BATTERSON V. MAG0NE.

289

BATTERSON

et al, v.

NeIIJ

MAGONE,

Collector.

(Oircuit Oo'/{-rt,S, D.

York.N.oy,ember 18,1891.)

CUIlTOMS DUTJES-CLASSU'WATION-'MEXJCAN ONYX.

So-called "'Mexican Onyx;" not being a chaicedony or onyx proper, as defined in mineralogy, but being a carbonate of lime, containing a small proportion of carbonate of magnesia and ferrous oxides, and having the other charaoteristics of ma,rble in respect, of texture, hardness, and capacity, for be,iIl g, worked and polished; is "marble." within the provision of paragraph 461" Tariff Ind. (New,) ,. , ' Schedule"N, Tariff Act, March 8,1888.

At Law. .This action was brought by the plaintiffs against the defendant, collector of the port of New York, to recover the amount of an alleged overpayment of duties on certain merchandisEHmported by the plaintiffs into the port of New York in the month of April, 1889, which was inblocks marble," and was voiced to the plaintiffs from Vera Cruz as classified for duty by the defendant collector as "marble in blocks," at 65 cents per cubic foot, under Tariff Ind. (New,) paragraph 467 of Sched.. ule N oj the tariff act of March 3, 1883. Against this classification the plaintiffs duly protested, <;l'Iaiming, first, that the merchandise was duty free, as a" crude mineral, riot advanced in value or condition by refining, grinding, or manufacture," under the free list of said tatiff act, paragraph Tariff Ind. (New) 638; 01' by "similitude in material, quality, and uses to, agates unmanufactured," under said free list paragraph, Tariff Ind. (New) 596; ,or, if not, then at one dollar per ton, as. or undressed stomes. buildil'tg or monumental stone,not marble," under paragraph Tarifi' Ind. (New) 487 of said Schedule N of said tariff act, either directly or by similitude in material, quality, and uses. The plaintiffs: duly appealed to the secretary of' the treasury from the decis. iori of the oollecto1', and the secretary affirmed the decision of the defendant ,collectof,and this action was thereupon broughtwithin the time limited by law to recover the alleged overpayment of duties. On the trial the plaintiffs did not offer any proof that the material in question' was an onyx or chalcedony belonging to the group, as understood in mineralogy. They also abandoned their claim that it assimilated to agate unmanufactured; and rested their contention entirely upon the ground, that the material imported by them had been known from the time of its introduction into this country ,and at the time of the passage of the tariff act of March 3, 1883, as "Mexican Onyx;" that it was never known in the trade as marble, or as one of the marbles, but that the term "marble," as used in trade at that time, excluded this article as imported by them. To sustain this contention plaintiffs introduced a number of witnesses from'the marble trade, who dealt in this article at the time of the passage of the tariff act. They also endeavored to prove by the testimony of one witness that the material was extracted, from mines in Mexico, and was consequently, if not a monumental Of building stone,a crude millernl,within the ordinary meaning of that term. Plaintiffs also offered testimony showing that the material inquestioIi v,48F.no.4-19

290

FEDERAL REPORTER,

vol. 48.

was used to some extent in buildings for columns and interior decorations, and also had been used in Some instances in the interior of mortuary vaults in cemeteries. On behalf of the defendant collector the testimony of an expert chemist was introduced,whd had· made an analysis of the material imported by the plaintiffs, witll the. result that this so-called' "Mexican Onyx" was shown to contain: Carbonateof.lime. ' · 95.56% Carbonate of magnesia:; · 2.32 Anhydrous SUlphate of lime·· 0.13 Ferrous and ferric oxides. 1.85 Residue. 0.14
100.00%

....-Alsothat this material had a crystalline structure, composed ofrhom-: bohedral crystals, and scientifically belonged to the group of calcites kno,wIl as" marble." The testimony of this witness also showed that ordinary marbles contained Jrom 78 per cent. to 99 per cent. and upwards ·of carbonate of Hme,'and that the carbonate of magnesia in marbles raIl from 20 per cent. clown to 1 per cent.; and that like impurities were.· found in marbles as had been shown ·by the ..analysis to exist in, this Mexhlan ony:x. Trade testimony was also given on behalf of ,the defendant, showing that' this material was extracted from mountainquarriesr:in: Mexico; was used in the manufacture of mantel-pieces, vases, pedestals, table. tops,. colUinns, ew., and also for wainscoting and othel" mlilraLdecorations; that it was s8wed,polished,cut, and turned like othermarblesj that it could never, by'reason of its characteristicBof texture and'composition, -be used in places exposed to the weather; that it was never used in the structure proper of buildings or of vaults, and was ·only employed ·for decorative· purposes,and could never be used for monuments, tomb-stones,. or shafts, where exposed to the weather. ' It was also shown that this material came in blocks, in the same manner as in the case of other varieties of marble, excepting that the blocks of Mexican onyx averaged somewhat smaller than the blocks of the other fine foreign marbles. The principal trade witness for the defendant testified that, 'although this material was ,generally known in the wholesale trade as 'I ,Mexican Onyx," yet that in the trade that dealt in it (which was only to aJimited extent in the year 1883 and prior to that it was known;and recognized as "Mexican Onyx Marble" or 'IOnyx Marble)' Testimony that it was also known as ,HMarbre Onyxe" i:n France; and as "Onyx Marble" in theSlJanish language in Mexico, from whence the material came, was excluded by the court as incompetent evidence of trade designation. At the close of the testimony motions were. made on behalf of the plaintiffs and of the defendant, respectively, for a direction of verdict by the court, which motions were denied. . Bartley for plaintiffs. Edward MitcheU. U. S. Atty., and James T. Van Rensselaer, Asst. U. S. Atty., for dtlfeIidant.

Bi'1'TERSON 11. }{'AGONE.

291

LACOMBE, Circuit Judge,.(cMrging jury.) Y(ju will not be troubled with any determination (jf the question as to similitQde or similarity. Those provisions in thetril'iff laws refer only to articles which have,D(jt been enumerated in someway or other in the tariff. ·'As I find this article enumerated,-certainly in. one place, if nbt'in more, in the tariff, -the particular paragraphreferting to similitude does not apply. This is an article which evidently has come to this cOuntry quite recently; but it was known here prior to 1883, and therefore we would naturally expect that in some way or other congress was awa.re of its existence, aJ1d by some terminology or other in the statute did provide for it. Referring to the tariff, we find a provision in paragraph 638, in the free list, enumerating "crude minerals, not a.dvanced' in value or condition" a certain stage. ' I charge you that this is a crude mineral; as described therein; and, if there were nothing else in the tal'iff but that provision, we would have the case determined. It seems, however, unreasonable to suppose tha't congress would have provided for an article such as this, coming to this country in considerable quantities, and teting largely into trade, by so brief and general a description; and,looking further to the tariff, we find two paragraphs, which it is contended on one side or the other may properly be applicable to this article. One of these is paragraph 487, which provides for a rate of one dollar per ton on "stones, unmanufactured or undressed, freestoite, granite, sandstone, and all building or monumental stone, except marble." The first question for you to determine in regard to this article is whether it is or is not properly building or monumental stone other than marble, within of that paragraph. As to the meaning of those two words "building" stone and "monumental" stone, I charge you that a building stone is one which enters structurally into the composition of a building, not something added as pure ornament to a structure complete without it. I further charge you that a monUmental stone is one which is a structural component of a monument, and not something which is added as mere ornament to a completed monument. With those definitions of the two words" building" stone and II monumental" stone in your minds, you will apply what you have heard frQm the evidence here as to the uses to which this stone is put when it is availed of in the process of building, or in the process of erecting monuments; and you will determine whether or not it is building stone or monumental stone on the evidence which has been given to you. But should you reach the conclusion that it is building stone or monumental stone, there then remains the other question,-as tl> whether it is or is not marble; for the very paragraph which lays a duty on building and monumental stone excepts marble from its operation. That brings you, then, to the final question in the Mse,-whether it is or is not marble. The word "marble." as it is used in common speech, is undoubtedly broad .enough to cover this article here; and we have learned that its composition, material, and appearance are 8uch that it would be properly classified under the ordinary use of the word CI marble" in the English language, as given to us by the dictionaries.

292

FEDERAL REPORTER

,vol. 48··

It. is contended, however, that in trade and commeroo:there is a different meaning given to the word, "marble ".,...-or, rather, that tbere was a diftbe word ,"marble" in 1883-Jrom that ferent D;leaning so which is in use in common speech. You will understand, of course, that all. these tariff act§ are passed in.regulation of corpmerce, and that the usages of commerce and the nomenclature of merchants and wholesale dealers in the variolls articles named in the tariff are taken into byc<:mgresswhen framing tariff laws when using the langu,a;gein themselves. Of course itis,not enough for a party who claims that bis article is not within the ordinary meaning' of the terms of common speech to slloW that it ahYI1Ys has in trade some special name that it.is. call1ldby, unless he goes .further, and shows that ijl that same trade the general term. which would cover it, is for articles, other than the as to which he claims the special designation. For instance,as all illuE/tration, (which I have used quite frequently, but perhaps you will understand it better from an, illustration than from a mere statement in words,) wheat is a "grain;" and therefore, if a tariff act provided a certain duty for grain, then wheat ofall Idnds and sorts wo.uld pay tbat quty. Now, no amount of evidencethat certain seeds were always bought and sold as "winter wheat," anp.jlever were called anything else in trade, would take them out of the general designation ofgr,ains, unless the trade testimony went further, and showed that thecom,merce of this country understood the word "grail)." as referringex«1l1,1sively to cereals other than wheat. And so hare, in order to establish the proposition that the articles imported here are n.ot !parbles, it is not sufficient fo.rthe plaintiff to show thatthey are always bought and sold asoriyx, or as Mexican onyx; hE;! must go ther,lIIld satisfy you frof.l1.,testimol).y,and by fair preponderance ·of proof,.tbat the trada inthiscountryjn 1883 dealt in that article as different frqmIl1arble; and, various kincls and varieas marble, did ties of ),llarble which it knew, dealt ill' and not.i,n.dude this ,article.. I,ll. other. words\ when the tees were drilWil1g this bill, of congreSE/ were voting it, if they, at that time, had been fully informed as to trade subject" w:o:uld they have considered that by the of the word" marble "they did or did not include this Mexican onyx? : If congress, in,1883, thus enJightenedby the trade knowledge. of those who dealt in marbles and in ¥exican Ol1YX, would have stood that" marble" included" Mexican onyx," tllen you must find thai this importation is ma:rble. If, congress would have understood at that time that when it used the word "marble," although it might include ,many. varieties of limestone, carbonates, calcites, etc., it still did not include this aI:ticle then known ana. dealtin here, you must find the article imported in this .case is not marble.
irhe jury rendered a 'VerdIct for the '

CLAY 11. ERHARDT.

293

CLAY 11. ERHARDT. (otrcuU Oourt, S. D. New York.

November 19, 1891.)

1.

CuSTOMS DUTIES-CoNSTRUCTION,oF STATUTES.

:a.

Construction of a statute should not be resorted to when the statute bears its meaning plainly on its face, but should be reserved for a statute expressed in duubtfullanguage. Dandelion root, imported while the tariff act of March 8, 1883, (22 U. S. St. 488,) was in force which was not edible, and was in a crude state, and not advanced in value or condition by refining or grinding, or by other process of manufacture, and which was not used or intended to be used IlS coffee or as a substitute therefor, but was used for medicine, and in medicinal preparation, was not dutiable under the provision for "acorns and dandelion root, raw or prepared, and all other articles uli\ed or intended to be used as coffee or as substitutes therefor, "contained in parathe aforesaid tal'iff act, but was free of duty, under the provision for drugs, * * * roots * * * any of the foregoing of which are not edible, and are in a crude state, and not advanced in value or condition by refining or grinding, or by other process of manufacture," contained in paragraph 636 of the same act.

SAME-DANDELION ROOT.

At Law. Action against the collector of customs at New York to recover duties paid. Verdict directed for plaintiff. During the years 1889 and 1890 the plaintiff imported from Germany into the port of New York certain dandelion root. This dandelion root was cl::ssifiE'd for duty as "dandelion root, raw, used as Ii substitute fot coffee," under the provision for" acorns, and dandelion root, raw or pre'pared,and all.other articles used or intended to be used as coftee, or as substitutes therefor, not specially enumerated or provided for in this act," contained in Schedule G of the tariff act of March 3, .1883, (22 U. St. 488; Tariff Ind., New, par. 290,) and duty was exacted thereon at the rate of two cents per pound by the defendant as collector of customs at that, port. .Against this classification and this exaction the plaintiff duly protested; claiming that this dandelion root was free of duty as 11 robt not edible, and in a crude state, etc., under the provision for "drugS; * * * roots, * * * any of the foregoing of which are not edi. ble, and are in a crude state, and not advanced in value or condition by refining or grinding, or by other process of n1anufacture, and not cially enumerated or provided for in this act," contained in the free list of section 2503 ofthe same act. Tariff Ind. (New,) par. 636. The plain.! tiff also dulymlLde appeals to the secretary of the treasury, and, within 90 days after adverse decisions were rendered thereon by him,he brought this suit to recover all the duties exacted on this dandelion root. Upon the trial .it appeared that the article in suit was the root of the dandelion plant; that it was then known in trade and commerce of this country, as was, at and prior to the passage of the tariff act of March 3; 1883, all root of the same plant, as "dandelion root;" that it was not' edible, and was in a crude state, and not advanced in value or condition by refining or grinding, or by other process of manufacture; thatit not used or intended to beused as coffee, or as a substitute therefor; but was used fot medicine, or in medicinal preparations; that root of thii Il&JDekind was never used for coffee, or ag,asubstitute therefor, but:l.WftS