Binns v. Lawrence

THIS cause was brought up from the Circuit Court of the United States for the Southern District of New York, on a certificate of division in opinion between the judges thereof.

It was an action brought up by the plaintiffs against the Collector of New York for the return of certain duties, paid under protest, and charged to have been illegally exacted upon the importation of glass tumblers.

The tariff of 3d August, 1846, (9 Stat. at L., pp. 44, 45, ch. 74,) enacted duties on glass, as follows, viz.:

'Schedule B. Forty per centum ad valorem.

'Glass cut.

'Schedule C. Thirty per centum ad valorem.

'Glass tumblers, plain, moulded, or pressed; not cut or punted.'

The demand of the plaintiffs, Binns & Halstead, for alleged overcharge of duties paid to the collector, was founded on the importations of glass tumblers of two kinds:

1. Glass tumblers, the entire surface of the bottom of which had been smoothed by the glasscutter, or grinder, previous to their importation into the United States.

2. Glass tumblers, on the sides of which ornamental figures had been engraved by the glasscutter, or engraver, previous to their importation into the United States.

Upon these tumblers the collector charged a duty of forty per cent. classing them under schedule B. In ten importations this duty of forty per cent. amounted to $6,695.70, whereas the plaintiffs alleged that it was $730.20 too much, averring that the tumblers properly belong to Schedule C, and to recover this excess the present action was brought.

Upon the trial the jury found a verdict for the defendant. But upon the trial the counsel for the plaintiffs excepted to the charge of the court, which exception was reserved for argument.

Upon which said argument it occurred as a question whether, according to the true construction of the act of Congress of 30th July, 1846, entitled, 'An act reducing the duty on imports, and for other purposes,' glass tumblers, the bottoms of which have been smoothed or flattened by the process of cutting or grinding, and glass tumblers which have been engraved on the sides by a similar process, should be charged with the duty of 40 per centum ad valorem, under schedule B of said act, as glass cut,' or with the duty of 30 per centum ad valorem, under schedule C of said act, as 'glass tumblers, plain, moulded or pressed, not cut or punted.'

On which question the opinions of the judges of the court were opposed.

Whereupon, on motion of the said plaintiffs, by their counsel, that the point upon which the disagreement hath happened may, during the term, be stated under the direction of the judges, and certified under the seal of this court to the Supreme Court to be finally decided:

It is ordered, that the following statement of facts, which is made under the direction of the judges, be certified according to the request of the said plaintiffs, and the statute in such case made and provided. Statement of Facts.

That the tumblers in question consisted of two kinds, as follows: 1. Glass tumblers, the entire surface of the bottoms of which had been smoothed by the glasscutter, or grinder, previous to their importation by the plaintiffs.

2. Glass tumblers, on the sides of which ornamental figures had been engraved by the glasscutter or engraver previous to such importation.

That the tumblers in question, of the first class, are only known in trade and commerce in the city of New York as 'plain tumblers,' or as 'plain smooth-bottomed tumblers,' or as 'plain tumblers with flattened bottoms.'

That the tumblers in question of the second class are only known in trade and commerce in said city as 'engraved tumblers.'

That the tumblers in question (of both classes) are not known in trade and commerce in said city as 'cut glass.'

That all the material witnesses for the plaintiffs were merchants, importing and dealing in glassware.

That all the material witnesses for the defendant were manufacturers of glassware, or glasscutters and grinders.

That the designation 'cut glass,' as used in trade and commerce in said city, applies only to tumblers, the sides of which have been cut or ground, and that the importers of glassware and dealers in glassware in said city, do not consider tumblers of the description in question in this suit as coming within the designation, and if they received an order from a customer for 'cut glass tumblers,' would not regard it as including either smooth-bottomed or engraved tumblers.

That by the testimony of the manufacturers and operatives, glass tumblers are manufactured entirely by the glassblower, or in part by the glassblower and in part by the glasscutter or grinder, and that glass-blowing and glass-cutting are distinct and separate trades, and processes of manufacture.

By the same witnesses. That the bottoms of glass tumblers, manufactured entirely by the glassblower are rough, particularly in the centre, being there broken off from the punt or stick on which made; and that when sold in this condition such tumblers are known in trade and commerce in the city of New York as 'plain' or 'plain rough-bottomed tumblers.'

By the same witnesses. That, after their completion by the glassblower, such rough-bottomed tumblers frequently pass into the hands of the glasscutter, or grinder, by whom the centre of the bottoms of tumblers is cut or smoothed, for the purpose of removing the particular roughness of that part of the tumbler, and that the process of thus cutting or smoothing the centre of the bottoms of such tumblers is called punting; and that tumblers manufactured by the glassblower, but the centre part of the bottoms of which have been so cut or smoothed by the glasscutter, are known in trade and commerce as 'punted' tumblers.

By the same witnesses. That, after their completion by the glassblower, such rough-bottomed tumblers frequently pass into the hands of the glasscutter or grinder, by whom the entire surface of the bottoms of such tumblers is cut or smoothed, and that tumblers manufactered by the glassblower, but the entire bottoms of which have been cut or smoothed by the glasscutter or grinder, are known in trade and commerce as 'plain tumblers,' or as 'plain smooth-bottomed tumblers,' or as 'plain tumblers with flattened bottoms, and are similar to the tumblers in question of the first class.

By the same witnesses. That tumblers known in trade and commerce, and amongst manufacturers, as 'moulded tumblers,' or 'pressed tumblers,' are also made entirely by the glassblower, and are also rough-bottomed until subjected to the process of punting, or smoothing and cutting above described.

By the same witnesses. That all cutting of glass is done by means of grinding upon wheels, and that there is no such thing as the cutting of glass in the manufacture of 'cut-glass' in any other way.

By the same witnesses. That the cutting or smoothing of the bottoms of the tumblers in question, (of the first class,) is done by the glasscutter, and that the process of cutting and smoothing is identical with that of punting, except that it extends to the entire surface of the bottom of the tumblers, whereas the 'punting' is limited, as above stated, to the centre of the bottom merely.

By the same witnesses. That the process of 'punting,' and the process of 'cutting or smoothing' the bottoms of the tumblers in question, are identical in their operation with that of cutting the sides of tumblers, known in trade and commerce as 'cut glass.'

It is proved that the time required to cut or smooth the bottom of the tumblers in question, (of the first class,) is four or five times as long as that required for 'punting' the bottoms of punted tumblers; and that tumblers with the bottoms cut or smoothed cost from 18 to 22 cents per dozen more than punted tumblers.

It is proved that the 'punted' tumblers are charged with the duty of 40 per centum ad valorem under the Tariff Act of 1846.

It was proved by the manufacturers and operatives that the process of engraving the tumblers of the second class is similar to that of cutting the tumblers of the first class, but is a finer species of work, requiring more experienced and skilful workmen, and the use of copper wheels instead of wood and stone wheels, and oil and emery, instead of sand.

All which we have caused by these presents to be exemplified, and the seal of the said Circuit Court to be hereunto affixed.

Witness the Hon. Roger B. Taney, Chief Justice of the Supreme Court of the United States, at the city of New York, this first day of December, in the year of our Lord one thousand eight hundred and forty-nine, and of the independence of the United States the seventy-fourth.

ALEXANDER GARDINER, Clerk.

I, Samuel R. Betts, one of the judges of the Circuit Court of the United States, for the Southern District of New York, in the second circuit, do hereby certify, that the foregoing exemplification is in due form of law.

SAMUEL R. BETTS.

It was argued by Mr. Patten for the plaintiff, and Mr. Crittenden (Attorney-General,) for the defendant.

The points for the plaintiffs were as follows:--

1. That the tariff laws are to be construed according to the commercial sense of the term used in them. Lee v. Lincoln, 1 Story, 610; U.S. v. 112 Casks Sugar, 8 Pet., 277; Bacon v. Bancroft, 1 Story, 341; U.S. v. Wigglesworth, 2 Id., 369; Henry W. Sill et al. v. Cornelius W. Lawrence, Collector, MS., before Justice Nelson, U.S.C., New York.