De Jonge v. Magone

The action below was brought to recover the amount of alleged excessive exactions imposed by the defendant, while collector of the port of New York, as duties upon two importations into the port of New York made by the plaintiffs in 1888 of two kinds of paper,-the one coated, colored, and embossed to imitate leather, the other coated with flock to imitate velvet,-which importations were classified by the collector as dutiable under Schedule M of the tariff act of 1883 (22 Stat. 510), which reads as follows:

'Paper hangings and paper for screens or fireboards, paper antiquarian, demy, drawing, elephant, foolscap, imperial, letter, note, and all other paper not specially enumerated or provided for in this act: twenty-five per centum ad valorem.'

The goods were described in the invoices as 'manufactures of paper,' and in their protest the importers claimed that they were dutiable at only 15 per cent. ad valorem, under a paragraph of the same schedule of the act referred to, which reads as follows:

'Paper, manufactures of, or of which paper is a component material, not specially enumerated or provided for in this act: fifteen per centum ad valorem.'

A member of the plaintiff firm testified, and the evidence generally tended to show, that the articles in question were embraced in a class of surface-coated papers known to commerce and trade at the time of the passage of the tariff act of 1883 as 'fancy papers,' and were specifically designated and known to the trade at that time, the imitation of leather paper as 'embossed paper' or 'morocco paper,' and the other as 'imitation of velvet paper.'

The process by which fancy papers of the character referred to are produced, while requiring different machinery, the employment of workmen not accustomed to making ordinary paper, or the completed paper which is used in this manufacture, yet is substantially the same method as is used in the manufacture of wall paper. Indeed, the unquestioned proof was that paper as completed in paper mills, in order to make wall paper, is subjected to further treatment to fit it for the new use. As to the imitation of leather paper, there are no ingredients contained in it not found in ordinary paper, though the sizing and coloring are different.

In the production of these fancy papers, printing paper or sized paper, white and manilla papers, as completed in the paper mills, are used. In the case of imitation of velvet paper, the process consists in first putting a strong sizing on the paper, then sifting the different colored flocks in the wet sizing, and then drying the product; and in the case of the paper coated, colored, and embossed to imitate leather, color is first laid upon the paper; it is then dried, sized, and finally passed through engraved steel rollers, which emboss its surface. It was in evidence that the embossed or morocco paper was used to cover books, for covering paper boxes, for album covers, fancy boxes, or sample cards, for pocketbooks, for pamphlets, and for a great many other purposes to imitate leather; and the imitation of velvet paper was used for mats to contain photographs, to frame photographs, for fancy boxes to imitate velvet, and also for wall decoration. A witness for the defendant testified that imitation velvet or flock paper had been used to put upon walls for more than 40 years, and that the product, when intended for use as wall paper, was put up in rolls. In the catalogue issued by plaintiffs to the trade, put in evidence, and in which, as testified to by one of the plaintiffs, the imitation of velvet paper was embraced under the designation of 'Leather Papers,' the following appears:

'Leather Papers.

'Our Own Manufacture.

'$20.00 per Ream of 500 Sheets, 20x25.

'$2.00 per Roll of 25 Inches by 25 Yards.

'Prices Subject to the Fluctuations of the Market.

'These goods come in nine colors, as follows: Russia red, Turkey red, leather color, light brown, dark brown, light blue, navy blue, dark green, and black, and can be had in plain or smooth, seal grain, alligator, bamboo, and other patterns; are waterproof, finished on the best 40-pound rope manilla stock.'

At the close of the evidence each party moved for a peremptory direction to the jury, and exceptions were duly taken and noted to the overruling thereof.

The following requests to charge were submitted on behalf of the plaintiffs, and a separate exception taken to each refusal so to instruct the jury:

'(5) If the articles in suit are made by the addition of foreign substances to paper not covered by the popular definition nor the dictionary definition of paper, they cannot be classified as paper for purposes of duty.

'(6) Unless you find that trade and commerce in 1883 and theretofore, in this country, had affixed a different meaning to the word 'paper' from the ordinary meaning, the articles here in suit, not being within the latter, are not to be assessed as paper.'

'(8) The general words of paragraph 392 of the tariff must be construed as though they read, 'and all other papers of that class [designated by the nine preceding words] not specially enumerated or provided for in this act'; and unless you find that the articles in suit belong to that class they cannot be considered as provided for in paragraph 392, unless by the words, 'paper hangings and paper for screens and fireboards."

The plaintiff also excepted to the following portion of the charge of the court:

'Was this article in the trade and commerce of this country, when congress legislated in 1883, a variety of paper? In other words, if the committee of congress that framed this act and reported it to congress had turned to the trade and commerce of this country of 1883, and had asked that trade for a comprehensive list of all kinds of paper known to them and dealt in commercially as such, would paper like this have been included in such list? If the commerce of the country had furnished to the committee of congress, in answer to such a request, a list of all the kinds of paper known to that trade, and if such list enumerated articles like these, then they are covered by the phrase 'all other papers' in paragraph 392, the collector was right, and the defendant is entitled to a verdict. If, on the other hand, an article such as this would not have been included in that list at that time, then the plaintiff, having established by the proof that they are manufactures of paper, is entitled to your verdict.'

The full charge to the jury is contained in 41 Fed. 432.

Albert Comstock, for plaintiffs in error.

Asst. Atty. Gen. Whitney, for defendant in error.

Mr. Justice WHITE, after stating the facts in the foregoing language, delivered the opinion of the court.