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SMYTHE V. FISKE, 90 U. S. 374 (1874)

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U.S. Supreme Court

Smythe v. Fiske, 90 U.S. 23 Wall. 374 374 (1874)

Smythe v. Fiske

90 U.S. (23 Wall.) 374


Under the Tariff Act of July 30th, 1864, 13 Stat. at Large, 210, "silk ties" are chargeable with a duty of 50 ad valorem. They fall under the closing words of the eighth section of that act which enacts "that on all manufactures of silk, or of which silk is the component material of chief value, not otherwise provided for, 50 percent ad valorem" shall be charged. The words "not otherwise provided for" mean not otherwise provided for by previous parts of the section of which they make the closing words, and so exclude reference to the acts of 1867 and 1862, which laid a duty of but 35 percent on "articles worn by men, women, or children, of whatever material made."

Error to the Circuit Court for the Southern District of New York, in which court Fiske sued Smythe, collector, in December, 1868, to recover money alleged to have been illegally exacted by the said defendant, as collector, for duties upon imports.

The things in respect to which the duties were exacted were silk neckties imported in October, 1868.

The collector had exacted a duty of 60 percent upon them, against the payment of which the defendant protested, because, as he alleged, silk neckties were liable to a duty of but 35 percent.

It was shown in evidence that the neckties in question were made of silk, folded and ironed, turned over and pressed by hand, the ends being afterwards stitched; that chanroblesvirtualawlibrary

Page 90 U. S. 375

they were known in trade and commerce as "silk ties," and never as "scarfs" or as articles of ready-made clothing.

The true decision of the question depended upon the right interpretation of certain acts of Congress, referred to and relied on by the two parties respectively. The enactments referred to are as follows:

The twentieth section of an Act of August 30th, 1842, [Footnote 1] after laying duties on a large number of enumerated articles, thus enacted:

"There shall be paid on every nonenumerated article which bears a similitude, either in material, quality, texture, or the use to which it may be applied to any enumerated article chargeable with duty the same rate of duty which is charged on the article which it most resembles in the particulars mentioned. If any nonenumerated article resembles equally two or more enumerated articles on which different rates of duty are chargeable, there shall be paid on such article the rate of duty chargeable on the article it resembles paying the highest duty, and on all articles manufactured from two or more materials, the duty shall be assessed at the highest rate at which any of its component parts may be chargeable."

An act of July 30, 1846, [Footnote 2] imposed a duty of 30 percent ad valorem upon the articles of merchandise specified in a schedule annexed to it, and embracing among other things,

"Articles worn by men, women, or children, of whatever materials composed, made up or made wholly or in part by hand, not otherwise provided for."

An act of May 2, 1861, [Footnote 3] imposed a duty of 30 percent upon the articles therein enumerated. Among them were "articles worn by men," &c., as specified in the Act of 1846, and described in the same terms. Another section enacted that upon certain specified articles of silk (neckties not being among them), and upon

"All other manufactures of silk or of which silk shall be the component material of chief value, a duty of 30 percent ad valorem shall be paid. "

Page 90 U. S. 376

By an Act of July 14, 1862, [Footnote 4] an additional duty of 5 percent was imposed upon "articles worn by men," &c., repeating the language of the Act of 1846 in describing them.

Up to this date it seemed to be admitted that silk neckties would pay but 30 or 35 percent at most. However, on the 30th July, 1864, Congress passed another act, an act entitled "An act to increase duties on imports, and for other purposes."

This act, though not in substitution of all prior acts laying duties on imports, was nevertheless an act which went over a great field of duties on imports and laid a vast number of duties in lieu of former ones. It covered sixteen pages of the statute book, and had in it twenty-nine sections.

Teas, sugar, confectionery, molasses, brandy, spirits, cordials, liquors, bay rum, wines, ale, porter, beer, cigars, snuff, tobacco, iron, tin, steel, copper, lead, and zinc of many different sorts and differently fabricated; diamonds, wool, and manufactures of wool, sheepskin, carpets and carpeting, women's dress goods, shirts, drawers, hosiery, manufactures of worsted and cotton, cotton velvet, linens, and manufactures of flax, spun silk, earthenware, stoneware, and china, slates, clay, glass, a large variety of drugs, bristles, lemons, pepper, salt, books, gunpowder, mineral water, marble, soap, and several other articles were all affected by its provisions.

This Act of July 30, 1864, by its eighth section thus enacted:

"SECTION 8. In lieu of the duties heretofore imposed by law, on the articles hereinafter mentioned, there shall be levied, collected, and paid on the goods, wares, and merchandise enumerated and provided for in this section, imported from foreign countries, the following duties and the rates of duty, that is to say:"

"On spun silk for filling in skeins or cops, 25 percentum ad valorem. On silk in the gum, not more advanced than singles, tram, and thrown on organzine, 35 percentum ad valorem. On floss silks, 35 percentum ad valorem. On sewing silk in the gum or purified, 40 percentum ad valorem. On all dress and

Page 90 U. S. 377

piece silks, ribbons, and silk velvets, or velvets of which silk is the component material of chief value, 60 percentum ad valorem."

"On silk vestings, pongees, shawls, scarfs, mantillas, pelerines, handkerchiefs, veils, laces, shirts, drawers, bonnets, hats, caps, turbans, chemisettes, hose, mitts, aprons, stockings, gloves, suspenders, watch chains, webbing, braids, fringes, galloons, tassels, cords, and trimmings, 60 percentum ad valorem."

"On all manufactures of silk or which silk is the component material of chief value, NOT OTHERWISE PROVIDED FOR, 50 percentum ad valorem."

In addition to this act of 1864, an act of 1865 [Footnote 5] laid a duty of 60 percent "on ready-made clothing of silk, or of which silk should be a component part."

The view of the importer, the plaintiff in the case, was that "silk ties" were plainly within the terms "articles worn by men, women, and children," and, therefore plainly and specifically provided for by the acts of 1861 and 1862, imposing the first, 30 percent, and the second, a 5 percent additional.

The collector apparently considered the Act of July 30th, 1864, as a new tariff system so far as rates of duties were concerned, and finding "silk scarfs" enumerated and taxed at 65 percent, while "silk ties" were not enumerated, and assuming that "silk ties" bore a closer similitude to silk scarfs than to anything else, went back and availed himself of the twentieth section of the Act of August, 1842, which fixed on every nonenumerated article which bears a similitude in material, quality, or texture, or to the use to which it may be applied, to any enum