the state of affairs is any different now from what it was when congress legislated. Therefore, as there has been evidence here to show that there was a substantial use of these varieties of painters’ colors as polishing powders, I think they are within the language of paragraph 479, which is itself an exception from the eighty-seventh paragraph. I shall therefore direct a verdict for the plaintiff.

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Lacombe, J.

(after stating the fads as above.) It appears by the statute (act of 1883) that congress has provided, in the chemical product schedule, for “colors and paints, including lakes, whether dry or mixed, or ground with water or oil, and not specially enumerated or provided for in this act, twenty-five per centum ad valorem.” Inasmuch as the tariff act immediately thereafter proceeds to deal with bone-black, ocher, and umber, it might perhaps be supposed that congress intended to restrict the exception to that schedule: but they have not said so, and to put that inter]¡rotation upon the act would be legislation, and not construction. Within the same tariff act, however, there is a provision for “polishing powders of every description, by whatever name known, including Frankfort black, and Berlin, Chinese, fig, and wash blue, twenty per centum o,d valorem.” It appears by the evidence here that these goods, although painters’ colors, and used as such, are also used as polishing powders, and are so used to a substantial extent. It is not necessary to show that their predominant use is as polishing powders, provided it appears that there is at least a substantial use of this kind of article for that particular purpose. That being so, the acts, so far as these articles are concerned, should ho interpreted so as to read, “colors and paints, except such as are used as polishing powders.” By that I do not intend to imply that congress meant that each particular importation should be followed out, and its use traced, and the question as to whether it should pay duty or not disposed of upon an examination into the function which that particular importation subserved; but that., if a particular class of articles was used, and was suitable for usorJ;or the purpose named at the time that the act was passed, that is sufficient. There [778]*778is no evidence here tending to show that the state of affairs is any different now from what it was when congress legislated. Therefore, as there has been evidence here to show that there was a substantial use of these varieties of painters’ colors as polishing powders, I think they are within the language of paragraph 479, which is itself an exception from the eighty-seventh paragraph. I shall therefore direct a verdict for the plaintiff.

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37 F. 776, 1889 U.S. App. LEXIS 2108, Counsel Stack Legal Research, https://law.counselstack.com/opinion/zucker-levett-chemical-co-v-magone-circtsdny-1889.

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