Hahn v. United States

• Decision Date: 28 February 1900
• Docket Number: 55.
• Citation: 100 F. 635
• Parties: HAHN v. United STATES.
• Court: U.S. Court of Appeals — Second Circuit

100 F. 635

HAHN v. United STATES.

No. 55.

United States Court of Appeals, Second Circuit.

February 28, 1900

Everit Brown, for appellant.

Jas. D Baker, for appellee.

Before WALLACE, LACOMBE, and SHIPMAN, Circuit Judges.

LACOMBE Circuit Judge.

The merchandise in question comprised small cups, shoe-hook and glove-hook handles, knife handles, paper weights, slabs for match boxes and for blotting papers, and similar articles. They are manufactured wholly of agate or of onyx, onyx and agate being substantially the same, excepting that the mineral is called agate when it has stripes, and onyx when it is all of one color. The relevant provisions of the tariff act of March, 1883, are:

Paragraph 480: 'Precious stones of all kinds, ten per centum ad valorem.'

Paragraph 596, Free List: 'Agate, unmanufactured.'

Section 2499: 'There shall be levied * * * upon every non-enumerated 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.'

Section 1513: '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 on all articles manufactured, in whole or in part, not herein enumerated or provided for, a duty of twenty per centum ad valorem.'

The collector classified the importations for duty at 20 per cent. as nonenumerated articles, manufactured in whole or in part. The importer protested, claiming that by similitude (under section 2499) they should be charged with the same rate of duty which is levied upon precious stones. The board of general appraisers reversed the collector, and sustained the importer's claim. The court reversed the board, and sustained the collector.

The undisputed facts of the case and prior decisions of the courts seem to lead to but one conclusion. This court held in Erhardt v. Hahn, 5 C.C.A. 99, 55 F. 273, that 'undoubtedly, agate stones * * * are 'precious stones,' within the common acceptation of the term certainly some varieties of them are; and, of course, they were known in trade and commerce and to lexicographers by that generic term. ' The board of general appraisers in the case at bar hold that agate is one of the precious stones. Indeed, no other conclusion was possible under the testimony, which showed that the term 'precious stones' commercially embraced not only the diamond sapphire, emerald, pearl, opal, and turquoise, but also the garnet, beryl, topaz, rock crystal, lapis lazuli, agate onyx, jade, amethyst, tiger-eye, chalcedony, bloodstone moonstone, tourmaline, chrysoprase, etc., and that in this enumeration agate by no means occupied the lowest place either in hardness, susceptibility to high polish, beauty, or rarity. The brief of counsel for the United States contains the statement that the articles are made of the same material as 'precious stones' so called. This court further held in Erhardt v. Hahn, supra, that the term 'precious stones' applied only to the mineral substances embraced within it while they remained stones, and that articles like those in suit had been advanced beyond that condition, and had become completed commercial articles known and recognized in trade by specific and distinctive names other than the name of the material, and have been put into a completed shape designed and adapted for particular uses. No one here questions this conclusion. The evidence in the case at bar shows that the articles are known to the trade and bought and sold as 'agate penholder handles,' 'agate shoe-hook handles,' 'agate slabs,' 'agate rollers,' 'onyx glove-hook handles,' etc. That they are no longer within paragraph 480, but are separate manufactures, subject to be classified under whatever other provision of the tariff act may be found properly to cover them, is conceded by both sides. Moreover, both sides concede and insist that these articles are not enumerated in any of the 821 paragraphs which make up the free and dutiable schedules of the act of 1883. Not only is there no enumeration of them by their tradenames, but no general phraseology can be found in any of the numerous catch-all clauses with which the schedules are interspersed which can be strained sufficiently to hold them; wherefore they are left exposed to the operation of the general catch-all clauses which were devised to seize hold of all nonenumerated articles. ...