Junge v. Hedden

Action by Henry Junge against Edward L. Hedden to recover duties paid under protest. A verdict was directed for defendant. 37 Fed. Rep. 197. Plaintiff brings error. Affirmed.

Statement by Mr. Chief Justice FULLER.

This was an action to recover an alleged excess of duties exacted upon importations of dental rubber into the port of New York in 1885.

The duty was assessed under the paragraph of Schedule N of section 2502 of the Revised Statutes, as re-enacted by the act of March 3, 1883, which reads: 'Articles composed of India rubber, not specially enumerated or provided for in this act, twenty-five per centum ad valorem.' 22 St. p. 513, c. 121.

The substance of the protests is stated in the record as follows: 'Upon certain 'India rubber in sheets,' claiming said goods to be entitled to free entry under the provisions in the free list for 'India rubber' crude, (Act March 3, 1883;) or, second, if deemed not crude, it is nevertheless not a manufactured 'article of rubber' in the meaning of the law, but is entitled to free entry under the proviso of section 2499 of said act as crude; or, third, at no more than 20 per cent. ad val., as a partially manufactured, nonenumerated article under section 2513, Act March 3, 1883, (see section 23, Act March 2, 1861, as to rubber in sheets,) and not at 25 per cent. ad val., as charged by you.'

The proviso of section 2499, and section 2513, thus referred to, are: 'Provided, that nonenumerated articles, similar in material and quality and texture and the use to which they may be applied to articles on the free list, and in the manufacture of which no dutiable materials are used, shall be free.' 22 St. p. 491.

'Sec. 2513. There shall be levied, collected, and paid on the importation of all raw or unmanufactured articles, not herein enumerated or provided for, a duty of ten per centum ad valorem; and all articles manufactured, in whole or in part, not herein enumerated or provided for, a duty of twenty per centum ad valorem.' 22 St. p. 523.

Section 23 of the act of March 2, 1861, (12 St. p. 195,) the free list, contains this item: 'India rubber, in bottles, slabs, or sheets, unmanufactured.'

The paragraph of Schedule N of section 2502 of the act of March 3, 1883, under which the collector proceeded, is one of three, reading as follows:

'India rubber fabrics, composed wholly or in part of India rubber, not specially enumerated or provided for in this act, thirty per centum ad valorem.

'Articles composed of India rubber, not specially enumerated or provided for in this act, twenty-five per centum ad valorem.

'India rubber boots and shoes, twenty-five per centum ad valorem.'

In the free list (section 2503) is to be found:

'India rubber, crude, and milk of.'

Upon the trial various exhibits of crude rubber, washed rubber, dental rubber, and dental plates were put in evidence, and the proofs established that these importations were dental rubber, which was commercially so known, and fit for dental purposes only.

It further appeared that dental rubber was crude rubber put through a masticator, by which it was torn up and shredded into a state of pulp, sulphur and coloring matter added, and the mass rolled into sheets, cut into proper sizes, and backed with linen, to prevent the pieces from sticking together; that the heat of the mill, or masticator, was not a vulcanizing heat, but sufficient to render the rubber elastic. The circuit court, (Lacombe J.,) refused to direct the jury to find for the plaintiff, but, on the contrary, directed a verdict for the defendant. There were a verdict and judgment accordingly, and plaintiff sued out this writ of error. The opinion of Judge Lacombe will be found in 37 Fed. Rep. 197.

Edwin B. Smith, for plaintiff in error.

[Argument of Counsel from pages 235-237 intentionally omitted]

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

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