44 U.S.

106
3 How. 106
11 L.Ed. 516

EDWARD CURTIS, PLAINTIFF IN ERROR,

v.
WILLIAM MARTIN AND CHARLES A. COE,
DEFENDANTS.
January Term, 1845

THIS case was brought up by writ of error from the Circuit Court of the
United States for the southern district of New York.
It was an action brought in the court below by Martin and Coe against
Curtis, the collector, for return of duties upon certain importations of
gunny cloth, from Dundee, in Scotland, from April to September, 1841.
The facts in the case are clearly stated in the following brief of Mr.
Nelson, attorney-general, who argued the case on behalf of Curtis, the
plaintiff in error:
This was an action brought by the defendants in error against Curtis, as
collector of the port of New York, to recover back the sum of $4,543.17 of
duties, levied by him on a certain article as cotton bagging, which, they
contended, was gunny bagging, a non-enumerated article in the tariff of
1832, and therefore duty free; and the question in the cause was, whether
this kind of bagging was cotton bagging within the meaning of the
revenue laws? The duties were paid under written protest annexed to each
entry.
By the tariff of 1832 it is enacted, that 'on cotton bagging three and a half
cents a square yard, without regard to the weight or width of the article,' of
duty shall be collected. This duty, modified by the Compromise Act, was
chargeable when the goods were imported.
The imported article, used as bagging for the packing of cotton, is
principally manufactured in the town of Dundee, in Scotland, and, like the
bagging of Kentucky, was made of hemp, until the material of which the
gunny cloth of India is manufactured began to be used. Bagging for cotton

has also been made of cotton.

Gunny (Bengalee G uni) is a coarse, strong sackcloth, manufactured in
Bengal, for making into bags, sacks, and packing generally, the material
being the fibre of two plants, natives of India, as hemp originally was.
(See article 'Gunny,' in McCulloch's Dictionary of Commerce, American
edition, vol. 1, p. 722.)
Gunny bagging is now manufactured in Scotland, as well as in India; and
it was admitted, on the part of the defendants in error, that the
importations in question came from Dundee, and were made into New
York between the months of April and September, 1841.
It was established, by the testimony on both sides, that gunny cloth was
imported largely into this country, solely for bagging for the packing of
cotton, since 1835. In commercial language it has since been known as
cotton bagging; but in 1832, at the time of the passing of the tariff of that
year, it was not so known. The counsel for the collector contended, at the
trial in the court below, that if the article was, in commercial
understanding, known as cotton bagging at the time of its importation, it
was subject to the duty, and that the term cotton bagging signified any
fabric, without regard to the materials of which it is composed, that was
used to bale or cover cotton, and prayed the court so to charge the jury,
which his honor refused; but, on the contrary, charged that the point upon
which the case turned was, whether the article in question was known as
cotton bagging in the year 1832, when the tariff act was passed. He
further charged that it was a settled rule of construction of revenue laws,
imposing duties on articles of a specified denomination, to construe the
article according to the designation of such articles as understood and
known in commerce, and not with reference to the material of which they
may be made, or the use to which they might be applied; nor ought such
laws to be construed as embracing all articles which might be applied to
the same use and purpose as the specific article. If it had been the
intention of Congress to impose the duty upon all articles used for cotton
bagging, the language of the act would have been different, and in terms
prospective, adapted to such purpose; that it had been argued on the part
of the United States that the duty was intended to be laid on all articles
used for cotton bagging, because the duty is laid on cotton bagging
'without regard to weight or measure;' but that the terms 'weight and
measure' were intended to apply to different materials then in use for
bagging cotton, such as hemp, flax, and sometimes cotton cloth, &c., and
not to any new articles that might thereafter be applied to that use; so that
the whole question was, whether gunny cloth was, in commercial

understanding, known as cotton bagging when the law was passed laying
the duty, in 1832? If it was not, they would find for the plaintiffs; if it
was, they would find for the defendant. To which charge, in every respect,
the defendant's counsel excepted.
The jury found for the plaintiffs, now defendants in error.
The cause now comes up on a writ of error to this court, and for error it is
assigned
That the judge ought to have charged the jury that the act of 1832 was
prospective; and that the legislature, in using the term 'cotton bagging,'
without distinguishing the material of which it was made, meant that all
articles which thereafter should be imported for that purpose should be
subject to duty; and that gunny bagging, being known among merchants
as cotton bagging at the time of the importation of the bagging in
question, was subject to duty.
Lord, for defendants in error, said that the points in the case were the
following:
1. That if gunny cloth was at the time of the passage of the act of July
14th, 1832, in commercial understanding, known as cotton bagging, it was
liable to the duty demanded under the 14th clause of the 2d section of the
act.
2. But if not so known at the time of the passage of such law, then it was
not liable to the duty on cotton bagging.
Whereupon he contended for the two following propositions, viz.:
1st. Under laws imposing duties, articles are to be charged solely
according to their commercial designation at the time of the passage of the
law, and that whether the designation be of a class or of individual
articles. For this he cited 1 Story's R., 341, Bacon v. Bancroft; Id. 642, Lee
v. Lincoln; 9 Wheat., 434, 438, United States v. 200 chests tea; 8 Pet.,
272, United States v. _____ sugar; 1 Sumn., 159, United States v. Breed;
10 Pet., 272, Elliott v. Swartwout.
2d. The construction claimed here by the importers is fully admitted by
the government in the act of August 30th, 1842, whereby cotton bagging
and gunny cloth are subjected, as distinct articles, to different rates of
duty. Acts of 27th Congress, 2d session, p. 180, section 3, clause 3.

Mr. Chief Justice TANEY delivered the opinion of the court.

This case comes before the court upon a writ of error directed to the Circuit
Court for the southern district of New York. The action was brought by the
defendants in error against the plaintiff, who was the collector of the port of
New York, to recover back $4,500, which had been paid, under protest, as
duties upon certain goods imported into the port of New York, in April, 1841.
The goods in question were gunny cloths, and were charged by the collector as
cotton bagging.

The defendants in error offered evidence to show that, in 1832, when the law
passed imposing the duty on cotton bagging, the article in question was not
used or known as cotton bagging: that it was then only seen in the form of bags
for India goods; that the first importation of gunny cloth, to be used as cotton
bagging, was in 1834. It is made from the yute grass.

The plaintiff in error proved that these goods, at the time of the importation,
were known in commerce as cotton bagging; that they were made of the proper
width for that purpose, and for several years before this importation, gunny
cloths had been imported and used for cotton bagging; and that the goods in
question were imported from Dundee, in Scotland.

Upon this evidence, the counsel for the defendant contended that if the jury
found that the article gunny cloth was, in commercial understanding, known as
cotton bagging at the time of its importation, it was subject to a duty; and that
the term cotton bagging, according to the commercial understanding of the
phrase, signified any fabric, without regard to the material of which it was
made, that was used to bale or cover cotton, and prayed the court so to charge
the jury.

His honor the judge refused so to charge the jury; but, on the contrary thereof,
charged 'that the point upon which this case turns is for the decision of the jury,
viz.: whether the article in question in this case was known as cotton bagging in
the year 1832, when the tariff act was passed.3 It has long been a settled rule of
construction of revenue laws, imposing duties on articles of a specified
denomination, to construe the article according to the designation of such
article, as understood and known in commerce, and not with reference to the
materials of which they may be made, or the use to which they might be
applied. Nor ought such laws to be construed as embracing all articles which
might subsequently be applied to the same use and purpose as the specific

article. If it had been the intention of Congress to impose the duty upon all
articles used for bagging cotton, the language of the act would have been
different, and in terms prospective, adapted to such purpose. It has been argued,
on the part of the United States, that the duty was intended to be laid on all
articles used for bagging cotton, because the duty is laid on cotton bagging
'without regard to weight or measure.' These terms, 'weight or measure,' were
intended to apply to different materials then in use for bagging cotton, such as
hemp, flax, and sometimes cotton cloth, &c., and not to any new articles that
might thereafter be applied to that use. So that the whole question of fact for the
jury is whether gunny cloth was, in commercial understanding, known as
cotton bagging when the law was passed laying the duty, in 1832? If it was not,
they will find for the plaintiffs; if it was, they will find for the defendant.'
6

To this charge, in every respect, the defendant's counsel excepted.

The jury found a verdict for the plaintiffs for $4,543.17, and six cents costs.

The question brought up by this exception cannot now be considered as an open

one. In the case of the United States v. 200 chests of tea, 9 Wheat., 438, the
court decided that in imposing duties Congress must be understood as
describing the article upon which the duty is imposed according to the
commercial understanding of the terms used in the law, in our own markets.
This doctrine was re-affirmed in the case of the United States v. 112 casks of
sugar, 8 Pet., 277, and again in 10 Id., 151, in the case of Elliott v. Swartwout.
It follows that the duty upon cotton bagging must be considered as imposed
upon those articles only which were known and understood as such in
commerce in the year 1832, when the law was passed imposing the duty.

In the case before us, the Circuit Court followed the rule of construction above
stated, and it has been followed also in every circuit where the question has
arisen. The judgment is therefore affirmed.

FOLLOWED. Lawrence v. Allen, 7 How., 797.