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COCHRAN and others, Survivors, etc., v. SCHELL

March 19, 1883

COCHRAN AND OTHERS, SURVIVORS, ETC.,
v.
SCHELL, LATE COLLECTOR, ETC. SCHELL, LATE COLLECTOR, ETC.,
v.
COCHRAN AND ANOTHER, SURVIVORS, ETC.



The opinion of the court was delivered by: Blatchford, J.

George Bliss, for Cochran.

Sol. Gen. Phillips, for Schell, late collector.

This is a suit commenced in 1863, by the members of the firm of S. Cochran & Co., against the collector of the port of New York. As tried in the circuit court it involved the recovery back of duties paid on cotton laces and cotton insertings imported from abroad in 1857, 1858, 1859, 1860, and 1861, and of fees paid at the custom-house. The laces and insertings were composed wholly of cotton, and were 'either bleached or dyed.' The collector charged a duty on them of 24 per cent. ad valorem, the importers claiming that the proper duty was 19 per cent. ad valorem. At the trial the court instructed the jury that the duty was correctly assessed and that the plaintiffs could not recover.

The question as to the fees involved four items. On the presentation of an invoice and an entry, the collector, before he would receive them as collector, impressed on each invoice, for the convenience and security of himself and the government, a stamp or certificate, certifying in the name of a deputy collector that the invoice was presented 'on entry' on such a day. On each entry, one of the plaintiffs' firm was required to make and subscribe before the collector or his deputy the owner's or consignee's oath. For each of such stamps the collector exacted 20 cents, and for each of such oaths 20 cents. He also exacted a fee of 20 cents for each permit to land the merchandise embraced in each entry on which the duties had been paid or secured, such permit being signed by the collector and the naval officer. Said three fees of 20 cents were paid with the duties, and otherwise no permit for the landing and delivery of the goods could be obtained. The permit to land covered all the goods embraced in the entry, but at least one package of each invoice, and one package in every ten packages of each invoice, were, by order of the collector, designated on each invoice, and each entry, and also on the permit, to be sent, and were sent, to the public store for examination and appraisement; and, after they had been examined and appraised and reported on, an order was required by the plaintiffs' firm, signed by the collector alone, to the storekeeper, to deliver such examined packages to the plaintiffs' firm. For every such order, without which the examined packages could not be obtained, the collector exacted a fee of 20 cents. At the trial, the plaintiffs conceded that the fee for the permit was legal. The court directed a verdict for the plaintiffs for the amounts exacted for the other three fees, with interest, being $1,734.80, and, after a judgment for the plaintiffs therefor, with costs, the plaintiffs sued out a writ of error based on their failure to recover the alleged excess of duty exacted on the laces and insertings, and the defendant sued out a writ of error based on the recovery for the three alleged illegal fees.

By Schedule D of the act of July 30, 1846, (9 St. at Large, 46,) a duty of 25 per cent. ad valorem was imposed on 'cotton laces, cotton insertings, cotton trimming laces, cotton laces and braids,' and 'manufactures composed wholly of cotton, not otherwise provided for.'

By section 1 of the act of March 3, 1857, (11 St. at Large, 192,) it was enacted that after July 1, 1857, ad valorem duties should be imposed in lieu of those then imposed on imported goods, as follows: 'Upon the articles enumerated in Schedules A and B' of the tariff act of 1846, a duty of 30 per cent., 'and upon those enumerated in Schedule, C, D, E, F, G, and H of said act,' the duties of 24, 19, 15, 12, 8, and 4 per cent., respectively, 'with such exceptions as are hereinafter made.' The schedules above mentioned respectively imposed duties of 100, 40, 30, 25, 20, 15, 10, and 5 per cent.

Thus far cotton laces and cotton insertings, being in Schedule D of the act of 1846 at 25 per cent., were reduced by the act of 1857, with the other articles in schedule D, to 19 per cent. But section 2 of the act of 1857 provided 'that all manufactures composed wholly of cotton, which are bleached, printed, painted, or died, and delaines, shall be transferred to Schedule C.' Under this provision it would seem very plain that the goods in the present case were subject to a duty of 24 per cent., and not of 19 per cent. If section 1 of the act of 1857 had merely reduced from 25 per cent. to 19 per cent. the duty on the articles specially mentioned in Schedule D of the act of 1846, without exception, the duty on the goods in question would have been reduced to 19 per cent. But the enactment was distinct that there should be excepted out of the reduction 'all manufactures composed wholly of cotton, which are bleached, printed, painted, or dyed, and delaines,' and that they should go into Schedule C, the 24 per cent. schedule.

The contention for the plaintiff is that, as cotton laces and cotton insertings were made dutiable by those names in the act of 1846, they are not to be affected by the subsequent general provision as to manufactures composed wholly of cotton.

Schedule C of the act of 1846 imposed a duty of 30 per cent. on 'cotton cords, gimps, and galloons,' and on 'manufactures of cotton, * * * if embroidered or tamboured in the loom, or otherwise, by machinery, or with the needle, or other process.' Schedule E imposed a duty of 20 per cent. on 'caps, gloves, leggins, mits, socks, stockings, wove shirts, and drawers, made on frames, composed wholly of cotton, worn by men, women, and children,' and on 'velvet, in the piece, composed wholly of cotton.' These provisions, and the one in Schedule D as to cotton laces, etc., relate to goods made of cotton entirely. Those goods are all of them goods to which, as 'manufactures composed wholly of cotton,' section 2 of the act of 1857 applies, transferring them, when bleached, printed, painted, or dyed, to the 24 per cent. schedule, Schedule C. The duty on them had been 30, 25, and 20 per cent. respectively. But for such transfer the new duty on those in Schedules D and E would have been 19 and 15. A new uniform rate of 24 was imposed, and while the 30 was reduced by 6 per cent., the 25 was reduced by only 1, and the 20 was increased by 4. This indicates an intention, in the act of 1857, to impose, in general, on manufactures composed wholly of cotton, when bleached, printed, painted, or dyed, a relatively higher duty as compared with other articles named in the act of 1846.

The expression 'manufactures composed wholly of cotton' is not found in the act of 1846. It is in that act qualified by the words 'not otherwise provided for.' In the act of 1857 the expression is 'all manufactures composed wholly of cotton, which are bleached,' etc. If the words 'manufactures composed wholly of cotton,' unqualified, and the words 'cotton laces,' and 'cotton insertings,' had all of them been found in the act of 1846, as the general expression would not have embraced the specific terms in that act, for dutiable purposes, though including them in general language, it would be reasonable to say that the general expression in a later act would not include the specific terms, for dutiable purposes. But the fact that the general expression, as used in Schedule D of the act of 1846, is qualified by the words 'not otherwise provided for,' shows that there were manufactures composed wholly of cotton otherwise provided for; that is, in other items in that act. Thus, besides the embroidered and tamboured manufactures of cotton provided for in Schedule C of that act, there are cords, gimps, galloons, laces, insertings, trimming laces, laces and braids, each with the word 'cotton' prefixed, indicating manufactures composed wholly of cotton, and there are also the articles composed wholly of cotton named in Schedule E. The material 'cotton' is the thing of special mark, as the sole material in the manufacture. In this view it cannot properly be said that these manufactured articles, manufactures of cotton composed wholly of cotton, designated in the act of 1846 always by the epithet 'cotton' applied to them, are not embraced, for dutiable purposes, in the terms 'all manufactures composed wholly of cotton,' in section 2 of the act of 1857.

The designations qualified by the word 'cotton,' in the act of 1846, are designations of articles by special description, as contradistinguished from designations by a commercial name or a name of trade. They are designations of quality and material. The articles referred to, named in Schedules C, D, and E of the act of 1846, are all of them manufactures wholly of cotton; but under that act they were not all subject to the same duty, and so that act designates them substantially as manufactures wholly of cotton which are gimps at 30 per cent., manufactures wholly of cotton which are laces or insertings at 25 per cent., manufactures wholly of cotton which are stockings, made on frames and worn by human beings, at 20 per cent., and so on. But for the exceptions provided for by section 1 of the act of 1857 the duties on those articles, if bleached, printed, painted, or dyed, would have been reduced to 24, 19, and 15 per cent., respectively, but section 2 of that act says, in substance, that manufactures wholly of cotton which are gimps, or laces, or insertings, or stockings, and so on, shall, all of them, be subject to 24 per cent. duty. This was the view applied by Mr. Justice NELSON, in Reimer v. Schell, 4 Blatchf. C. C. 328, in 1859, to colored cotton hosiery, under the provisions in question, and we think it a sound one. It was the view adopted by the circuit court in this case. There is no question of commercial designation. Hence, the cases cited and relied on by the importers are not cases in their favor.

Homer v. The Collector, 1 Wall. 486, in 1863, was a case in which Mr. Justice NELSON delivered the opinion of this court. It was a case under these same statutes. Almonds were dutiable, by that name, at 40 per cent. in Schedule B of the act of 1846. Under the act of 1857 the duty on the articles in said Schedule B was reduced to and fixed at 30 per cent., and the collector exacted that duty on almonds. It was contended that as, by section 2 of the latter act, 'fruits, green, ripe, or dried,' were transferred to Schedule G, and so made subject to only 8 per cent. duty, almonds were so transferred, as being 'fruits, green, ripe, or dried.' An attempt was made, at the trial, to show that at the time the act of 1857 was passed, almonds were fruit, green, ripe, or dried, according to the commercial understanding of those terms in the markets of this country, and questions were certified to this court, on a division of opinion in the circuit court, as to the proper duty on almonds, and as to the admissibility of such evidence. It was contended, for the importer, that the term 'dried fruits,' in popular meaning, included almonds. The government claimed that the term 'almonds' was a specific name, and, therefore, commercial nomenclature had no application. This court held that inquiry as to whether, in a commercial sense, almonds were dried fruit, had nothing to do with the question, as a duty had been imposed on almonds, eo nomine, almost immemorially; and that, as almonds were charged specifically with a duty of 40 per cent. in the act of 1846, and were not named as almonds in the changes in the act of 1857, and full effect could be given to the term 'fruit, dried,' without including almonds in it, it followed that almonds were dutiable at 30 per cent. There is nothing in this decision that overrules that in Reimer v. Schell, or that aids the importers in the present case. The act of 1846, in substance, mentions manufactures wholly of cotton which are laces or insertings, bleached or dyed, and section 2 of the act of 1857 mentions them in naming manufactures composed wholly of cotton, bleached or dyed.

Nor does the case of Reiche v. Smythe, 13 Wall. 162, as to birds, apply. That case was decided on the ground that the word 'animals,' in the act of 1861, did not include 'birds,' and so could not include them in the act of 1866.

There is nothing in Smythe v. Fiske, 23 Wall. 374, or in Arthur v. Morrison, 96 U. S. 108, ...


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