Magone v. Heller

This was an action brought, after due process and other proceedings, by the members of a firm of importers against the collector of the port of New York, to recover back duties assessed and levied by the collector under the tariff act of March 3, 1883, c. 121, upon three importations, in 1887, of an article invoiced as 'manure salts,' which the collector held to come within the clause, 'Potash, sulphate of, twenty per centum advalorem,' in 'Schedule A-Chemical Products,' and which the plaintiffs claimed to be exempt from duty under the free list as a substance 'expressly used for manure.' 22 Stat. 493, 515.

At the trial, one of the plaintiffs testified that the article (of which he produced samples) was a manure salt, made in Saxony, from a substance there mined and known as 'kainit,' by crushing and washing or leaching so as to extract the parts of no use as fertilizers, leaving sulphate of potash, and then burning and grinding it in a mill, but not calcining it; that the plaintiffs sold all the importations to manufacturers of fertilizers, and had imported the article since 1882; that, 'so far as his knowledge went, similar articles were used expressly for fertilizers and manures; that his firm sold them to fertilizer manufacturers expressly;' that 'he did not say that these articles were directly applied to the ground for crops; that they were so applied, but that they were generally used in other ways;' that they contained 90 to 95 per cent. of sulphate of potash, and more than 40 per cent. of pure potash; that the price was estimated according to the amount of sulphate of potash, as shown by foreign analysis; and that his firm dealt in manure salts, and not in sulphate of potash.

On cross-examination he persisted in the last statement, after being shown a business card of his firm (afterwards proved to have been obtained at their place of business a few days before the trial) which stated that they dealt in 'sulphate of potash, muriates of potash, kainit, kieserit, mineral phosphates, acid phosphate, and all other fertilizing materials.'

Several wholesale dealers in drugs and chemicals, called by the plaintiffs, testified that they knew and dealt in chemically pure sulphate of potash, (of which they produced samples,) but did not recognize or deal in the substance of which samples had been produced by the plaintiffs.

Some manufacturers of fertilizers and dealers in fertilizing materials, called by the plaintiffs, testified that this substance was bought and sold as 'sulphate of potash,' and as 'manure salts;' that it was generally used in the manufacture of fertilizers, mixing it with other materials; that it was sometimes sold to farmers for fertilizing purposes; and that they did not know of its being used for any other purpose.

An analytical and consulting chemist called by the plaintiffs testified that the article 'was known in commerce as 'high-grade manure salt,' or 'high-grade sulphate of potash;" 'that he did not know the predominating name under which they were sold; that they were called 'sulphate of potash' and 'high-grade manure salt;' that the term 'manure salt' was applied to perhaps only three articles, kainit, sulphate of potash (so-called) or the double sulphate of potash and magnesia, and muriate of potash and kieserit; that the articles in suit, as far as he knew, were generally used in the manufacture of fertilizers;' and that any of the chemicals used in fertilizers would not injure vegetation if mixed with something else, or lightly sprinkled on the soil, but would if applied in large quantities.

The same witness testified that the article was also used in the manufacture of alum, and of nitrate of potash for making gunpowder; and witnesses called by the defendant testified that it was used for making alum, refined potash, and bichromate of potash.

An analytical chemist called by the defendant testified that he had made analyses of the samples produced by the plaintiff, showing that they contained from 49.19 per cent. of potash and 91.05 per cent. of sulphate of potash to 51.62 per cent. of potash and 95.67 of sulphate of potash; that the chemical difference between these samples and those produced by the other witnesses for the plaintiffs was only in the degree of purity, the former containing a small amount of muriates; and that the two articles were two kinds of the same substance,-sulphate of potash.

The defendant moved the court to direct the jury to return a verdict for the defendant, on these grounds: (1) That the article in suit is provided for in the tariff act of 1883 eo nomine as 'sulphate of potash;' (2) that the clause 'all substances expressly used for manure' means only substances used for or as manure, and not substances used in the manufacture of manure or fertilizers; (3) that this article is 'sulphate of potash,' and is provided for in said tariff act eo nomine as 'sulphate of potash,' a specific expression, and therefore, even if otherwise covered by the general expression 'all substances expressly used for manure,' is not provided for under such general expression; (4) that the plaintiffs had not proved facts sufficient to enable them to recover. The court denied the motion, and the defendant excepted.

The defendant then moved the court to allow the case to go to the jury upon the question whether the article in suit was a 'substance expressly used for manure.' The court denied this motion, also, and the defendant again excepted.

The jury returned a verdict for the plaintiffs by direction of the court. 38 Fed. Rep. 908. Judgment was rendered on the verdict, and the defendant, on October 16, 1886, sued out this writ of error.

Mr. Justice Brewer, dissenting.

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

Edwin B. Smith, for defendants in error.

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