JUNGE v. HEDDEN 146 U.S. 233 (1892)

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: [146 U.S. 233, 234]   '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, [146 U.S. 233, 235]   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.

[146 U.S. 233, 237]   Asst. Atty. Gen. Maury, for defendant in error. [146 U.S. 233, 238]  

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

In Arthur v. Butterfield, 125 U.S. 70, 76 , 8 S. Sup. Ct. Rep. 714, it was said by Mr. Justice Field, speaking for the court: 'To place articles among those designated as 'enumerated,' it is not necessary that they should be specifically mentioned. It is sufficient that they are designated in any way to distinguish them from other articles.' And this language was quoted with approval, as defining the general scope of the similitude clause in the customs acts, in Mason v. Robertson, 139 U.S. 624, 627 , 11 S. Sup. Ct. Rep. 668, in which it was held that bichromate of soda was subject to the duty of 25 per centum ad valorem, imposed under the act of March 3, 1883, c. 121, upon 'all chemical compounds and salts, by whatever name known,' and not subject, by virtue of the similitude clause, to the duty of three cents per pound, imposed on bichromate of potash.

If these importations should be held as enumerated, within the rule thus laid down, then sections 2499 and 2513 have no application; and this is no more than to inquire whether they came within the paragraph prescribing the tax on 'articles composed of India rubber.'

In common usage, 'article' is applied to almost every separate substance or material, whether as a member of a class, or as a particular substance or commodity.

The learned circuit judge was of opinion that the word 'articles' was used in this paragraph in a broad sense, and covered equally things manufactured, things unmanufactured, and things partially manufactured; and he sustained this view by reference to the use of the word elsewhere in the statute. Thus, in section 2500, relating to reimportations, they are referred to as 'articles once exported, of the growth, product, or manufacture of the United States.' Section 2502 commences: '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,' etc. Section 2503 reads: 'The following articles, when imported, shall be exempt from duty,' and then follows the free list, including [146 U.S. 233, 239]   'articles imported for the use of the United States,' and 'articles, the growth, produce, and manufacture of the United States.' We agree with the circuit court that the word must be taken comprehensively, and cannot be restricted to articles put in condition for final use, but embraces as well things manufactured only in part, or not at all.

But it is said that this dental rubber is not 'composed of India rubber,' within the intent and meaning of the statute, because of the admixture of sulphur and coloring matter; or, in other words, that it is not wholly so composed. The prior tariff act in section 2504 of the Revised Statutes (Rev. St. p. 477) contained the same paragraph as that under consideration, except that it read, 'articles composed wholly of India rubber.' The preceding paragraph related to 'braces, suspenders, webbing, or other fabrics, composed wholly or in part of India rubber.' The act of 1883 retained the words 'wholly or in part,' as applied to fabrics, but omitted the word 'wholly' in connection with articles. It is not to be doubted that this omission was advisedly made. The manifest intention was that articles of India rubber should not escape the prescribed taxation because of having been subjected to treatment fitting them for a particular use, but not changing their essential character.

Such is the fact with the article in question. It has not lost its identity by a chemical change, and become a new and different species. It is not crude rubber, nor milk of rubber, nor is it a fabric of rubber; but it is rubber rendered elastic and more attractive by coloring.

Nor are we impressed with the argument that, being rubber itself, it must be regarded as a material, and not an article composed of rubber, for its adaptation to dental purposes has differentiated it commercially. Washing and scouring wool do not make the resulting wool a manufacture of wool; cleaning and ginning cotton do not make the resulting cotton a manufacture of cotton; but sulphur and coloring matter, when applied as here, make the resulting rubber, while still remaining rubber, an article of rubber, as contradistinguished from rubber crude, or rubber merely cleansed of impurities.

Judgment affirmed.