Rossman v. Hedden

Mr. Ohiee Justice Fuller delivered the opinion of the court. ■ By the protest as to the importation by the Bháetia it was. ■claimed that the goods were subject to duty at .twenty per *568 cent, as 'paving tiles, or by similitude to paving tiles, or chargeable-at thirty-ftve per cent by similitude to encaustic tiles. The entry described, the articles as “eight hogsheads, one case, earthenware tiles,” .and the collector assessed them as earthenware composed of earthy substances. Tne court held that the' similitude clause did not apply, and the jury found against the plaintiff upon the only issue submitted to them, namely, whether the articles were paving tiles or earthenware. It was- not contended that these tiles were encaustic tiles, composed of several kinds of clay instead of one only; and as to their identity with paving tiles, defendant’s evidence tended to show that at the time of the passage of the act paving tiles were commercially known as unglazed, hard-baked tiles, and that the tiles in suit were of a different kind of clay, composed of softer, more porous and more expensive clays, and costing ten times as much as paving-tile clay. "We must assume that the tiles were neither encaustic nor paving tiles, and if they properly fell within the fourth paragraph they cannot- be held - to be non-enumerated articles and taxed by similitude. Arthur v. Butterfield, 125 U. S. 70; Mason v. Robertson, 139 U. S. 624. 'The covering of -roofs, floors,.and walls -with tiles made of many different materials is of very ancient origin, and there is much interesting information in respect of their manufacture and that of'pottery to be found in works on those subjects. So far as. this case is Concerned, we see no reason to question the -sufficiency of the ordinary definition of tiles as plates or ■pieces of baked clay, used for covering roofs, floors and walls, and for ornamental work of various kinds,.as well as for drains, etc. And that such pieces being made of earth are earthen/ and being earthen goods, commodities or merchan.dise, are “ earthenware,” we think is clear. ."Webster defines “earthenware” as “vessels, and other utensils, ornaments, or the like, made of baked clay; ”■ and we agree with counsel for defendant in error that the words “ or the like,” and the cross-reference to “pottery,” are broad enough to include the tiles in suit under the fourth paragraph. - The title to Schedule B divides the subjects under it into *569 two classes, “ earthenware,” and “ glassware,” but counsel insists that the groups are -three: “(1) earthenware; (2) tiles, brick, and slate ; (3) glass and glass articles.” Reference is made to the tariff' legislation since 1842 to show that tiles and earthenware were considered different things, and that tiles .were always associated with bricks as similar things. It is argued that this distinction was intended to be preserved in the act under consideration; but, we are of opinion that, this conclusion does not follow, and that it was the intention of Congress to place all of the articles in Schedule B in one or the other of the two classes designated in the heading. All of the schedule relates to glass, except thp first nine paragraphs. The first five, it is conceded, relate solely to earthenware, arid the next four are encaustic tiles; brick, fire-brick, and-roofing and paving tiles; slates,'slate-pencils, etc.; and roofing slates; all consisting of earths, though only two hardened by man. These four are all in some respects in similitude, and although a difference between a Sevres vase and a roofing slate may be admitted, they are not inappropriately placed where they are, and we perceive no adequate ground for holding that they should be treated as a class by themselves. The fact seems to be that these tiles were decorative earthenware tiles, called in trade, as appears from the evidence, plain glazed and plain enamelled tiles, those having the color in the glaze being termed enamelled, and those having the color in the body being termed plain glazed; and in reference to such tiles the department ruling is that they are properly assessed as “ glazed earthenware.” Syn. Dec. 1885, 7051; and see Id. 1877, 3352; Id. 1878, 3705. We think the mew taken by. the court entirely correct, and this disposes also of the importation by the Furnessia. The protest rested upon the sole ground that the articles. “ were dutiable at 35 % ad valorem, under section 2499, Rev. Stat., by similitude to' encaustic tiles.” The articles -were described in plaintiff’s entry as “ eight casks plain white tiles,” and in' the invoice as “glazed earthenware tiles.” The collector taxed them under the fourth paragraph. *570 It appeared that the principal use of these tiles was for walls, though sometimes used for hearths, bath-room floors, and under sinks, and for the same general purposes as glazed encaustic tiles; but if they were covered by the fourth paragraph then they could not be classed with encaustic tiles by similitude. And that these “plain white tiles,”' or “glazed earthenware tiles ” were within that paragraph, follows from what we have already said. There was nothing- to be submitted to the jury. The tiles brought by the Canada were, described in plaintiff’s entry as “two packages encaustic tiles,” and were delivered to plaintiff on or before March 18, 1886. It was shown that a portion of the duty was paid on the day of entry, February 26, and the remainder May 10; As plaintiff had been in possession of these tiles for some weeks before payment of the excess, he did not pay. in order to obtain possession, and the instruction of the' court to find for the defendant was therefore correct. Plaintiff’s counsel insists that he originally paid the difference between paving tiles and encaustic tiles to obtain possession, but as the tiles were described as encaustic, and chargeable by law as such at a duty of thirty-five per cent, this contention is inadmissible. There is nothing to show that the Circuit Court was apprised that plaintiff’s claim was that he had paid the excess between twenty and thirty-five per cent,. and as payment of the excess between thirty-five and fifty-five per cent was made May 10, and the protest filed and appeal taken to the Secretary of the Treasury on that day, it is plain that the Circuit Court was not mistaken as to the facts. . Finally, we are of opinion that the court did not err in excluding evidence as to the purposes for which similar tiles were.used after March 3, 1883, or for what purposes they were intended to be used or were imported, at the time of the trial. This came within the rule that the classification is to be determined as of the date when the law imposing the duty was passed. Curtis v. Martin, 3 How. 106, 109; American Net and Twine Co. v. Worthington, 141 U. S. 468, 471. Judgment affirmed.