THIS cause was brought up from the Circuit Court of the United States for the Southern District of New York, on a certificate of division in opinion between the judges thereof.
It was an action brought up by the plaintiffs against the Collector of New York for the return of certain duties, paid under protest, and charged to have been illegally exacted upon the importation of glass tumblers.
The tariff of 3d August, 1846, (9 Stat. at L., pp. 44, 45, ch. 74,) enacted duties on glass, as follows, viz.:
'Schedule B. Forty per centum ad valorem.
'Glass cut.
'Schedule C. Thirty per centum ad valorem.
'Glass tumblers, plain, moulded, or pressed; not cut or punted.'
The demand of the plaintiffs, Binns & Halstead, for alleged overcharge of duties paid to the collector, was founded on the importations of glass tumblers of two kinds:
1. Glass tumblers, the entire surface of the bottom of which had been smoothed by the glasscutter, or grinder, previous to their importation into the United States.
2. Glass tumblers, on the sides of which ornamental figures had been engraved by the glasscutter, or engraver, previous to their importation into the United States.
Upon these tumblers the collector charged a duty of forty per cent. classing them under schedule B. In ten importations this duty of forty per cent. amounted to $6,695.70, whereas the plaintiffs alleged that it was $730.20 too much, averring that the tumblers properly belong to Schedule C, and to recover this excess the present action was brought.
Upon the trial the jury found a verdict for the defendant. But upon the trial the counsel for the plaintiffs excepted to the charge of the court, which exception was reserved for argument.
Upon which said argument it occurred as a question whether, according to the true construction of the act of Congress of 30th July, 1846, entitled, 'An act reducing the duty on imports, and for other purposes,' glass tumblers, the bottoms of which have been smoothed or flattened by the process of cutting or grinding, and glass tumblers which have been engraved on the sides by a similar process, should be charged with the duty of 40 per centum ad valorem, under schedule B of said act, as glass cut,' or with the duty of 30 per centum ad valorem, under schedule C of said act, as 'glass tumblers, plain, moulded or pressed, not cut or punted.'
On which question the opinions of the judges of the court were opposed.
Whereupon, on motion of the said plaintiffs, by their counsel, that the point upon which the disagreement hath happened may, during the term, be stated under the direction of the judges, and certified under the seal of this court to the Supreme Court to be finally decided:
It is ordered, that the following statement of facts, which is made under the direction of the judges, be certified according to the request of the said plaintiffs, and the statute in such case made and provided. Statement of Facts.
That the tumblers in question consisted of two kinds, as follows: 1. Glass tumblers, the entire surface of the bottoms of which had been smoothed by the glasscutter, or grinder, previous to their importation by the plaintiffs.
2. Glass tumblers, on the sides of which ornamental figures had been engraved by the glasscutter or engraver previous to such importation.
That the tumblers in question, of the first class, are only known in trade and commerce in the city of New York as 'plain tumblers,' or as 'plain smooth-bottomed tumblers,' or as 'plain tumblers with flattened bottoms.'
That the tumblers in question of the second class are only known in trade and commerce in said city as 'engraved tumblers.'
That the tumblers in question (of both classes) are not known in trade and commerce in said city as 'cut glass.'
That all the material witnesses for the plaintiffs were merchants, importing and dealing in glassware.
That all the material witnesses for the defendant were manufacturers of glassware, or glasscutters and grinders.
That the designation 'cut glass,' as used in trade and commerce in said city, applies only to tumblers, the sides of which have been cut or ground, and that the importers of glassware and dealers in glassware in said city, do not consider tumblers of the description in question in this suit as coming within the designation, and if they received an order from a customer for 'cut glass tumblers,' would not regard it as including either smooth-bottomed or engraved tumblers.