Fisk v. Seeberger

• Decision Date: 02 May 1889
• Citation: 38 F. 718
• Parties: FISK et al. v. SEEBERGER.
• Court: U.S. District Court — Northern District of Illinois

38 F. 718

FISK et al. v. SEEBERGER.

United States District Court, N.D. Illinois.

May 2, 1889

P. L Shuman, for plaintiffs.

Graham H. Harris, Asst. U.S. Atty., for defendant.

BLODGETT J.,

(charging jury). You are all of you in a general way familiar with the rule that the jury only find the facts in the case under the testimony. The court instructs you as to the law of the case, and such instruction is obligatory. You are to determine these questions of fact from the weight and satisfactory character of the testimony which is adduced in the case by each party. The suit is brought by the plaintiffs to recover back duties which they paid under protest, under the claim that the collector should have assessed these goods for duty under clause 448 of Heyl's Compilation of the Customs Laws, as materials for making and ornamenting hats, at a duty of 20 per cent ad valorem. The plaintiffs protested against the assessment made by the collector, paid the duties under protest, and took an appear to the secretary of the treasury, where the action of the collector was affirmed; whereupon they brought this suit, as by law they are allowed to do, in order to test the legality of the collector's action. It is a method provided by law, by which an importer can have corrected any error which the collector may make in the classification or assessment for duty of the goods which he imports. The law fixes the duty arbitrarily, under certain classifications or descriptions, and the collector of course, is liable to make mistakes, and make a erroneous or illegal classification of goods, in which event the proper procedure for the importer is to pay the duties under protest, and then bring his suit against the collector for the excess of duties paid. As has been properly stated to you by counsel, this is not a controversy in which any feeling should be invoked. It simply presents dry questions of fact and law,-- questions of fact to be determined by the jury, and the questions of law to be determined by the court. I have already taken from your consideration all the goods which are described as 'lace or bead work' and 'bead ornaments,' because I am clearly of opinion, as a question of law, upon the evidence adduced on the part of the plaintiffs, that these goods come under the clause of the law which fixes a duty on 'beads or bead ornaments,' and as such are specifically dutiable at 50 per cent. ad valorem. It is suggested on the part of the defendant that they might have been dutiable at 25 per cent., as jet, or imitation of jet. But it makes no difference whether the collector made a mistake or not in regard to classifying them as beads, rather than classifying them as jet. The only question is, did he err in not classifying them as material for making or ornamenting hats, bonnets, and hoods? The plaintiffs, if they thought it probable or possible that these goods should have been passed as jet or imitations of jet, could have made their protest in the alternative,-- that is, if not dutiable as material for hats, bonnets, and hoods, then they were dutiable as jet, or jet ornaments, or imitations of jet,-- and thereby save the questions by charging the collector with two mistakes, as you may say. And I will premise further that, in asserting that these goods are dutiable as material for making and ornamenting hats at 20 per cent. ad valorem, the plaintiffs have the burden of proof. They are obliged to satisfy you by a preponderance of testimony, or by satisfactory testimony, that these goods are, and only are, material for making and ornamenting hats, bonnets, and hoods. The burden of proof,-- the laboring oar, so to speak,-- is with the plaintiffs. I make this observation here because one of the best and most satisfactory pieces of evidence which can be adduced here in order to enable the jury and the court to fully understand just the character of these goods, and possibly to have some idea as to what their use and classification, should be, is the production of samples of the goods themselves; and with reference to the goods now left before you for consideration there is but one sample produced. That is the sample No. 146,289, which purports to be a sample of the goods known in the invoice as 'metal laces.' I will say further that if you feel yourselves unable to determine whether these goods are or are not material for making or ornamenting hats, then you would have a right to find a verdict for the defendant, for insufficiency of testimony on the part of the plaintiffs. If, when you go to your room, you are left so much in doubt of the character of these goods from the testimony which is adduced before you in the absence of samples, that you are unable to determine whether they are properly hat trimmings, and nothing but hat trimmings, in ordinary parlance, then you would be justified in finding a verdict for the defendant generally, because of the unsatisfactory nature of the testimony adduced by the plaintiffs.

I have allowed the plaintiffs to proceed and offer such testimony to you as they had at control; it being conceded that the plaintiffs have lost their samples, or are unable to produce them, and the government having none. Then the testimony on the part of the plaintiffs tends to show that all these goods described in the various invoices of August 31st, of August 25th, of September 7th, and September 15th, which are now in question before you, are materials for making or ornamenting hats, bonnets, and hoods. The testimony on the part of the plaintiffs tends to show this. You are to say whether you are satisfied from that testimony. I may say further that the mere fact that a dealer in millinery goods has imported these goods is not the controlling fact at all. The question is what use are these goods adapted to, and what is the principal or predominating use to which they are applied? You are all of you far enough along in the experiences of life to know that a commodity may be made specially for one use, and yet be found to be equally as well adapted to many other uses. And if these goods, although made expressly for the purpose of being used by milliners in making and ornamenting hats, bonnets, and hoods, have become applicable to other uses to such an extent that you can say that the making and ornamenting of hats is not their chief and principal use, then the...