Record and brief — Henry A. Smythe, Collector of the Port of New York, Plaintiff in Error, vs. Henry C. Fisk, Thomas R. Clark, and Thomas J. Flagg
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TRANSCRIPT OF RECOR
SUPREME COURT OF THE UNITED STATES
No. 399.
HENRY A. SMYTHE, COLLECTOR OF THE POR? OF NEW
YORK, PLAINTIB¥ IN ERROR,
VS.
HENRY C. FISK, THOMAS R. CLARK, AND THOMAS J. FLAGG.
IN ERROR TO THE CIRCUIT COURT OF THE UNITED STATES FOR THE
SOUTHERN DISTRICT OF NEW YORK.
FILED APRIL 6, 1874.
a8
EEE SP Ses Spe
SUPREME COURT OF THE UNITED STATES.
No. 399.
HENRY A. SMYTHE, COLLECTOR OF THE PORT OF NEW
YORK, PLAINTIFF IN ERROR,
S.
HENRY C. FISK, THOMAS R. CLARK, AND THOMAS J. FLAGG
IN ERROR TO THE CIRCUIT COURT OF THE UNITED STATES FOR THE
SOUTHERN DISTRICT OF NEW YORK.
INDEX.
Original. Print
Writ of error .. a a ‘ — ee re ee Ne Cee ee ]
Judgment roll 9
.L OF EXCEPTIONS,
Testimony of Thomas R. Clark
Exhibit A
Appeal of Fisk, Clark, and Flagg
Cross-examination of Thomas R. Clark
Testimony of J. A. Harrison
Cross-examination of J. A. Harrison. .....
Redirect examination of J. A. Harrison
Testimony of James A. Connor
Cross-examination of James A. Connor
meeaest eunmtination of James A. Commer 2... occa oc ccccwc cscs cece ccscsce
a Gn 2, MOON dg uid detinne sons ensencesedtenend suman
Cross-examination of David H. Ackerman
ee GE nid cince bane cinnid on we tne neck ueeides aeenneeann
Charge of the court
ec cw ene Ab ObM dine dein dene Dede eke Ome eee mee eee
comment ef counsel te bill of exceptions. ...... .cccoc cecccs cocs csccessesese
Assignment of errors
Citation
H. A. SMYTHE, COLLECTOR, ETC., VS. H. C. FISK ET AL. 1
al UNITED STATES OF AMERICA, Ss:
The President of the United States of America, to the judges of the
circuit court of the United States tor the southern district of New
York, greeting:
Because in the record and proceedings, .as also in the rendition of the
judgment of a plea which Is in said eireuit court, before vou, or some of
you, between Henry A. Smythe, plaintiff in error, and Henry C. Fisk,
Thomas R. Clark, and Thomas J. Flagg, defendants in error, a manifest
error hath happened, to the great damage of the said Henry A. Smythe,
as is Said, and as appears by complaint: We, being willing that
such error, if any hath been,: should be duly corrected, and full and
speedy justice done to the parties aforesaid in this behalf, do command
you, if judgment be therein given, that then, under your seal, distinetly
and openly, you send the record and proceedings aforesaid, with all
things concerning the same, to the justices of the Supreme Court of the
United States, at the Capital, in the city of Washington, together with
this writ, so that you have the same at the said place, betore the justices
aforesaid, on the second Monday of October, 1874, that, the record and
proceedings aforesaid being inspected, the said justices of the Supreme
Court may cause further to be done therein, to correct that error, what
of right and according to the law and custom of the United States
ought to be done.
- Witness the honorable Nathan Clifford, associate justice of the
Supreme Court of the United States, this sixteenth day of October, in
the year of our Lord one thousand eight hundred and seventy-three,
and of the Independence of the United States the ninety-eighth.
KENNETH G. WHITE,
Clerk of the Circuit Court of the United States of America for the
Southern District of New York, in the Second Cireutt.
The foregoing writ of error is allowed.
SAML BLATCHFORD, D. J.
OCTOBER 16th, 1875.
UNITED STATES OF AMERICA,
Southern Dist. of New York, ss:
I, Kenneth G. White, clerk of the cireuit court of the United States
of America tor the southern district of New York, in the second circuit,
by virtue of the foregoing writ of error, and in obedience thereto, do
hereby certify that the following pages, numbered from one to 42, inclusive,
contain a true and complete transcript of the record, and proceedings
had in said court in the case of Henry A. Smythe, plaintiff in error,
against Henry C. Fiske et al., detendants in error, as the same remain
of record and on file in said office.
In testimony whereof I have caused the seal of the said court to be
hereunto affixed, at the city of New York, in the southern district
of New York, in the second circuit, this twenty-sixth day of March,
in the year of our Lord one thousand eight hundred and seventy-four,
and of the Independence of the said United States the ninety-eighth.
[SEAL. | KENNETH G. WHITE, Clerk.
(Indorsed :) Henry A. Smythe, pl’ff in error, vs. Henry C. Fisk et al.,
det’t in error. Writ of error. Due service of a copy of the within
writ of error hereby admitted. New York. Tiled Oct. 21, 1873.
REC, 399—1
= eA.
1 U.
HENRY G. FISKE.
Pleas before the judge of the circuit court of the
HEN]
> ,
t
SMYTHE,
COLLECTOR, ETC.,
S. cireuit eourt for the southern district
1S. i. 'U.
THOMAS Kt. CLARK, AND }
Thomas J. Flagg
vs,
A. SMYTHE.
\
(
\
FISK ET
United
AL.
of New York.
States of
America for the southern district of New York, in the second circuit,
at the United States
April term, A. D. 1872, to wit, of the eighth day of April,
Witness the honorable
court.
SOUTHERN
State of
T
DISTRICT
Lewis B.
OF
N E W
W oodraff,
KENNETH G.
YORK, ss:
eourt buildings in the city of New York, of the
A. D, 1872.
judge of the said cireuit
WHITE, Clerk.
Be it remembered that heretofore, to wit, on the second day of
December, A. D. 1867, an action was commenced in the supreme
court of the city and county of New York, according to the laws of the
New
York, in
Thomas J. Flagg, the plaintiffs,
of the port of New York,
favor of Henry G.
the defendant,
to recover
Fisk, Thomas R. Clark, and
against Henry A. Smythe, the collector
moneys claimed to
have been illegally exacted by said defendants as and for duties upon
imports,
Decem!)
which
er,
A. D.
for further prosecution and trial,
said
action
was thereafter,
1867, removed in due form of law,
into this court
on the'twentieth day
by writ of certiorari,
. by the defendant, accord-
ing to the act of Congress in such cases made and provided,
And the said plaintiffs, according to law,
by Benjamin L.
of
Ludington,
their attorney, complained of the defendant herein in a_ plea of
3,
wv
second day of December,
trespass on the case, for that whereas the said defendant, on the
A. D. 1867, at the city of New York, in
the southern district aforesaid, was indebted to said plaintiffs in the sum
of two thousand dollars, lawful money of the United States of America,
for money before that time lent and advanced by the said plaintiffs to
the said detendant, and at the special instance and request of said de-
fendant, and for other money by the said defendant before that time had
and
indebte
there
d, the
received to and for
said defendant.
the use of the said plaintiffs ;
and, being
SO
in consideration thereof, afterwards, to wit,
on the same day and year, at the place aforesaid, undertook, and then and
faithfully promised the said plaintiffs, well and truly to pay unto
the said plaintiffs the said sum of money in this court mentioned when
the defendant should be thereunto afterwards requested ;
4. whereas, also, the said defendant afterwards, to wit, on the same
day and year and at the place aforesaid, accounted together with
the said pl: iintiffs of and concerning divers other sums of money betore
that time due and accruing from the said defendant to the said pl: untifts,
and then and there being in arrear and unpaid, and upon such account-
ing the said defendant then and there was found to be in arrear
indebted to the said plaintiff in the further
of lawful money as aforesaid ;
lars
and, being so found in arrear
and
and
sum of two thousand dol-
and
indebted to the said plaintiffs, the said defendant, in the consideration
thereof, afterwards, to wit, on the Same day and year and at the place
aforesaid, undertook, and then and there faithfully promised the said
plaintiffs, well and truly to pay unto the said plaintiffs the said sum of
money last mentioned when the said defendant siiould be thereunto
afterwards requested :
‘>
H. A. SMYTHE, COLLECTOR, ETC., VS. H. C. FISK ET AL. o
5 Nevertheless the said defendant (although often requested) has
not yet paid the said several sums of money above-mentioned, or
either of them, or any part thereof, to the said plaintiffs; but to pay the
Same, or any part thereof, to the said plaintiffs, the said defendant has
hitherto wholly refused, and still does refuse, to the damage of the said
plaintiffs of two thousand dollars; and thereof the plaintiffs bring suit,
— A WC.
And the said defendant, by Samuel G. Courtney, his attorney, comes
and defends the wrong and injury, We., and says that he did not under-
take and promise in manner and form as the said plaintiffs have above
3 thereof declared against him; and of this he puts himself upon the coun-
try, NC.
Therefore the issue above joined is ordered by the said court to be
tried at a cireuit court appointed to be held at the United States
6 court buildings, in the city of New York, on the first Monday of
April, A. D.1872. And now at this day, to wit, the eighth day of
April, A. D. 1872, being as yet of the said April term, before the hono-
rable Lewis Bb. Woodruff, circuit judge, at the said court buildings, came
thé said parties, by their attorneys, and the said cirenit judge, before
whom the said issues were tried, hath sent hither his record had before
him in these words, to wit:
Afterwards, to wit, on the same day and at the same place, before the
said Lewis b. Woodruff, judge of the said circuit court, come as well as
the said plaintiffs and the said defendants by their respective attorneys,
and the jurors of the jury also come, who to speak the truth in the mat-
ter within contained, being chosen, tried, and sworn upon their oaths,
do say that the defendant did undertake and promise in manner and
form as the said plaintifts have above thereof complained against
him, and they assess the damages of the said plaintiffs at one
hundred and thirty-eight dollars, over and above their costs and
charges by them about their suit in their behalf expended, and for those
costs and charges the sum of fifty-two dollars and eighty-five cents.
Therefore it is considered that the said plaintiffs do recover against
the said defendant their debt, and also one hundred and thirty-eight
dollars for their damages which they have sustained, as well on occasion
of the detaining of the said debt as for their their costs and charges by
them about their suit in this behalf expended, by the said court now
here adjudged to the said plaintiffs, and with their assent, which
S said debt, damages, costs, and charges in the whole amount to
one hundred and ninety >>; dollars, and the said defendant in
merey, XC.
Judgment signed this 24th May, 1875.
~]
RnR. E. STILWELL.
Dep. Clerk.
’
9 (Endorsed as follows:) Vol. 7, page 4. U. S. cireuit court.
Henry G. Fisk etals. vs. Henry A. Smythe. Judgment roll. Filed
May 2A. "4a
10 U. S. ecireuii court. southern district of New York.
HENRY G. FISK ET AL. }
ag’ st
HENRY A. SMYTHE. \
2
Afterwards, to wit. at a eireuit eourt., held at the ecourt-house in the
ity of New York, for the southern district of New York, on the 8th day
Cc
4 H. A. SMYTHE, COLLECTOR; ETC., VS. H. C. FISK ET AL.
of April, in the year 1872, before the honorable Lewis b. Woodruff, cir-
cuit judge, the aforesaid issue as joined between the said parties came
on to be tried by a jury for that purpose pons d empanelled and sworn,
good and lawful men; on which day came there as well the said plaintiffs
as the said defendant, by their respective attorneys aforesaid, and the ju-
rors of the jury aforesaid impanneiled to try the said issue, being called,
came also and and were then and there in due manner chosen and
1] sworn to try the said issue.
And upon the trial of the said issue the counsel for the said
plaintiffs, to prove and maintain the said issue on their part, called as a
witness THOMAS R. CLARK, who being duly sworn, did depose and say:
In the year 1868, the plaintiffs herein composed the firm of Fisk, Clark
and Flagg, and in that year the said plaintiffs made entry of a quantity
of silk neckties at the custom-house in the city of New York.
This paper now shown me, Ex. A, is the entry in which these goods are
referred to.
This paper now shown me, Ex. Bb, is the invoice in which these goods
are referred to.
The value of the neck-ties mentioned in that invoice was about sev
enty-six pounds sterling.
The article now shown me I recognize a sample of these goods.
12 These goods are known and designated in commerce as neck-
ties, and only as neck-ties.
The duty charged upon them and paid was assessed upon them as silk
scarfs at the rate of 60 per cent. ad valorem.
These goods are made by cutting them out of strips of black silk be-
ing cut on the bias, and they are then folded by an iron; the ends are
then sown by hand to keep them from unfolding.
They are cut and made wholly by hand.
The = untiffs paid sixty per ¢e ent. duty, according to the entry shown
by Ex. A., upon the neck-ties mentioned in the invoice, Ex. B.
The plaintiffs’ counsel then offered in evidence the following Exhib-
its:
D
t
‘ROR | Pl a QU IAON popyVpu Dry SHB yy HART) WS jod uy (; pokuopuy)
4} Ul PosBiv ole [|] sy IEA UL PIsOPOUl KLloppoT PUB saunas | ‘UALNI
r AL.
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"839 OC | ‘S}0 OG |
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H. A. SMYTHE, COLLECYOR, ETC., VS. H. C. FISK ET AL. r |
17 EXHIBIT C.,
OFFICE OF Fisx, CLARK & FLAGG,
No. 58 White St., New York, Oct. 9th, 1868.
HENRY A. SMYTHE, Esq., Collector :
Sir: We do hereby protest against the payment of 60 per cent. duty
charged by you on certain silk neck-ties contained in an entry made by
us at the N. Y. custom-house on the doth day of October, 1563, per
F) F-.
the steamer City of Paris—case % 1662, C ¢
We claim that the 60 per cent. duty charged by you 1s erroneous, tor
the reason that silk neck-ties as such are not specially provided for or
enumerated in any of the tariff acts. They are, however, provided tor
under and by virtue of the 22d section of the tariff act of 1561, and the
13th section of the tariff act of 1862, inclusive, which section provides a
duty of 359% on articles worn by men, women, or children, of what-
ever material composed, made up or made wholly or in part by
18 hand, not otherwise provided for.
We paid the 60 per cent. duty exacted under compulsion and
in order to get possession of our goods, and shall hold you.and the Gov-
ernment responsible for the excess demanded and received above 35%.
Very respectfully,
FISK, CLARK & FLAGG,
Per E. b. SMITH.
ExHIBIT D. W. B. M. H. R. S.
UNITED STATES OF AMERICA,
Treasury Department, September 15th, 1873.
Pursuant to the act of Congress of the 22d February, 1549, I hereby
eertify that the annexed is a true copy of the original appeai, on file in
this oftice in this Department.
kh. A. S.
In witness thereof, I have hereunto set my hand and caused the seal
of the Treasury Department to be afiixed, on the day and year first
above written.
[L. 8.] WM A. RICHARDSON,
Secretary of the Treasury.
20 OFFICE OF FISk, CLARK & FLAGG,
No. 58 White Street, New York, Oct. oth, 186s.
Hon. H. MCCULLOCH:
S1rR: We do hereby appeal to you from the payment of 60°% duty
charged by the collector of this port on certain silk neck-ties contained
in an entry made by us at the New York custom-house on the 5th day
of October, 1868, per the steamer City of Paris.
We claim that the duty on these goods should be 35 per cent. under
and by virtue of the 22d section of the tarift act 1861, and the 13th sec-
tion of the tariff act of 1862, inclusive.
Very respectfully,
(Signed) FISK, CLARK & FLAGG,
Per i2. B. SMITH.
21 All of which were admitted in evidence.
The class of goods represented by this sample are worn by men.
I have never heard them classed as ready-made clothing or in any way
but as silk neck-ties.
AORN el NN RE A A i NE ie el Rk ee ee
H. A. SMYTHE, COLLECTOR, ETC., VS. H. C. FISK ET AL.
Being cross-examined, the witness said :
Neck-ties are not always kept in ready-made clothing stores. We
import them for the furnishing-goods trade, which is a distinctive busi-
ness almost nowadays, and we import them for the purpose of selling
them to retail houses, but not at retail. They are silk, folded in this way
and ironed, turned over and pressed by hand ; afterwards the ends are
stitched.
Plaintiffs then called JAMES A. HARRISON, who, being duly sworn,
said :
[amin the employ of John M. Davies & Co., importers and deal-
22 ers in gentlemen’s furnishing goods; have been in the business
about 15 years. I have bought and sold and dealt in neck-ties
like the one exhibited. It is known in trade and commerce as a silk tie,
and never as a searf, nor as an article of ready-made clothing. A scart
is an entirely different article.
Being cross-examined, the witness said:
Our house is in the furnishing-goods business; that includes everything
in the way of under-clothing, under-shirts, drawers, half-hose, gloves,
and suspenders. We import drawers ; they are not clothing. Wemake
shirts and import under-shirts. I don’t consider them clothing. We
keep silk neck-ties and searfs. Silk searfs are made of silk in a variety of
shapes and styles, designed exclusively for wear around the neck. The
scarfs that are imported are men’s furnishing goods. Ties and
scarfs are about all that are imported for wear about the neck.
A tie is an article that the wearer ties himself about his neck,
and a searf is generally slipped on without tying. We have another arti-
cle that fits with a spring, called stocks, made here ; they were formerly
imported, but now very few are sold.
We import and dealin knit jackets used for wear between the coat
and vest, called cardigan jackets. I do not call them clothing. We
have nothing to do in our business with clothing. We import all kinds
of stockings worn by men. I should not think a man would be very
well clothed without the articles we deal in.
4)*)
at)
On his redirect examination, the witness said :
On an order for a line of scarts, I would not include neck-ties.
24 [ should tell a man who inquired for ready-made clothing at my
store that I did not keep it.
Neck-ties are not known as ready-made clothing in commerce.
Being recross-examined, the witness said:
If such a buyer should come to my store, I would try and sell him
some furnishing goods, but we would not sell them to him as ready-made
clothing. |
The plaintiffs then called as a witness JAMES A. CONNOR, who, being
sworn, sald:
[ have charge of a department in the wholesale house of A. T. Stewart
& Co., known as the lace department. In that we keep laces, ties, cra-
vats, bows, and that class of goods generally. Ready-made clothing is
not kept in that house. We dealin the article now exhibited to
25 me. Itis known and designated in the trade as a black tie. We
also deal in searts. I should not call this article a searf. A searf
differs decidedly from the samples shown me. On an inquiry by a
customer for searfs, | would not show him these ties, and if he asked for
ready-made clothing, we should tell him we didn’t have it.
H. A. SMYTHE, COLLECTOR, ETC., V<. H. C. FISK ET AL. 9
mf Being cross-examined, the witness said:
I keep varieties of silk scarfs in my department. They are made ex-
clusively for wear on the neck. I also keep what are known as bows ;
they are designed exclusively to be worn on the neck.
There are several shapes of scarfs; they are generally designed to
come down and cover the bosom. I also deal in cravats, which are a
square piece of silk, designed for wear on the neck, and generally folded
“\ by the wearer. Scarfs and ties generally come folded, but scarfs
26 sometimes come unfolded, and also cravats sometimes come ready
folded.
On his redirect examination the witness said:
I know of no other use of these articles but for wear around the
neck,
The plaintiffs then called asa witness DAVID H, ACKERMAN, who,
: being duly sworn, said:
I am in the employ of A. T. Stewart & Co., in what is known as the
lace department. Ideal there in laces, embroideries, handkerchiefs, and
gentlemen’s furnishing goods. The article now shown me is known in
trade as a black tie.
Have been 44 years in the business. If ready-made clothing were
asked for in our department I would say that we do not keep it. If I
was aSked for scarfs I would not show the article I have called a black
tie.
27 Being cross-examined the witness said:
I am with the previous witness in business, and, having heard
his examination, I agree with him in what he said about scarfs and cra-
vats.
Neck-ties, scarfs, cravats, are all designed exclusively for wear on the
neck, and generally made of silk. There are a great variety of scarfs,
differing in form. They are cut out of silk and made up. The article
Shown by plaintiffs gets its name from being made in the particular
Shape you seeit and from tying. A great many searfs also tie. The
article I have on is a Windsor cravat, tied and folded by myself.
The difference between this and the article shown by the plaintiffs is in
the stitching.
Regular scarfs come folded and stitched ready-made; some have
238 a fixed width, others you can vary the width by folding, as in the
cravat [ have on.
Ties come of various widths, from half an inch to two inches.
THOMAS CLARK, being recalled, said: |
I have computed the difference between 35 and 60 per cent. duty on
this this impertation. The difference with interest to the present time
is $138.
The plaintiffs here .ested their case, and the defendant’s counsel then
and there asked the court to instruct the jury to render a verdict for
the defendant on the following grounds:
1st. That it appeared from the evidence that the article of silk neek-
ties being nowhere specifically mentioned as suecb in the tariff acts, bore
a similitude to, was of similar texture, was designed for the same uses,
REc. 399—2
10 H. A. SMYTHE, COLLECTOR, ETC., VS. H. C. FISK ET AL.
and was made of the same materials as silk scarfs, and therefore should
pay the same duty as searfs.
2d. That it appeared from the evidence that the article of silk
29 neck-ties was composed of silk, or that the component or chief
value therein was silk, and that therefore they were subject to a
duty of sixty per cent.
3d. That as it appeared from the evidence that the said silk neck-ties
were designed exclusively for wear about the neck, that theretore they
were to be considered and taken as ready-made clothing, and were sub-
ject to duty as such.
And the court, then and there, to each of such requests so to direct
a verdict for the defendant, refused so to direct a verdict; and to each
of such refusals so to direct a verdict the defendant’s counsel then and
there duly excepted.
The counsel for the defendant then asked the court to charge the jury
that the articles exhibited by the plaintiffs not being specifically named
in the tariff Jaws, if the jury should find that they bore a simili-
30 tude, either in material, quality, texture,.or use, to silk scarfs, the
jury should find a verdict for the defendant.
And the court then and there refused so to charge; to which ruling
the defendant. duly excepted.
The defendant’s counsel then asked the court to charge that if the
jury should find that the articles exhibited by the plaintiffs were com-
posed of silk, or that the component of chief value therein was silk,
that in such case the defendant was entitled toa verdict.
And the court then and there refused so to charge; to which ruling
the defendant then and there duly excepted.
The defendant’s counsel further requested the court to charge the jury
that the articles exhibited by the plaintifts, being designed for wear
about the neck, were ready-made clothing, and should pay duty
31 as such, and that therefore the defendant was entitled to a ver-
dict. 7
And the court then and there refused so to charge, to which ruling
the defendant duly excepted.
And the court then and there charged the jury:
GENTLEMEN OF THE JURY: I appreciate, and perhaps yourselves
may, the difficulty of comparing, in the progress of a trial, the various
statutes of the United States that bear upon a question of this sort.
There is satisfaction, however, in knowing that if the impressions which
here obtain shall be erroneous, they are subject to review and more de-
liberate consideration in this court and elsewhere, if the parties desire.
The impression on my mind, on hearing counsel and giving such con-
sideration as the opportunity now presents, is, that when Congress pro-
vided in respect to articles non-enumerated, but yet similar to
oo those which are enumerated, they did not mean simply and only
to provide tor articles that are specified by name, but they meant
to provide for articles that did not come within a specific designation
found in existing laws. They foresaw, or perhaps had learned, that
with the utmost care and painstaking of the legislature to provide for
duties upon goods in various classes, in such classification as they
deemed the interest of the country required, there would nevertheless
appear occasionally goods which could not be assigned a place in the
law by any designation which had been employed. I think this act of
———ae
H. A. SMYTHE, COLLECTOR, ETC., VS. H. C. FISK ET AL. 11
1842 meant to provide for that class of cases in which goods were im-
ported, in respect to which in no terms of enumeration could there be
found a clause in the statute that was apt to describe them, that any such
goods should be classed with those to which they bore similitude in
3 kind, quality, and use, and that therefore, when Congress adopted
designation, distinct and explicit, w hich embraced a particular
article, then this section in the act of 1842 had no application to it, so
that I am not able on the brief reflection I have been able to give the
subject, and the short examination of the law which is per mitted me, to
adopt the views of the counsel for the Government in this case. I, there-
fore, dispose of the case upon my view of the construction of the act
under which the duty was imposed. That provides that, on and after
the day and year aforesaid, in lieu of duties heretofore imposed by law
on the articles hereinafter mentioned, there shall be levied, collected,
and paid on the goods, wares and merchandise enumerated and provided
for in this section, imported from foreign countries, the following duties
and rates of duties ; that is to say, among other things, upon silk
o4 vestings, pongees, shawls, scarfs, ‘handkerchiet ts, and various other
things. Now, if, upon the evidence, silk ties are not included in
that enumeration of shawls, scarfs, mantillas, handkerchiefs, veils, and
laces, then ties are not among the articles in that part of the section
mentioned, and I do not understand the counsel for the Government to
insist that they are. Then follows: “ On all manufactures of which silk
is the component material of chief valne, not otherwise provided for, 50
per cent.” Now, had this been a statute which purported to cover the
whole subject—if it purported to be an entire revision of the whole law
relating to duties on imports, and had, either by express words or by
implic: ation, repealed previously-existing laws, there would have been
no room to doubt that “ not otherwise provided for” meant not other-
wise provided for in this act. Counsel for the Government insists that
the intention to give those words that construction Is apparent on
Jo reading the entire section. Iam not satisfied that that is so.
The act is specific. In most or all of its provisions it appears to
have been a taking up of the tariff laws, and on a review of them, a
selecting in various classes the articles which are here enumerated or
embraced, and anew defining the duties upon them, and the language
‘any manufacture of silk, or of which silk is a component material of
chief value, not otherwise provided for,” in my judgment means not
otherwise provided for in this or any other act.
Entertaining that view of the construction of the statute, if these
goods are not ready-made clothing, (which is an expression also found
in this act, and that is not strenuously insisted upon,) and if they are
not scarfs, then, for the purpose of this trial, I must say that the plaint-
iff is entitled to recover the amount which he ‘claims. I shall
36 give the counsel an opportunity to discuss this subject further, if
it is deemed desirable, under circumstances in which I can take
up the various statutes and compare them with much more ecare, and
with a better opportunity to criticise them, than I can have in the prog-
ress of this trial. For the present what I have to say to you is, that if
you Shall find upon the evidence that the goods in question are not
ready-made clothing, and are not scarfs, the plaintiff is entitled to a
verdict.
To which charge defendant’s counsel duly excepted.
The defendant's counsel further specially excepted to so much of the
said charge as charged the jury that it was a question for them to de-
termine whether or not the articles exhibited by the plaintiffs were or
12 H. A. SMYTHE, COLLECTOR, ETC., VS. H. C. FISK ET AL.
were not ready-made clothing or scarfs, and that if the Jury should find
them not to be ready-made clothing, and not to be scarfs, in such
OF case their verdict should be for the plaintiffs. |
Defendant’s counsel also particularly excepted to so much of
the said charge wherein the jury were substantially charged that the
question of whether or not the articles exhibited by the plaintiffs did
or did not bear a similitude in quality, material, texture, or use to silk
scarfs was not to be considered in determining the case.
And inasmuch as the said several matters and the said exceptions do
not appear by the record of the verdict aforesaid, the said Lewis B.
Woodruff, circuit judge, at the request of the counsel for the said de-
fendant, (and on the express written stipulation of the counsel for the
plaintiff, written thereon, that it is eorrect,) has put his seal to this bill
of exceptions this 24th day of May, 1873.
L. B. WOODRUFF. [L. 8.]
38 (Endorsed as follows:) United States circuit court. Henry G.
Fisk & al. v. Henry A. Smythe. Defendant’s proposed case W& ex-
ceptions. Noah Davis, def’t’s att’y.
Service of copy of within admitted.
B. L. LUDINGTON, Atty.
E. HARTLEY, Counsel.
Filed Oct. 21, 1873.
It is admitted that this is the correct bill of exceptions in the within
entitled cause, and we consent that the same may be signed and sealed
by the court, waiving all exceptions heretofore made by plaintiff.
Mar, 22, 773
=’ .< ea oni ont g ee
EK. HARTLEY,
Counsel for PV ff.
GEO. BLISS, Jr.,
Def’ts Atty.
39 Supreme Court of the United States.
HENRY A. SMYTHE, PLAINTIFF IN ERROR, /
US.
HENRY G. FISK ET AL., DEFENDANT IN ERROR
In error. October
( term, LS74.
Afterwards, to wit, on the first Monday of October, in this same term,
before the justices of the said court at the Capitol, in Washington, came
the said plaintifts in error, by George Bliss, their attorney, and say that
in the record and proceedings aforesaid there is manifest error in this,
to wit, that by the records as aioresaid it appears that the judgment
aforesaid, in form aforesaid given, was given for the said defendants in
error, Henry G. Fiske and others, against the said plaintiff in error,
Henry A. Smythe, whereas by the law of the land the said judgment
ought to have been given for the said plaintiff against the said detend-
ant. And the said plaintiff prays that the judgment aforesaid, for the
error aforesaid and other errors in the record and proceedings
40 aforesaid, may be reversed, annulled, and altogether held for noth-
ing, and that he, the said plaintiff, may be restored to move things
whic } be has lost by reason of the said judgment.
GEORGE BLISS,
Atty for PUfT in Error,
Sa Us ARE SP gaa ne Naan eis cae aS
H. A. SMYTHE, COLLECTOR, ETC., VS. H. C. FISK ET AL. 13
(Endorsed:) U. S. Supreme Court. Henry A. Smythe, plaintiff in
error, versus Henry G. Fiske et al., defendant in error. Assignment of
error. Filed March 26, ’74.
NEW YorRK, Mar. 26, 1874.
Due service of the copy of the within admitted this 26 day of March,
1874.
A (Signed) E. HARTLEY,
Attorney for Def’t in Error.
» 4] sy the honorable Samuel Blatchford, one of the judges of the cir-
cuit court of the United States for the southern district of New
York, in the second circuit.
To Henry C. Fisk, Thomas R. Clark, and Thomas J. Flagg, defendants
in error:
Whereas, Henry A. Smythe, plaintiff in error, has brought and pre-
sented a writ of error lately issued out of the Supreme Court of the
United States, and said writ of error directed to the judges of the circuit
court of the United States for the southern district of New York, stating
that in the record and proceedings, as also in the rendition of the judg-
ment of a plea in the said circuit court before the judges thereof, between
the said Henry A. Smythe, plaintiff in error, and Henry C. Fisk, Thomas
R. Clark, and Thomas J. Flagg, defendants in error, a manifest error
hath happened, to the great damage of the said Henry A. Smythe; and
whereas for the correction of that error in due manner the said writ
has been issued returnable at the next stated term of the Supreme
42 Court of the United States, at the city of Washington, on the
second Monday of October, 1874.
You are, therefore, hereby cited to appear before the said Supreme
Court, at the city of Washington, on the second Monday of October,
1874, to do and receive what may appertain to justice to be done in the
premises.
Given under my hand, at the city of New York, in the southern dis-
trict of New York, in the second circuit, the sixteenth day of October,
in the year of our Lord one thousand eight hundred and seventy-three,
and of the Independence of the United States the ninety-eighth.
SAWL BLATCHFORD.
(Indorsed :) U.S. circuit court, so. districtof N. Y. Henry A. Smythe,
pl’ff in error, vs. Henry C. Fisk et al., def’ts in error. Citation on
appeal. George bliss, att’y for app’lt. Filed Oct. 21, 1873.
Due service of a copy of within citation is hereby admitted.
b. L. LUDINGTON,
Att'y for Def’ts in Error.
(Indorsement on cover:) No. 399. Henry A. Smythe, collector of the
port of New York, plaintiff in error, vs. Henry C. Fisk, Thomas R. Clark
& Thomas J. Flagg. New York C. C. U.S. Filed 6th April, 1874.
REC, 399—s5
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In the Supreme Court of the United States.
OCTOBER TERM, 1874.
H. A. SMYTHE, Collector, &c., Plaintiff in )
Error,
+ No. 399.
vs
H. ©. FIskKs, et als. |
In Error. to the Circuit Court of the United States. for
the Southern District of New York.
3RIEF FOR THE UNITED STATES.
IO DOOD A A MN
In the Supreme Court of the United States.
OCTOBER TERM, 1574.
H. A. SMYTHE, Collector, &c., Plaintiff in
Error,
No. 399.
vs. |
}
H. C. FISKE, et als.
In Error to the Circuit Court of the United States for
the Southern District of New York.
BRIEF FOR THE UNITED STATES.
This is an action of assumpsit commenced on the
2d of December, 1867, in the supreme court of the
city and county of New York, by the present de-
fendants, against the plaintiff in error, to recover
moneys claimed to have been illegally exacted by said
plaintiff as and for duties upon imports; which action
was afterwards removed into the circuit court of the
United States for the southern district of New York,
and there tried by a jury at the April term, 1872.
The plaintiffs below declared in three counts: (1)
for money lent; (2) for money had and received; and
(3) upon an account stated. The defendant pleaded
the general issue.
The things in respect to which such duties were
exacted were silk neckties imported in October, 1868.
Upon these the collector had exacted a duty of sixty
per cent., against the payment of which the present
defendants protested, for the reason that silk neckties,
as such, are not specially provided for or enumerated
in any of the tariff acts, but are previded for in the
22d section of the tariff act of 1861, and the 13th
section of that of 1862, which provide a duty of thirty-
five per cent. on “articles worn by men, women, or
children, of whatever material composed, made up,
or made wholly or in part by hand, not otherwise
provided for.”
It was shown in evidence (Record, p. 8) that the
neckties in question were made of silk, folded and
ironed, turned over and pressed by hand, the ends
being afterwards stitched; that they were known in
trade and commerce as a silk tie, and never as a scarf,
or an article of ready-made clothing.
Upon the trial the plaintiff in error.asked the court
to instruct the jury to render a verdict for him upon
the following grounds:
‘1st. That it appeared from the evidence that the
article of silk neckties, being nowhere specifically men-
tioned as such in the tariff acts, bore a similitude to,
was of similar texture, was designed for the same uses,
and was made of the same materials as silk scarfs, and
therefore should pay the same duty as searfs.
“2d. That it appeared from the evidence that the
article of silk neckties was composed of silk, or that
the component or chief value therein was silk, and
that therefore they were subject to a duty of sixty
per cent.
“3d. That, as it appeared from the evidence that
the said silk neckties were designed exclusively for
wear about the neck, that therefore they were to be
considered and taken as ready-made clothing, and
were subject to duty as such.”
o
And the court, then and there, to each of such re-
quests, so to direct a verdict for the defendant, refused
so to direct a verdict; and to each of such refusals so
to direct a verdict, the defendant’s counsel then and
there duly excepted.
The counsel for the defendant then asked the court
to charge the jury that the articles exhibited by the
plaintiffs not being specifically named in the tariff
laws, if the jury should find that they bore a simili-
tude, either in material, quality, texture, or use, to
silk searfs, the jury should find a verdict for the de-
fendant.
And the court then and there refused so to charge;
‘to which ruling the defendant duly excepted.
The defendant’s counsel then asked the court to
charge that if the jury should find that the articles
exhibited by the plaintiffs were composed of silk, or
that the component of chief value therein was silk,
that in such case the defendant was entitled to a
verdict.
And the court then and there refused so to charge ;
to which ruling the defendant then and there duly
excepted.
The defendant’s counsel further requested the court
to charge the jury that the articles exhibited by the
plaintifts, being designed for wear about the neck,
were ready-made clothing, and should pay duty as
such, and that therefore the defendant was entitled
to a verdict.
And the court then and there refused so to charge;
to which ruling the defendant duly excepted.
4
And the court then and there charged the jury:
‘‘ GENTLEMEN OF THE JURY: I appreciate, and per-
haps yourselves may, the difficulty of comparing, in
the progress of a trial, the various statutes of the
United States that bear upon a question of this sort.
There is satisfaction, however, in knowing that if the
impressions which here obtain shall be erroneous, they
are subject to review and more deliberate consider-
ation in this court and elsewhere, if the parties desire.
The impression on my mind, on hearing counsel and
giving such consideration as the opportunity now pre-
sents, is, that when Congress provided in respect to
articles non-enumerated, but yet similar to those which
are enumerated, they did not mean simply and only
to provide for articles that are not specified by name,
but they meant to provide for articles that did not
come within a specific designation found in existing
laws. They foresaw, or perhaps had learned, that with
the utmost care and painstaking of the legislature to
provide for duties upon goods in various classes, in
such classification as they deemed the interest of the
country required, there would, nevertheless, appear
occasionally goods which could not be assigned a place
in the law by any designation which had been em-
ployed. I think this act of 1842 meant to provide for
that class of cases in which goods were imported, in
respect to which, in no terms of enumeration, could
there be found a clause in the statute that was apt to
deseribe them, that any such goods should be classed
with those to which they bore similitude in kind,
quality, and use, and that therefore, when Congress
adopted designation, distinct and explicit, which em-
braced a particular article, then this section in the act
of 1542 had no application to it, so that 1 am not able,
on the brief reflection I have been able to give the
subject, and the short examination of the law which
is permitted me, to adopt the views of the counsel for
the Government in this case.
‘‘T therefore dispose of the case upon my view of the
construction of the act under which the duty was
D
imposed. -That provides that, on and after the day
and year aforesaid, in lieu of duties heretofore imposed
by law on the articles hereinafter mentioned, there
shall be levied, collected, and paid on the goods, wares,
and merchandise enumerated and provided for in this
section, imported from foreign countries, the following
duties and rates of duties; that is to say, among other
things, upon silk vestings, pongees, shawls, scarfs,
handkerchiefs, and various other things. Now, if,
upon the evidence, silk ties are not included in that
enumeration of shawls, searts, mantillas, handkerchiefs,
veils, and laces, then ties are not among the articles in
that part of the section mentioned, and I do not under-
stand the counsel for the Government to insist that
they are. Then follows: ‘On all manufactures of
which silk is the component material of chiet value,
not otherwise provided for, 50 per cent.’ Now, had
this been a statute which purported to cover the whole
subject—if it purported to be an entire revision of the
whole law relating to duties on imports, and had,
either by express words, or by implication, repealed
previously-existing laws, there would have been no
room to doubt that ‘not otherwise provided for’
meant not otherwise provided for in this act. Counsel
for the Government insists that the intention to give
those words that construction is apparent.on reading
the entire section. I am not satisfied that that is so.
The act is specific. In most or all of its provisions it
appears to have been a taking up of the tariff laws,
and, on a review of them, a selecting in various classes
the articles which are here enumerated or embraced,
and anew defining the duties upon them; and the lan-
guage, ‘Any manufacture of silk, or of which silk is
a component material of chief value, not otherwise
provided for, in my judgment means not otherwise pro-
vided for in this or any other act.
‘Entertaining that view of the construction of the
Statute, if these goods are not ready-made clothing,
(which is an expression also found in this act, and
that is not strenuously insisted upon,) and if they are
not scarfs, then, for the purpose of this trial, | must
say that the plaintiff is entitled to recover the amount
Which he claims. I shall give the counsel an oppor- -
tunity to discuss this subject further, if it is deemed
desirable, under circumstances in which I can take up
the various statutes and compare them with much
more care, and with a better opportunity to criticise
them, than I can have in the progress of this trial.
For the present, what I have to say to you is, that
if you shall find, upon the evidence, that the goods
in question are not ready-made clothing, and are not
scarts, the plaintiff is entitled to a verdict.”
To which charge defendant’s counsel duly excepted.
The defendant’s counsel further specially excepted
to so much of the said charge as charged the jury that
it was a question for them to determine whether or
not the articles exhibited by the plaintiffs were or
were not ready-made clothing or searfs, and that if
the jury should find them not to be ready-made
clothing, and not to be scarfs, in such case their
verdict should. be for the plaintiffs.
Defendant’s counsel also particularly excepted to so
much of the said charge wherein the jury were sub-
stantially charged that the question of whether or
not the articles exhibited by the plaintiffs did or did
not bear a similitude in quality, material, texture, or
use to silk searfs, was not to be considered in de-
termining the case.
We assign for error the refusal of the court to charge
a ; ee ae
the jury that the articles exhibited by the plaintiffs
not being specifically named in the tariff laws, if the
jury should find that they bore a similitude either in
q
material, quality, texture, or use, to silk Searfs, the
jury should find a verdict for the defendant.
Also, INs instruction to the jury, that" if you shall
find, upon the evidence, that the goods in question
are not ready-made clothing, and are not scarfs, the
plaintiff is entitled to a verdict. “
The claim of the plaintiffs below was that the duty
upon neckties was provided for by the 22d section of
the act of 1861, and the 15th section of the act of
1862, the joint effect of which: is to impose a duty of
thirty-five per cent. upon all “articles worn by men,
women, and children, of whatever material composed,
made up, or made wholly or in part by hand, not other-
wise provided for.”—(12 Stat., 196, 556.)
This claim depends, of course, upon the non-exist-
ence in any other part of the revenue acts in force at
the time of importation, of a provision applicable to
silk neckties; for if, at that time, such provision did
exist, the neckties were otherwise provided for than by
the above sections.
In making this inquiry, the existence of the above
sections may be laid out of view, as their operation
is merely residuary. As in wills, so here, the meaning
of the other parts of the instrument is to be ascer-
tained before the extent of a residue can be determined.
In this connection we are disposed to admit that the
word silk, when used in the act as a substantive, un-
less where qualified by its context, refers to raw silk,
(see also in the same connection cotton and flax,) and
therefore that the phrase ** manufactures of silk” re-
fers in such act presumptively to silk thread or silk
goods, and therefore that the sections in which it
8
occurs cannot be cited as otherwise providing for ar-
ticles of silk ** made up,” &e., so as to affect the extent
of the above residuary provision. We, therefore, shall
not contend that neckties are included in the provision
“On all manufactures of which silk is the component
material of chief value, not otherwise provided for, 50
per cent.”
In view of the evidence on the subject, we suppose
that we are concluded from contending that the neck-
tie is an article of ready-made clothing.—Law vs. Cross,
1 BL, 535; U.S. vs. Jackalow, ibid, 484; Bischoff vs.
Wetheree, 9 Wall., 812.
I. By the 8th section of the act of 1864, chap. 171,
a duty of 60 per cent. ad valorem is laid upon a part
of the goods therein “ enumerated and provided tor,”
viz: **On silk vestings, pongees, shawls, scarfs, man-
tillas, pelerines, handkerchiefs, veils, laces, shirts,
drawers, bonnets, hats, caps, turbins, chemisettes,
hose, mits, aprons, stockings, gloves, suspenders,
wateh-chains, webbing, braids, fringes, galloons, tas-
sels, cords, and trimmings.”
The use of the word enumerated in that section is
significant, reminding one as it does of the provision
in the act of 1842, chap. 270, see. 20: “That there
Shall be levied on each and every non-enumerated
article which bears a similitude either in material, qual-
ity, texture, or the use to which it may be applied to
any enumerated article chargeable with duty, the same
rate of duty which is levied and charged on the enumer-
ated article which it most resembles in any of the par-
9
ticulars before mentioned; and if any non-enumerated
article equally resembles two or more enumerated. ar-
ticles on which different rates of duty are chargeable,
there shall be levied, collected, and paid on such
non-enumerated article the same rate of duty as is
chargeable on the article which it resembles paying
the highest duty; and all articles manufactured from
two or more materials, the duty shall be assessed at
the highest rates at which any of its component parts
are chargeable.”
The eourt below was of opinion that the word
‘‘enumerated,” in the act of 1842, applies to the
mention of articles by specific designation, (i. €., as
we understand it, by classes,) as well as to their men-
tion by name. We admit that enwmeration may be by
classes as well as by articles; but observe, as material
in this connection, that the enumeration above refer-
red to is, upon its face, of the latter kind only, and
therefore that it is not admissible to regard the above
provision of the acts of 1861 and 1862 as an enumer-
ation of the articles described therein, within the
meaning of the above section of the act of 1842; for,
although the class to which these articles belong may
be said to be one enumerated in the sections of the acts
of 1861 and 1862, along with other classes, and also
some articles, yet the articles of which it is composed
are not enumerated; and the act of 1842 refers to
enumerated articles. Upon the contrary, the clause
in the 8th section of the act of 1864 is an enumeration
of some thirty articles, all of the same material of
which these neckties are composed, many of them
articles worn by men, as they are, and some of them,
>
ad
10
also, articles “made up,” as they are, or even * made
wholly or in part by hand,” as they are.
We therefore submit that the importation of silk
neckties in question is governed by the provisions of
the acts of 1864 and 1542, above quoted. The point
appears to us to be very clear, and to admit of but
little elaboration, so that we confidently leave it in
its above brief statement.
II. Other considerations may be mentioned which
tend to strengthen this conclusion.
The provision relied upon by the plaintiff below
made its appearance first in the tariff act of 1846,
and, at that time, wanted the expression “ not other-
wise provided for.”—(9 Stat., 44.)
The addition of that phrase first by the act of 1861,
(above,) was a significant hint that some of the articles,
formerly therein included, were to be so no Jonger.
The original provision must have grouped together,
under one duty, a great many incongruous articles;
and it is in accordance with the usual results of
progress and intelligence that later legislation on a
subject so full of discriminations as a tariff, should
have taken from such a huddle many articles which
a better-informed policy required to be distinguished
therefrom.
In statutes demanding attention to a great many
particulars, like tariff acts, apparently there is more
intelligence displayed in those parts which found their
distinction upon an enumeration of particulars than
in those which distinguish by classes, whilst, perhaps,
the least intelligent parts are those which sweep things
into a residue—generally having no more than a very
11
obscure reference to principle, and frequently resorted
to as the only refuge from still worse effects of an ex-
cusable ignorance or inadvertence of the legislators.
It seems to us that a clause which places under the
same duty the vast variety of articles worn by men,
women, or children, made up or made wholly or in part
by hand, is a striking illustration of the straits to
which unavoidable ignorance may sometimes reduce
legislators. For this reason it is that such acts often
provide that clauses affecting classes: shall have no
operation as against other more detailed provisions
upon the same subject, or upon parts thereof. The
less intelligent clause is thereby made to yield to that
which is more intelligent. In this connection we sub-
mit that next to the precision marking legislation
proceeding by an enumeration of articles, is that of
legislation referring to such provision non-enumerated
articles similar in material, use, &e.; or, at all events,
whatever doubt may be cast upon the assertion that
this is in the very next degree of precision, such legis-
lation, by reference, is very far superior in point of
intelligence to provisions like that first above quoted
and. relied upon by the plaintiffs below; and therefore,
that the deference exhibited in its final clause to all
other provisions on the same subject, 1s in reason
applicable to provisions for articles not enumerated.
In other words, it seems that the minds of the legis-
lature, when determining the duty upon silk scarfs,
handkerchiefs, veils, shirts, hose, suspenders, and the
other above-enumerated silk articles of men’s, women’s,
and children’s wear, made up, &e., were more advertent
to the considerations which would have determined
12
the duty upon silk neckties, had that name then oceur-
red to the draughtsmen, than they were when sweeping
together, in a residuary clause, articles of such wear,
of whatever material composed, made up, &e.
G. H. WILLIAMS,
Attorney General.
F., PHILLIPS,
Solicitor General.
IN THE
Supreme Court of the Cnitey States,
OCTOBER TERM, 1874.
Serenifroemenneneaneeene eS — S71
Henny A. SMYTHE, COLLECTOR, &C.,
Plaintiff in Error,
vs. No. 399.
Henry C. FISKE ET ALS.,
Defendants in Error.
In Error to the Circuit Court of the United States for the
Southern District of New York.
Brief for Defendants in Error.
“VENING Post STEAM PREsssEs, 41 Nassau Street, cor. Liberty, N. Y.
IN THE
Supreme Court of the Clnited States.
OCTOBER TERM, 1874.
Henny A. Smyrue, CoLLector, &¢.,
Plaintiff in Error,
HENRY C. FISKE ET ALS.,
Defendants in Error.
Ln Kirov to the Chreut Court of UT United S/ates for thie
Sout he aL, District of Ne ri York.
Brief for, Defendants in Error.
The evidence shows that the neckties imported are
known in trade and ecommerce as “ ties ;’ that they are
not scarfs, nor so known amone merchants; that ties
and searfs resemble each other as hats and caps do,
but are just as distinct articies in trade, and that on an
order for neckties scarfs would not be furnished or
shown to customers ; that they are made in different
Ways and styles ; also that neckties are not ready-
made clothing, nor so known in trade and commerce.
See Record, page 4, folio 10; page 7,
folio 21 and all pages 8 and 9.
On this uncontradicted evidence under the charge
of the court, “that if these neckties are not ready-
made clothing and are not scarfs, plaintiffs are entitled
to a verdict,” the jury found for the importers, sett-
ling the only questions of fact that the goods were not
scarfs and not ready-made clothing.
Record, page 11, folio 36.
The verdict ot 2 jury upon Aa pure question Ol
is conclusive.
ARGUMENT.
5 |, ee ls of 4248 : lv ar ch suit an ]
iwo grounds Of error only are assignead—
First.—The refusal to charge “ that the articles ex-
‘ hibited by the plaintiffs not being specifically named
“in the tariff laws, if the jury should find that they
‘bore a similitude either in material, quality or tex-
“ ture, or use, to silk scarfs, the jury should find a ver-
‘ dict for the defendant.”
Properly refused. Neckties are enumerated in sec-
tions 22, Act March 2, 1861, and 15, Act July 14, 1862
(12 Statutes, 191, 556) as “articles worn by men,
women and children,’ and again as “ wearing apparel,”
which terms are repeated several times in the sections.
These words are distinctly and explicitly descriptive
of neckties as ‘“‘ articles worn,’ and as “ wearing ap-
parel.” They embrace them as fairly and as fully as
any form of words can. ‘The words ‘ jewelry,” “ em-
broideries,’ “ hosiery,’ ‘ ready-made clothing,” ‘ up-
per leather,” “ wearing apparel,” distinctly describe all
articles falling ‘ OSE respective designations.
Suelh forms ot eCeHuUne Lr t! ! (er necessitate vei) are Tre-
‘ s
i
;
’ . ° 7, * . . , 1 ad oe
quent In tariffS. whie CALLNOF safely C1 al W1ti) particu-
lars not only on ace t of the omissions that would
inevitably oeceur, but because of the changes in the
name and manufacture of articles which are constanth
oceurring, and which wou'd be seized upon to
the duty. Hence the use of the article is oft
the test of its classification.
U.S. v. Washington Mills, 2 Chfford, 601
remarks on enumerations.
oranted that an article
If the principle be &
moved from such admitted descriptions as |
“wearing apparel,” beca
m4 =e 4 — me a mE 3 ee LO
1n material. cexture or use. to another artic
not “jewelry” or “ wearing apparel,” you
classify it under a deseription that the legis
not employed, and nullify the purpose of
i
such articles are to pay duty Lrecordimeg
render the whole enumeration ‘“ jewelry”
apparel ’ worthless, beeanse there is no
under either term which may not bear
some other article “ either in material.
or use.’
As the words in the Aets of IS61 a
“articles worn by men, women, and children,” &ce.,
and ‘‘ wearing apparel,’ describe neckties, and a:
they are included in those terms, being articles
on the person they are exnwnerated;, and the Act of
oust 30, 1842, sec. 20 (5 Statutes, 515), cannot ap
for it only refers to non-enumerated articles.
Aud in accordance with this view, the court charge
the jury.
The distinction claimed between ‘an enumeration
of articles,” or articles described by names and classes,
and the phrase “enumerated article” used in section
20 of the Act of 1842, is founded on no reasonable
view of that statute. The subjects of duty are there-
in classed by name or special description in the first
nine sections, and articles not named or classed (7. e.,
non-enumerated) are provided for by section 10. Any
article, or class of articles, named in previous sections
could not fall under the non-enumerated section, be-
cause specifically provided for elsewhere ; for if non-
enumerated in any sense their previous mention would
have been idle.
Among these ‘ enumerations” in the Act of 1842 (5
Stats., 548-561), are the following, viz., ‘‘ ready-made
clothing of whatever materials composed, worn by men,
women or children,”’
“ All articles worn by men, women or children other
than as above specified or excepted, of whatever mate-
rials composed, made up wholly or in part by hand.”
“ All manufactures of cotton or of which cotton shall
be a component part.
“Any other manufacture not otherwise specified,
suitable for the uses to which cotton bagging is ap-
plied.”
“All other manufactures not otherwise specified,
made of brass, iron, steel, or of which either of
these metals is a component material.”’
None of these descriptions can fall under section 10
as not enumerated, because that section only covers
by its language “articles not enumerated or provided
for.
The 20th section of the Act of 1842 provides a rule
of construction, which restricts the operation of the
99
10th or non-enumerated section to articles that do not
bear similitude to articles previously classed for duty.
If the 20th section be ailowed to operate on such
terms as “articles worn by men, women and children”
and “ wearing apparel,” as has been before observed.
there will be nothing left for those phrases to act upon,
for either in material, quality, texture or use there is
some article, which every “article worn by men,
5
women and children” resembles in one of these
ticulars.
]
Take the words ‘‘ manufactures of iron not othe
wise specified.” Under the construction claimed
only one article of iron was enumerated, nothing coul
be classed tor duty asa “manufacture of iron not othe:
wise specified, © because every article ot Lk ld. 1
material at least, ‘‘ bear a similitude”’ to the
of iron named. |
Such a construction is at war with the plain provi-
sions of the statute.
Nor do we see the justice of the distinction claimec
between an “enumeration” and an ‘“ enumerated
article.” The argument for the government |
“scarfs” as an “ enumerated article” and “ arti
by men, women or children” not an enumerated article
or articles. But the difference is in degree only, for
while wearing apparel ineludes all articles worn on the
person, the word scarfs includes all kinds of searfs
(and they are many), by whatever name known. ‘The
word “ scarts” just as truly describes a céivss of articles
as the words wearing apparel, the only difference being
that one class includes more articles than
We fail to see the foree of the word “ enumerated”
in the 8th section of the Act of 1864, referred to by
counsel. That word occurs as well in the sections of
the Acts of 1861 and 1862 (12 Stats. 191, 556), relative
to wearing apparel, and is the usual word employed in
levying an impost. Whatever force it may have asa
legislative recognition that the succeeding descriptions
are “enumerated articles” applies equally as well to
“articles worn,” &c., as to “ scarfs.”
Tlie insertion of the words “not otherwis provided
for’ in the Acts of 1861 and 1862, after the words
“articles worn,” &c., has no peculiar significance as
claimed, for later, in the very same sections, we find
es 6
the words “ clothing ready made and wearing «7,
Oi except wool,” COVerligc the Sahlie
j
of every ese rep
eround except as to woolens and without the quality-
Ing words “ not otherwise provided for.”
Whether the legislators in enumerating, in the Act
ae,
of 1864, suspenders, handkerehicfs,
OY " ' | ; - 4 + | ae canara
were more advertent to the considera
have determined the duty Oli IJi¢ ek tie
In passing the Acts of 156]
the terms “ articles worn
rayi whatever material COMPO: C . @WC.. AN wh wearing
apparel of. every description, te... mav be doubted.
because the sweepl1b words ot ** whatever material
cy
A oO
composed’ and “ wearing apparel of escrip-
tion,’ are exhaustive, evincing an intent to imelude
everything that can be worn on the person.
ee ae eee ‘ial
And when in later LeOisiatlon apt words are nof user
to take out any given article of wearing apparel, it 1s
idle, as well as wnsufe, to speculate upon the supposed
intent of Congress.
The claim of the Government is that although the
}
jury have found that neckties are not scarts, and al-
though Congress has imposed on them a different rate
of duty from scarfs, by apt words that melude them,
yet that they should be classed for duty as scarfs, under
a rule of construction, because they, in some respects
site ] ’ ) a ee lay 4 ;
resemble searis. iT nis: IS legislation Wadiel the Oulse O]
° , | = ee :
construction, nnd WOU repeat Ly Mntverprecacvion \/ me
tanto) a plain provision of law.
The general exception to the charge of the court
(Reeord., p. 11, fol. 3G) is not opel ative under the rules.
Rule 4, Armstrong v Toler, 1] Wheaton,
258, 277.
Bg.
The second error assigned is the instruction given
to the jury, “ that if you shail find on the evidence that
' ° ® ? j ° +
the goods in question are not ready-made clothing and
are not scarfs, the plaintift is entitled to a verdict.”
7
This ground of error does not appear to be noticed
in the argument of the plaintiff in error, except to
admit that, on the evidence, he is concluded from con7
tending that neckties are articles of ready-made cloth-
ing (see page Sof his brief). Why is he not, by parity
of reasoning, concluded from contending that they are
sears/s 7
That it was a question for the jury to determine, what
the articles in suit were, and that the verdict depended
thereon, see
Lawrence v. Allen, 7 Howard, 785, 797,
and Cases eitect.
What was the proper rate of duty upon neckties of
silk in 1868 ?
Sections 22, Act of Mareh 2, 1861, and 13, Act of
July 14, 1862 (12 Statues, 191, 556), impose a duty of
do per cent. on
‘Articles worn by men, women or cluldren, of what-
“ever material composed—made up or made wholly or
“in part by hand, not otherwise provided for.”
Clothing ready made and wearing: apparel of every
‘“deseription, of whatever material composed, except
“wool, made up or manufactured wholly or in part by
“the tailor, seamstress or manufacturer.”
Neckties of silk fall under these classifications. Has
later legislation taken them out ?
Later laws claimed to affect them are Act of June,
30, 186-4, section 8, which reads :
“On silk vestings, pongies, shawls, scarfs, mantillas,
“ pelerines, handkerchiets, veils, laces, shirts, drawers,
“bonnets, hats, caps, turbans, chemisettes, hose, ~aits,
“aprons, stockings, gloves, suspenders, wateh-chains,
“webbing, braids, frimges, galloons, tassels, cords and
“trimmings, sixtv per cent. ad¢ valorem. * * On all
“manufactures of silk, or of which silk is the com-
8
‘ponent material of chief value, not otherwise provided
“ for, fifty per centum ad valorem.”
Also the Act of March 3, 1865, section 3 (13 Statutes,
193), which reads, “on ready-made clothing of silk, or
of which silk shall be a component material of chief
value, sixty per centum ad valorem.”
Suk neckties are not “ manufactures of silk, &e., not
otherwise provided for,” because they are provided for
in the Acts of 1861 and 1862. as “ articles worn by men,
women or children,” and as “ wearing apparel.’
Both terms include them, being used in their or-
dinary signification, and not as terms of trade. This
question was settled in
Maillard v. Lawrence, 1 Blatehf., 504.
Aftamed, 16 How., 251.
They are not ready-made clothing of silk under the
Act of 1865. Congress did not intend to fully provide
for silk goods in the Acts of 1864 and 1865. Silk twist
and silk button cloths are still dutiable at 40 per cent.
under the Act of August 5, 1861, section 2 (12 Statutes,
293), and manufactures of mixed materials in part of
silk, cotton, flax, &e., still pay but 35 per cent. under sec-
tions 22, Act of March 2, 1861, and 13, Act of July 14,
1862 (12 Statutes, 192, 557); manufactures of silk—if
embroidered, fall under the same sections, at the same
rate of duty ; manufactures of India rubber and silk
are provided for in section 8, Act of July, 14, 1862 (12
Statutes, 552).
9
[t would not seem, then, that Congress intended by
the Acts of 1864 and 1865, to do more than the language
of the acts would signify.
When Congress removed wearing apparel of wool
from the Act of 1861, they used the most comprehen-
sive language, /.¢., clothing ready made and wearing
apparel of every description made of wool, &e. (14
Statutes, 561), to accomplish the purpose.
The term, wearing apparel, was first introduced into
the tariff to cover articles not embraced under any com-
mercial designation, and to supply the deficiencies of
the term “ ready-made clothing.”
Maillard v. Lawrence, 1 Blatch., 504.
Same, 16 Howard, 251.
The court says in that case (16 Howard, 260): “ It
“must be understood as being the intention of the
Legislature to add to clothing ready made, in the ac-
‘“ceptation above given, every article which in its de-
“sion and completion, and received uses, is an article
“of wearing apparel,” Xe.
If ‘“ wearing apparel” be the larger term, does the
lesser term “ ready-made clothing of silk” cover silk
neckties ?
In Elliot v. Swartout, 10 Peters, 137, an action to
recover excess ot duty paid on worsted and cotton sus-
penders where duty was levied under a clause im-
posing fifty per cent. ad valorem on manufactures of
wool and ready-made clothing, the court ignored the
words “ ready-made clothing,” turning the case on the
distinction between wool and worsted.
In Hall v. Hoyt, reported in 2d Hunt’s Merchants’
Magazine, 334, an action to recover an excess of duty
paid on knit shirts and drawers, the court charged the
jury that “if the goods were hosiery in commerce, they
were not ready-made clothing.”
In Dorr v. Hoyt, 2 Hunt’s Merchants’ Mag., 262,
held (counsel consenting), that worsted cravats were
not ready-made clothing, but hosiery.
10
A cravat and necktie are as nearly alike as two dif-
ferent articles can be, and both are “ wearing apparel ”’
and an “ article worn,” &ce.
The decisions all appear to be that the term “ ready-
made clothing” is a trade term, and will not cover
hats, caps, stockings, hosiery, articles of underwear,
ties, cravats, &c., all of which are ‘“ wearing apparel ”
and “ articles worn by men, women or children.”
Therefore the court very properly instructed the
jury that if ties were not ‘“ ready-made clothing” and
not scarfs, to find for plaintiff. And their verdict is
conclusive on this question.
Neckties of silk are not scaris, and by their verdict
the jury so found.
They are not lable to duty as scarfs, from simili-
tude under section ~0, Act of Aug. 30, 1542 (5 Stat-
utes 565), because ties are enumeruled in the term
“wearing apparel” and “ articles worn by men, wo-
men and children.”
A non-enumerated article is one not embraced
under a description contained in an enumeration of
articles (U. S. v. U. S. Telegraph Co., 2 Benedict,
362; also reported in 7 Int. Rev. Record, 141, and
cases there cited).
The case of Cohen v. Phelps, 19 Int. Rev. Record,
67, which admits the principle in the above eases,
practically conflicts with them, because it overlooks the
non-enumerated section of the present tariff (see. 24,
Act. March 2, 1861, 12 Statutes, 196).
It treats the words “ manufactures of iron not other-
wise provided for” in the Act of 1864, as a non-
enumerated clause, whereas it is a res‘diary clause
embracing all manufactures of ‘ron not before named
11
for duty. Its design is to prevent any manufacture
of iron from falling into the non-enumerated clause of
the Act of 1861. A definition by exclusion is as posi-
tive as a definition by inclusion.
To illustrate : Had the law read “ All manufactures
of cast-iron 25 per cent., and then all manufactures of
iron not otherwise provided for, 30 per cent.,” cer-
tainly no article not of cast-iron would fall under the
first clause by similitude, if made of iron, because it in
terms falls exactly within the second clause.
This is the state of the law in Cohen vs. Phelps.
But if the law were that all manufactures of cast-iron
should pay 30 per cent., and manufactures of wrought-
iron 40 per cent., without any residuary clause, then
the duty on a non-enumerated iron, like sheet-iron,
must be ascertained by similitude, because sheet-iron
is not covered by any form of words.
In Stuart vs. Maxwell, 16 Howard, 158, on which
Cohen vs. Phelps claims to be based, the “ enumerated
article”? with which manufactures of linen and cotton
which were not provided for by law were classed for
duty, was “ manufactures wholly composed of cotton
not otherwise provided for.”
As, by the text of the Act of 1842, the non-enumer-
ated article must bear similitude to an “enumerated
article,” the court, in Stuart vs. Maxwell, must have
held that “ manufactures wholly composed of cotton not
otherwise provided for” was an enumerated article,
and as this is just the same kind of term as “ manu-
factures of iron not otherwise provided for” in the Act
of 1864, the latter is an enumeration also, and the
decision in Cohen vs. Phelps was wrong.
The case of Cohen vs. Phelps stands alone, while
the conclusions reached by Judge Blatchford in the
United States vs. United States Telegraph Co., and by
the court below in this case, have uniformly been fol-
lowed, and are admitted even by the decision in Cohen
vs. Phelps to present the true state of the law, the
learned judge therein attempting to distinguish be-
tween those cases and his own.
12
The true rule is well stated by Judge Nelson in Lat-
timer vs. Lawrence, 1 Blatchford, 614, as follows:
“The goods then coming within the list of articles
“ enumerated in that schedule, the case is not one that
‘can be aided by the 20th section of the Act of 1842 ;
“ because that section applies only in cases where the
“ article in question has not been otherwise provided
for. If it has been specially provided for, that ex-
“ cludes any constructive designation by operation of
“ the 20th section.”
It is to be observed also that it never occurred to
court or counsel, in Maillard vs. Lawrence, 16 How-
ard, 251, that the words “ wearing apparel ” or “ articles
worn,” &c., were not an enumeration, although the
similitude section was then in force.
As, then, neckties are neither scarfs nor ready-made
clothing, as found by the jury, and are provided for
under the enumeration of “articles worn,” &c., and
“wearing apparel”’ in the Acts of 1861 and 1862, the
ée¢
judgment below should be affirmed.
EDWARD HARTLEY,
Counsel for Defts. in Error.
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.