ROSSMAN V. HEDDEN, 145 U. S. 561 (1892)

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U.S. Supreme Court

Rossman v. Hedden, 145 U.S. 561 (1892)

Rossman v. Hedden

No. 332

Argued April 25, 1892

Decided May 16, 1892

145 U.S. 561


Plain glazed and plain enamelled tiles, imported in February, May and June, 1886, were subject to a duty of fifty-five percent as other earthenware not specially enumerated.

The classification of a dutiable article is to be determined as of the date when the law imposing the duty was passed.

The Court stated the case as follows:

This was an action brought in the Circuit Court of the United States for the Southern District of New York to recover duties alleged to have been paid under protest upon three importations of tiles by the steamships Canada, Furnessia, and Rhaetia, entered at the port of New York in 1886. The case was tried by the circuit court (Lacombe, J.) and a jury in October, 1888.

From the bill of exceptions it appears that the plaintiff introduced testimony showing the importation of the tiles described in the bill of particulars, and that the defendant, as collector of customs, levied and collected duty at 55 percent ad valorem thereon, and that the plaintiff in due season protested, and appealed to the Secretary of the Treasury, and brought suit within the time prescribed by law.

The ground of the objection stated in the protests was, as to the Furnessia, that the tiles "were dutiable at 35 percent ad valorem under § 2499, Rev.Stat., by similitude to

Page 145 U. S. 562

encaustic tiles," and as to the Canada and Rhaetia, that the tiles

"were dutiable at 20 percent ad valorem under Tariff Schedule B, as paving tile, directly or by virtue of § 2499, Rev.Stat. If not so dutiable, then they should pay 35 percent, by similitude to encaustic tiles, under said section and schedule."

Testimony was given showing

"that upon the entry ex Canada, February 24, 1886, a portion of the duty was paid on the 26th day of February, 1886, and the remainder on the 10th day of May, 1886. The only goods in this suit upon said entry were two packages of tiles, marked 'D. F. & T., 25,306, 25,307,' on which duty was taken on entry at 35 percent ad valorem, the same being entered as 'encaustic titles.' Both of said packages were delivered to the plaintiff on or before March 18, 1886. Duties on said entry to the amount of $126.10 were paid February 26, 1886 (the date of said entry), and an increased duty of $14.30 (total $140.40) was paid May 10, 1886. The bill of particulars claimed as an excess of duty on this entry, $12.20. . . ."

Testimony was further given that all the tiles in dispute were called in trade "plain glazed and plain enameled tiles."

Those having the color in the glaze are termed "enameled," and those having the color in the body are termed "plain glazed."

The goods were described in the plaintiff's entries as follows: 1. By the Canada, February 26, 1886, two packages encaustic tiles. 2. By the Furnessia, May 25, 1886, eight casks plain white tiles. 3. By the Rhaetia, June 4, 1886, eight hogsheads, one case, earthenware tiles. The invoice by the Furnessia described the goods as "glazed earthenware tiles."

Witnesses, after testifying to the use of tiles on March 3, 1883, and prior thereto, were asked as to their use since, and for what purposes they were used or intended to be used now, or for what purposes imported; but the court sustained objections to the questions, and plaintiff excepted.

Testimony was adduced on plaintiff's behalf

"by dealers in tiles of long experience, that on March 3, 1883, and immediately prior thereto, the tiles in suit were used in this country

Page 145 U. S. 563

to lay down in cement in vestibules, on hearths, bathroom floors and walls, on kitchen floors, under sinks, interspersed with unglazed tiles on floors in church chancels, conservatories, hospital floors and walls, and generally in places where either a nonabsorbent cleanly tile was required or where there was little wear and tear, and a particularly ornamental effect was desired,"

and also

"by importers and large dealers in tiles of many years' experience that at the date of the passage of the Act of March 3, 1883, the term, 'paving tile' had no meaning in the trade and commerce of this country different from its ordinary meaning, and meant tiles used for paving, and gave evidence tending to show that plaintiff's importations per Canada and Rhaetia were such tiles,"

and also

"by architects of long experience in this country that plaintiff's tiles were used for paving purposes; that tiles used for hearths were considered paving tiles; that the hearth, architecturally, was a part and an extension of the floor, and that a paving tile was a tile made to be laid horizontally and flat, and intended so to be used."

"It appeared, however, that the principal use of the tile imported per Furnessia, represented at the trial by sample Exhibit No. 5, was for walls, though sometimes used for hearths, bathroom floors, and under kitchen sinks and other places at the date of the passage of the Act of March 3, 1883. That it was used for the same general purposes as glazed encaustic tiles."

"That encaustic tiles consist of two varieties, glazed and unglazed; the unglazed being generally used for floors and hearths, and the glazed being generally used on walls, though sometimes for hearths and other places."

"Testimony was also given on the part of the plaintiff, by large dealers in earthenware of long experience, that the term 'earthenware,' as used in the trade and commerce of this country, does not, and did not at the date of the passage of the Tariff Act of March 3, 1883, include tiles of any kind, but referred principally to tableware and pottery."

"It further appeared that all the tiles in suit and all paving and encaustic tiles described in Tariff Schedule B are made

Page 145 U. S. 564

of clay, all baked in kilns and generally made by the dust process, from pulverized clay molded under pressure in a dry state."

"Witnesses on the part of the defendant, including manufacturers of tiles, officers of tile companies, dealers, and salesmen of tiles, tile designers, and architects, all of large and long experience, testified that the term 'paving tile' had a well known designation and definition in the trade and commerce of this country on March 3, 1883, and prior thereto, and referred to an unglazed, hard-baked tile used for flooring purposes, and that the terms 'paving tile' and 'flooring tile' at that time were interchangeably used to denote the same kind of a tile; that the tiles in suit were made of a different kind of clay from the so-called 'paving tile;' that the body of the plaintiff's tiles in suit was softer, more porous, and a more expensive body than the body of a paving tile; that the body of the tiles in suit was composed of china clay, Cornwall stone, and flint, and some other materials, costing from $15 to $22 a ton, while the clay used in the manufacture of paving tile is a different and cheaper kind of clay, worth $1.50 a ton, and is not porous and not absorbent, and which body is baked hard to stand the wear and tear of being trod or walked upon; that paving tiles were used to be walked and trod upon where there was wear and tear, and that the tiles such as plaintiff's were used for walls, facings, dadoes, and decorative purposes, and sometimes used in modern hearths, which are protected by a fender, and raised from the floor, and not to be walked upon, and are considered part of the mantels and grates and not as a part of the floor; that such tiles as plaintiff's have been used somewhat for hearths since March 3, 1883, and were not used to any extent on hearths prior to March 3, 1883."

"That the tiles in suit were not adapted for any wear and tear, and would be dangerous to walk upon on account of their slippery surface, and easily become broken if used for flooring purposes, except for ornament on floor borders. That encaustic tiles are made of several kinds of clay, instead of one only, with the colors burned in."

"That encaustic tiles are both glazed and unglazed; that the

Page 145 U. S. 565

unglazed encaustic were sometimes used for flooring purposes, and the glazed encaustic were for ornamental purposes, and for walls, dadoes, and facings."

"The tiles are now generally made by the dust process, dry clay being subjected to great pressure in molds, and then baked; that the paving tiles are baked once, the glazed or enameled tiles are baked twice; that the modern hearth is about eighteen or twenty inches wide, guarded by a brass or iron fender, and is not used to be walked upon, and that such hearth is not considered by architects to be a part of the floor."

"The testimony of a potter of very long experience tended to show that in his experience, these articles were earthenware."

During the course of the trial, the court held that there was no "room for the similitude doctrine," and that there was only a single question for the jury, "whether they are paving tiles or not,"and plaintiff excepted.

As to the importation by the Canada, the court instructed that the verdict must be for the defendant "for the reason that the payment was not in fact made to obtain possession of the goods." As to that by the Furnessia, the court directed a verdict for the defendant, because the protest of the plaintiff restricted him to the single claim of similitude to encaustic tile, which could not be sustained upon the testimony. As to the importation by the Rhaetia, the court charged:

"The old English word 'ware,' with which you are familiar in the combination of hardware, tinware, etc., is a comprehensive word. It is defined by Worcester and Webster as 'goods, commodities, merchandise;' and in the same dictionaries the term 'earthenware' is defined as 'ward made of earth or clay.'"

"Reading for the word 'ware' the definition which the dictionary gives for it, we will find as the definition of 'earthenware,' 'goods, commodities, or merchandise made of earth or clay.'"

"That, you see, is a very general, broad, and comprehensive word, and it was evidently used by Congress in that same sense, for we find the word 'earthenware' used as the heading of a schedule which contains articles as dissimilar as a porcelain teacup, a Parian vase, a fire brick, and a slate pencil. "

Page 145 U. S. 566

"To which plaintiff, by his counsel, then and there excepted."

"It is sufficiently broad, this word 'earthenware,' to cover tiles, to cover the articles imported by the plaintiff here as they appear and have been described by the witnesses. Therefore, unless they are covered by some other provision of the tariff act, they must be held dutiable as earthenware, and the determination of the collector in that respect sustained."

"To which the plaintiff, by his counsel, then and there excepted."

Several instructions were requested by plaintiff and refused, but, as the affirmative rulings involved the disposition of the questions presented by them, they need not be repeated here.

The jury found a verdict for the defendant, and judgment was entered thereon, and, a motion for new trial having been overruled, the case was brought by writ of error to this Court.

The charge of the court is reported in full in 37 F. 99.

By section 6 of the Act of March 3, 1883, 22 Stat. 488, 491, 495, c. 121, the following sections of the Revised Statutes were reenacted as amended.

"SEC. 2499. There shall be levied, collected, and paid on each and every nonenumerated article which bears a similitude, either in material, quality, texture, or the use to which it may be applied, to any article enumerated in this title as chargeable with duty, the same rate of duty which is levied and charged on the enumerated article which it most resembles in any of the particulars before mentioned, and if any nonenumerated article equally resembles two or more enumerated articles on which different fates are chargeable, there shall be levied, collected, and paid on such nonenumerated article the same rate of duty as is chargeable on the article which it resembles paying the highest duty, and on all articles manufactured from two or more materials the duty shall be assessed at the highest rates at which the component material of chief value may be chargeable."

"SEC. 2502. There shall be levied, collected, and paid upon all articles imported from foreign countries, and mentioned in the schedules herein contained, the rates of duty which are, by the schedules, respectively prescribed, namely: "

Page 145 U. S. 567


"Brown earthenware, common stoneware, gas retorts, and stoneware not ornamented, twenty-five percentum ad valorem."

"China, porcelain, Parian, and bisque, earthen, stone, and crockery ware, including plaques, ornaments, charms, vases, and statuettes, painted, printed, or gilded, or otherwise decorated or ornamented in any manner, sixty percentum ad valorem."

"China, porcelain, Parian, and bisque ware, plain white, and not ornamented or decorated in any manner, fifty-five percentum ad valorem."

"All other earthen, stone, and crockery ware, white, glazed, or edged, composed of earthy or mineral substances, not specially enumerated or provided for in this act, fifty-five percentum ad valorem."

"Stoneware above the capacity of ten gallons, twenty percentum ad valorem."

"Encaustic tiles, thirty-five percentum ad valorem."

"Brick, fire-brick, and roofing and paving tile, not specially enumerated or provided for in this act, twenty percentum ad valorem."

"Slates, slate pencils, slate chimney pieces, mantels, slabs, for tables, and all other manufactures of slate, thirty percentum ad valorem."

"Roofing slates, twenty-five percentum ad valorem."

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