Dwight v. Merritt

• Decision Date: 11 May 1891
• Citation: 140 U.S. 213,35 L.Ed. 450,11 S.Ct. 768
• Parties: DWIGHT et al. v. MERRITT, Collector
• Court: U.S. Supreme Court

140 U.S. 213

11 S.Ct. 768

35 L.Ed. 450

DWIGHT et al. v. MERRITT, Collector.

May 11, 1891.

Edwin B. Smith, for plaintiffs in error.

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

LAMAR, J.

This was an action by an importer, the testator of the present plaintiffs in error, against the late collector of the port of New York, to recover an alleged excess of duty exacted on a cargo of iron rails imported from Pillau, Russia, in June, 1880. The collector assessed a duty on the merchandise at 70 cents per hundred pounds, under Schedule E, § 2504, Rev. St., as 'iron bars for railroads or inclined planes.' The importer claimed that the merchandise was dutiable at only $8 per ton, under the following provision of the same schedule: 'Wrought scrapiron of every description: eight dollars per ton. But nothing shall be deemed scrap-iron except waste orrefuse iron that has been in actual use, and is fit only to be remanufactured.' The importer paid the duties as assessed, duly protested against their exaction, and appealed to the secretary of the treasury, who affirmed the ruling of the collector. Thereupon this action was brought to recover the difference between the duty exacted and what the importer claimed should have been exacted, amounting to $2,880.65. The case was tried before Judge SHIPMAN and a jury, resulting in a verdict and judgment in favor of the collector. To review that judgment this writ of error is prosecuted. The bill of exceptions shows the following facts: The rails in question were completed rails, and were imported from Russia by Waterman & Co., of Philadelphia, for the purpose of breaking them up and remanufacturing them in Waterman's mill, at Danville, Pa. They were in fact so disposed of. The rails were not suitable for use in this country, in the condition they were imported, being of too high a pattern to be safe, too short, and too heavy and expensive. They were fit in this country only for remanufacture. There was no evidence that they had ever been used for any purpose whatever, or had ever been laid on a railroad in Russia, although they had been sent to that country for that purpose; and were, when imported, somewhere from three to eight years old, and rusty. The evidence of the plaintiff's witnesses showed that the rails, as impoted , were too expensive for profitable use on American railroads; and that at the time of their importation it would have paid better to import a new rail of this character, provided it could be entered under the scrap-iron schedule, and remodeled for the purpose of making railroad rails, than to buy pig-iron, and manufacture the rails from that, because, for the purpose of making new iron rails, these rails were three processes further advanced than pig-iron would be. Those witnesses also testified that they could not say whether or not the rails in question had ever been in actual use prior to their importation. The plaintiff offered to show by a witness who was familiar with the manufacture of iron, what the terms 'scrap-iron' and 'waste iron' usually meant in the trade, or in commercial usage, but the defendant objected; and the court sustained the objection, on the ground that these terms were defined by the statute. Whereupon the plaintiff saved an exception. Another witness called by the plaintiff was allowed to testify, describing the different varieties of scrap-iron, the manner in which it originated, and the purposes for which it was afterwards used. The defendant's witnesses testified, in substance, that the rails in question were all of the same length and weight, and were not broken on the edges or elsewhere; but, on cross-examination, they admitted that they varied in weight somewhat, there being 63 pounds difference between the heaviest and the lightest. The court charged the jury that, under the evidence and the law of the case, the only question was whether the iron had been in actual use prior to its importation, for the requirements of the statute, in respect to actual use, applied as well to waste as to refuse iron; that the burden of proof was on the plaintiff to satisfy the jury, by a fair preponderance of the evidence, that the rails had been in actual use; and that, unless that fact were so proven, their verdict should be for the defendant. Counsel for the plaintiff excepted to those portions of the charge above mentioned, and the only real question to be determined here is as to the correctness of those instructions; for, if they were correct, the evidence offered as to the commercial designation of the term 'scrap-iron' was immaterial, and there was no error in excluding it from the jury.

The provision of the statute invoked by the plaintiff is found in Schedule E, § 2504, Rev. St., and, with its punctuation, as published in the second edition of the Revised Statutes, is as follows: 'Wrought scrap-iron of every description: eight dollars per ton. But nothing shall be deemed scrap-iron except waste or refuse iron that has been in actual use, and is fit only to be remanufactured.' It is clear that the rails were dutiable either under the clause claimed by the collector to embrace them, or under the scrap-iron clause above quoted, invoked by the plaintiffs in error, since no provision of the metal schedule appears to have, or is claimed to have, any application to the question, and they were confessedly not on the free...