This was a writ of error to reverse a judgment in the Circuit Court for the Southern District of New York. That judgment was rendered in favor of Allen et al., the original plaintiffs, in a suit to recover back the amount of duties which Lawrence, the defendant, as collector of the port of New York, had demanded and received on the importantion of certain boxes of India-rubber shoes, in September, A. D. 1845, and which the importers claimed to be by law free. The duties were, therefore, paid under protest; and at the trial, the court, among other things, ruled, that, on the facts proved, these shoes were not, in point of law, subject to any duty; and, consequently, a verdict was returned for the plaintiffs below for the amount which had been paid to the collector, and interest.
The facts proved or admitted, which appear material, were, that these shoes consisted wholly of India-rubber, and in different sizes, suited for men, women, and children; that no other work had been expended on them except to dip the moulds or lasts into the milky liquid, as procured from the India-rubber trees, and then dry them over a fire,-performing this process several times, till a proper thickness was obtained. A small ornament was afterwards drawn on some of them, and a coarse stuffing inserted in others, and in this condition they had for many years been imported, and worn without any essential change or addition here, unless in some instances slightly to trim and stretch them on a last. It was also proved that shoes, made in part from India-rubber and in part from cloth or leather, of a thinner and lighter fabric, had been sometimes imported from Europe, and for several years had been extensively manufactured in this country.
The law which governs the question whether these shoes ought to pay a duty of thirty per cent. ad valorem, or be admitted free, is the act of Congress of August 30, 1842 (5 Stat. at Large, 555). In its fifth section, thirty per cent. is imposed 'on India-rubber oil-cloth, webbing, shoes, braces or suspenders, or other fabrics or manufactured articles, composed wholly or in part of India-rubber.' And in the ninth section, among other articles declared to be 'exempt from duty,' is 'India-rubber, in bottles or sheets, or otherwise unmanufactured.'
The court below entertained an opinion, that the clause in this law imposing a duty of thirty per cent. on India-rubber shoes referred to those made in a finished state from that material, after being altered in Brazil from its liquid condition to the more solid state, and to the forms of sheets, shoes, bottles, &c., and that this alteration was not a manufacture, though into a shape designed for use without any material change, and hence, that shoes so made and imported were not dutiable. This view was, undoubtedly, correct to a certain extent, and in some aspects of the subject; but in others it seems to us to involve some errors, which we think ought to be corrected, and which require more extended explanations because overruling the judgment below. Thus, although this act of Congress clearly meant to impose a duty of thirty per cent. on shoes imported, which had been made in part from India-rubber after it had been hardened and fashioned into some crude shape in South America, yet we have no doubt it might likewise intend to impose this duty on shoes made abroad wholly from India-rubber while in its liquid state, and especially if, when so made, such shoes were in a condition to be worn without further material labor on them here, and were made to be so worn, and were in this form often actually worn.
It is our opinion, therefore, that the jury should have been so instructed; and if they were satisfied those shoes had been thus made to be so worn, and, in the language of commerce, if such shoes were called 'India-rubber shoes,' no less than those made here or in Europe in part from India-rubber and in a more finished form, that the duty of thirty per cent. ought to have been paid on them.
Some of our reasons for this opinion are briefly these.