Hartranft v. Meyer (149 U.S. 544)/Dissent Brewer

Mr. Justice BREWER, dissenting.

With respect to these three cases I desire to make these observations: The questions presented in them are not constitutional, nor even of general and permanent law, but relate only to the scope and meaning of certain statutory clauses now repealed, and which were in force for only a few years. While the amounts involved may be, as counsel contend, large, yet the questions are but of temporary and passing importance. Hence, after two decisions, the questions should be considered as settled, and that notwithstanding some of the present members have come onto the bench since those decisions, and may not concur in the views therein expressed.

The end of litigation, so much to be desired, is not fully satisfied by the close of the particular lawsuit, but implies that the question involved therein is settled; so settled, that all parties may adjust their dealings and conduct accordingly. A change in the personnel of a court should not mean a shift in the law. Stare decisis is the rule, and not the exception. Whatever, therefore, is within the letter or spirit of the two cases of Hartranft v. Langfeld, 125 U.S. 128, 8 Sup. Ct. Rep. 732, and Robertson v. Edelhoff, 132 U.S. 614, 10 Sup. Ct. Rep. 186, should be considered as having passed beyond the scope of present inquiry. For these reasons, considering the course of the trial and the rulings of the court, I concur in the decisions in the first two cases.

With regard to No. 860, I think that the facts and rulings bring out a clear distinction. The importations in that case were chinas and marcelines, so described in the invoices, imported as piece goods, in rolls or folds of from 75 to 125 yards in langth, and from 18 to 31 inches in width. Are such goods trimmings? I think by no fair construction of the word can they in that condition be called 'trimmings.' Confessedly, they must come within these words of the statute, 'trimmings * *  * used for making or ornamenting hats, bonnets, and hoods.' The question of use or chief use does not arise until it is established that the goods are trimmings. This question was really not in the cases in 125 and 132 U.S. and 8 Sup. Ct. Rep. and 10 Sup. Ct. Rep., supra. In the opinion in the former it was said of the goods there in question: 'That they were trimmings was not a matter of controversy. All the witnesses on both sides spoke of them as such.' And in the latter: 'On the trial the undisputed evidence was that the articles in question were used exclusively for trimming hats and bonnets, and had a commercial value only for that purpose.' In neither case does it appear that any question was made as to whether the articles there imported were trimmings or not. But it was in this case, and such instructions asked and refused as compel a determination of that specific question. The instructions and comments of the court are as follows:

'(1) If you believe that in March, 1883, chinas and marcelines were commercially known as 'linings,' and not 'trimmings,' then your verdict should be for the defendant.

'This point is refused.

'(2) If you believe that the chinas and marcelines in suit were bought, sold, and used in trade in March, 1883, under those names and were not commercially known as 'trimmings,' then your verdict should be for the defendant.

'This point is refused.'

'(6) If you believe that the chinas and marcelines in suit were not in the form of trimmings at the time of their importation, you must find for the defendant, although you should believe that they were suitable and adapted by their nature and qualities to be made into hat trimmings.

'This point is refused. This point which I have just read and the next one embody the proposition advanced by defendant's counsel and discussed by them before the jury, that the chinas and marcelines here in question cannot be regarded as within the term 'trimmings,' as employed in the act of congress, because they are imported by the piece, and before the material is actually applied to use in the making or ornamenting of hats, bonnets, and hoods the pieces have to be cut into smaller pieces and made into certain forms.

'But the court cannot accept this view as correct, and I instruct you that hat materials which are imported by the piece are 'trimmings' within the meaning of the act of congress if they are distinctively adapted, and, in fact, are chiefly used, for trimming hats, bonnets, and hoods, and are not specially enumerated or provided for in the act.

'(7) The jury are instructed that there is a distinction properly to be made between 'trimmings' and materials out of which to manufacture trimmings, and, if the articles in suit are not trimmings in the sense of being completely fabricated as such, but required skill and labor to cut, fit, fold, sew, or fashion them into trimmings, then they must find for the defendant.

'You will understand that I am asked to instruct you in this way; this is the proposition which counsel hand me to affirm. I decline to give you that instruction, and I have given you the contrary instruction. The point is refused.'

Now, I am of the opinion that these goods were, in the condition in which they were imported, not trimmings. I concede that if they had a commercial designation as such, that would be sufficient within many rulings of this court, but the testimony does not establish that fact, and the refusal of the first two instructions eliminates that matter from present consideration. That being eliminated, it does not seem to me that these goods, when and as imported, legitimately fall within the ordinary meaning of the word 'trimmings.' The idea of trimmings is of something cut up or prepared ready for present use in the ornamentation or making of hats, bonnets, etc. Concede that these rolls or folds of cloth were generally used for cutting up into trimmings, they were not, while in the piece, fairly to be denominated 'trimmings.' Take other piece goods, bolts of linen or cotton cloth. Suppose that some of them were used mainly, or even exclusively, for cutting up into handkerchiefs, napkins, or towels, would any one suppose that the terms 'handkerchiefs,' 'napkins,' or 'towels,' when used with statutory precision, were intended to include or did include the cloth imported in bolts? Were the language 'cloth for handkerchiefs,' etc., or 'material for handkerchiefs,' etc., doubtless such expressions would include the cloth in bolts. So here, if the statute named cloth or material for trimmings, the conclusion would be different; but where the word is simply 'trimmings,' I take it to mean that which at the time of importation and in the condition in which it is imported is ready for immediate use as trimmings, and not that which is to be cut up into trimmings. Or, to carry the illustration further, could hickory logs be called 'wooden toothpicks,' because, when cut up into little pieces, they may be used as such; or would ivory fall under the designation of 'piano keys,' because, when sawed into proper shape, it is used for that purpose?

Indeed, to my mind the word 'trimmings' carries necessarily this idea: Something in size, form, or condition fit and ready for present use in the making or ornamentation of hats, bonnets, or other such articles.

For these reasons I cannot concur in the decision in the latter case.

I am authorized to say that Mr. Justice BROWN concurs in this opinion.