US SUPREME COURT DECISIONS

Cigarette paper, of suitable size and quality to be used in making cigarettes, and pasteboard covers therefor of corresponding size, imported separately and entered together with the intention to combine them with paste into cigarette books for the use of smokers, are subject to a duty of seventy percent ad valorem as "smokers' articles" under schedule N, and not to a duty of fifteen per cent ad valorem as "manufactures of paper" under schedule M, of the Tariff Act of March 3, 1883, c. 121.

This was an action brought December 17, 1885, by Isaacs against the collector of the port of New Orleans to recover back an alleged excess of duties paid under protest upon twenty-five cases of cigarette paper, and upon twenty-three cases of pasteboard covers for cigarette paper, both imported by the plaintiff in June, 1885, the paper at the port of New Orleans, and the covers at the port of New York and thence transferred in bond to New Orleans, and the two entered by the plaintiff simultaneously at New Orleans for withdrawal for consumption.

The collector, and the Secretary of the Treasury on appeal, held both importations to be subject to the duty of seventy per cent ad valorem imposed by schedule N of the Tariff Act of March 3, 1883, c. 121, on "pipes, pipe bowls, and all smokers' articles whatever, not specially enumerated or provided for in this act." 22 Stat. 513.

The plaintiff contended that both importations were within schedule M of the same act, imposing a duty of fifteen per cent ad valorem on "paper, manufactures of, or of which paper is a chanrobles.com-red

Page 148 U. S. 649

component material, not specially enumerated or provided for in this act." 22 Stat. 510.

At the trial before a jury, it was agreed by the parties, without contention,

"that the paper, when imported, was cut into small pieces of the size proper for making cigarettes, and was put up in packages wrapped in paper, the packages being about six or eight inches square, and that these packages were again enclosed in large cases or boxes for sea transportation; that the contents of each of the smaller packages referred to were made up of said small pieces of paper, cut to the size proper, and of the proper character of paper, for making cigarettes; that said cigarette paper, as imported, was in no manner attached together in any form of binding, but was separated into divisions of about 250 pieces of paper by the interposition of a piece of paper of a different color, cut of the same size, so that it subdivided the paper into the divisions of the proper size and number of leaves for the contents of the book of leaves of cigarette paper, of the ordinary size of such books as sold in the markets."

The plaintiff introduced evidence

"tending to show that the paper of which the small cut papers were made was made of a peculiar material, and by a process fitting it to be used as wrappers for cigarettes, and that the paper was manufactured in large sheets, and afterwards cut into the form of small pieces of paper as imported, before importation, by machines contrived for that purpose; that the paper was so cut to adapt it to use as wrappers for cigarettes; that cigarettes, as manufactured, consist of a small quantity of disintegrated tobacco leaves wrapped about and held in place by the paper, and that in consumption, both the tobacco and the paper are set on fire, and both consumed or smoked by the smoker; that it was the intention of the plaintiff at the time of importation, and his motive in making said importation in said form, to manufacture the said material into what are known as 'cigarette books;' that the process of such manufacture is to separate the paper, as imported, where the colored leaves or subdivisions are located in the paper as imported, and with a brush cover one edge of the paper with flour paste, glue, or some adhesive cement

Page 148 U. S. 650

adapted to cement leaves together at one edge, and then cement the paper into the covers as they are imported; that as to and concerning this particular importation a large portion thereof was so put up and cemented into books by the plaintiff after the same came into his possession by withdrawal and payment of duties; that this was done at the expense of about $400 for hire of workmen to do the work; that a portion of the paper as imported was sold directly to manufacturers of cigarettes, to be used in their factories in making cigarettes for sale as a manufacture and article of commerce; that as to this particular kind or manufacture of paper, the plaintiff was the sole importer thereof into the United States, by special arrangement with the foreign manufacturers thereof; that as an article of retail sale, or jobbing and sale to the retail dealers, the paper has always been sold in this country in the form of books consisting of a certain number of leaves of the paper, cemented together and to the cover, and that in use thereof by the smoker, the leaves are separately torn from the book used in the manufacture of cigarettes by the smoker, and when the leaves are all expended the cover is thrown away as useless; that the function of the cover is simply to protect the by being handled or carried in the pockets of the smokers, and had no other function or use."

The plaintiff thereupon rested his case.

The defendant called as a witness a person connected with the office of the appraisers at the customhouse in New Orleans, who testified that for many years he had been a cigarette smoker, rolling and making his own cigarettes by combining the tobacco and paper himself, and who produced packages of cigarette paper of another kind and greater stiffness than the goods imported, bought at cigar shops in New Orleans, without covers, and held in place as a package by a flexible band, and was permitted by the court, against the plaintiff's objection and exception, to testify that those packages could be used by smokers in the condition in which they were produced, and also that

"it was possible to use the paper in controversy in this case in the form in which it was imported, without pasting

Page 148 U. S. 651

together the edge, or pasting or gluing the paper to connect the cover to make a cigarette book."

The bill of exceptions set forth many instructions requested by either party and given by the court with modifications, as well as other instructions given to the jury, the substance of all which sufficiently appears by the following instructions given, to each of which the plaintiff excepted:

"If you find that the smoker himself, by simply placing the package of small leaves of cigarette paper within the cover and placing the rubber band which adheres to the cover around the cover and the package of small leaves of cigarette paper, can use the book of cigarette paper for all the purposes to which a book of cigarette paper is put by smokers, then the jury should find for the defendant."

"To find that the things imported are smokers' articles, the jury must find that they are ordinarily and distinctively used by smokers in or in connection with smoking, and that they are ready to be so used."

"If the merely laying them together enables the smoker to use them, and he did use them without any process except that of laying them together, they would be smokers' articles; but if, on the other hand, there was a process of manufacture or combination beyond laying together, then they would be materials for smokers' articles, and not smokers' articles."

"If the jury find that the things separately imported are imported separately as matter of business, and not as an evasive device, then they are the materials for the articles, but not the articles themselves; but if the jury find the things, though imported separately, were designed, without any expenditure beyond being put together, to be put and sold together, and were imported separately merely to escape a higher rate of duty, and not from motives of business, then the separate things are to be classed as parts of a whole, and not simply as materials."

The jury returned a verdict for the defendant, upon which judgment was rendered, and on May 16, 1889, the plaintiff sued out this writ of error. chanrobles.com-red

Page 148 U. S. 652