Opinion of the Court.

pose for pianos and organs, as musical instruments, and no other purpose, the jury might return a verdict for the plaintiff. To this instruction the defendant excepted.

We think there was error in the charge of the court. The substance of the charge was that, if the articles were made on purpose to be used in pianos and organs, and were used exclusively in pianos and organs, they were dutiable as musical instruments, and not as manufactures of ivory. That the articles were in themselves musical instruments, cannot be gravely contended. They were ivory pieces for the keys of pianos or organs. As imported, they were simply pieces of ivory, which had undergone a process of manufacture; were of a shape and size to be used for certain octaves of pianos and organs; and were sold to piano makers and key-board makers. Those persons scraped the lower surface of the ivory, to make it adhere to a piece of wood to which it was afterwards glued. In the shape in which the articles were imported, they were clearly manufactures of ivory.

Neither of the statutes in question imposes on parts of musical instruments the same rate of duty which it imposes on musical instruments.

By Schedule E of section 11 of the act of July 30, 1846, 9 Stat. 47, a duty of 20 per cent ad valorem was imposed on "musical instruments of all kinds, and strings for musical instruments of whip-gut or catgut, and all other strings of the same material;" and, by the same act (p. 45) a duty of 30 per cent ad valorem was imposed on "manufactures of bone, shell, horn, pearl, ivory, or vegetable ivory."

By section 20 of the act of March 2, 1861, 12 Stat. 190, a duty of 20 per cent ad valorem was imposed on "Musical instruments of all kinds, and strings for musical instruments of whip-gut, or catgut, and all other strings of the same material;" and by section 22 of the same act (p. 192) a duty of 30 per cent ad valorem was imposed on "Manufactures of bone, shell, horn, ivory, or vegetable ivory."

By section 6 of the act of July 14, 1862, 12 Stat. 550, a duty of 10 per cent ad valorem, in addition to then existing duties, was imposed on "Musical instruments of all kinds, and

Opinion of the Court.

strings for musical instruments of whip-gut or catgut, and all other strings of the same material;" and by section 13 of the same act (p. 557) a duty of 5 per cent ad valorem, in addition to then existing duties, was imposed on "Manufactures of bone, shell, horn, ivory or vegetable ivory.”

By Schedule M of section 2504 of the Revised Statutes of 1874, 2d ed. p. 481, a duty of 30 per cent ad valorem was imposed on "Strings: all strings of whip-gut or catgut, other than strings for musical instruments;" and by section 2505 of said Revised Statutes, 2d ed. p. 484, "Catgut strings, or gutcord, for musical instruments" were made free of duty.

By section 2502 of the Revised Statutes, as enacted by the act of March 3, 1883, 22 Stat. 514, a duty of 25 per cent ad valorem was imposed on "Strings: all strings of catgut, or any other like material, other than strings for musical instruments;" and, by section 2503 of the same enactment, 22 Stat. 518, "Catgut strings, or gut-cord, for musical instruments," were made free of duty.

It is thus seen that, by the act of 1846, by the act of 1861 and by the act of 1862, provision was made for imposing a duty on parts of stringed musical instruments, by laying a duty on "strings for musical instruments of whip-gut or catgut," leaving other parts of musical instruments, imported in parts, to be dutiable under other provisions of law. So, in the Revised Statutes of 1874, and as enacted in 1883, while there is no specific duty on parts of musical instruments, as such parts, "catgut strings or gut-cord, for musical instruments," are made free of duty, leaving other parts of musical instruments to be dutiable under other provisions than that applicable to "musical instruments of all kinds."

This view of the legislation of Congress is fortified by the fact that in the Revised Statutes of 1874, and in the same as enacted in 1883, a duty is imposed on carriages and parts of carriages; on chronometers and parts of chronometers; on clocks and parts of clocks; and on watches and parts of watches. If Congress had intended, in either enactment of the Revised Statutes, to impose the same duty on parts of musical instruments which it imposed on musical instruments, it

Opinion of the Court.

would have been easy to impose that duty on "musical instruments of all kinds, and parts of the same."

It is very clear to us that the fact that the articles in question were to be used exclusively for a musical instrument, and were made on purpose for such an instrument, does not make them dutiable as musical instruments.

The contention of the plaintiff is thought to be supported by the fact that, in the case of Foote v. Arthur, tried in the Circuit Court for the Southern District of New York early in the year 1880, and unreported, it was held that a completed violinbow was a musical instrument, and subject to duty as such under the statute, and by the fact that the Treasury Department acquiesced in that decision, under the advice of the Attorney General of the United States. It is sufficient to say that the pieces of ivory in question were not violin-bows; and that, whatever the true view may be as to violin-bows the same considerations applicable to them do not apply to the articles in question here.

Attention is called by the plaintiff to the fact that the provision in the Revised Statutes, as enacted in 1883, in regard to manufactures of ivory, imposes the duty of 30 per cent ad valorem on all manufactures of ivory "not specially enumerated or provided for in this act." But those words have no bearing on the present case, because the pieces of ivory in question are not specially enumerated or provided for in the act of 1883.

The judgment is reversed, and the case remanded to the Circuit Court with a direction to grant a new trial.

Statement of the Case.

ROBERTSON v. ROSENTHAL.

ERROR TO THE CIRCUIT COURT OF THE UNITED STATES FOR THE SOUTHERN DISTRICT OF NEW YORK.

No. 57. Argued November 4, 1889.- Decided December 16, 1889.

Ordinary headless hair-pins, made of steel wire and iron wire, when imported into the United States, are subject to a duty of 45 per cent as manufactures, articles or wares, not specially enumerated or provided for," composed wholly or in part of iron, steel, copper," etc., and not as pins, solid-head, or other."

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THE case as stated by the court in the opinion was as follows:

This was an action brought to recover duty alleged to have been illegally exacted by the defendant, as collector of the port of New York, upon certain merchandise imported by the plaintiffs. It was stipulated on the trial that if the plaintiffs should be entitled to recover on the main question raised by their protest, a verdict should be entered generally in plaintiffs' favor, subject to adjustment as to formal requisites and to amount, at the custom-house, under the direction of the court.

Evidence was given tending to show that on or about July 5th and 7th, 1884, the plaintiffs imported certain iron wire and steel wire hair-pins, upon which the collector assessed a duty of 45 per cent ad valorem, under that part of Schedule C, section 2502 of the Revised Statutes, as enacted by the act of March 3, 1883, 22 Stat. 488, 501, c. 121, which reads:

Manufactures, articles or wares, not specially enumerated or provided for in this act, composed wholly or in part of iron, steel, copper, and whether partly or wholly manu

factured, forty-five per centum ad valorem.”

The plaintiffs paid the amount of duty assessed, and protested as follows:

"We protest against your decision as to the rate and amount of duties to be paid on the hair-pins entered by us for consump tion July 5, 1884, per Donau 86,888, from Bremen, because

Statement of the Case.

they are dutiable at 30 per cent ad valorem under tariff Schedule C, pins, solid-head, or other.

"If not so dutiable they are dutiable under said schedule at the rates per pound prescribed for the iron or steel wire of which they are. made.

"We pay the excess exacted under compulsion solely to get the goods."

To sustain the issues upon their part, the plaintiffs introduced Leopold Kramer, who testified that he was an importer of fancy goods in the house of plaintiffs, and that their business was the general importation of notions, etc., and who identified the invoices and entries involved in this action, and also showed that the rate of duty upon said hair-pins, if classified as "Pins, solid-head or other," would not be less than the rate of duty chargeable upon the iron or steel wire from which they were made.

Witness testified further as follows: "These samples are samples of the articles imported, and are known ordinarily as hairpins. There are also samples of various other kinds of pins: one is a crimping pin, one a solid-head pin, one a pin with a black head called a bonnet pin, used to fasten shawls; also diaper pins. They are made of iron wire and steel wire, and have no heads at all. Diaper pins and crimping pins have not solid heads. They have no heads."

And on cross-examination: "Some pins have heads, but are not solid-headed pins. Bonnet pins and shawl pins are pins with heads, but are not solid-headed pins. Those pins [referring to card] are pins with heads, but are not solid-headed pins." "Q. Are solid-headed pins the ordinary pins that everybody has? Ans. Yes; not everybody. I am familiar with dress-pins. I don't know anything about clothes-pins, except that there are such things. I know there are linch-pins and king-pins, for locomotives, but they are not used for the same purpose as the articles in suit."

Plaintiffs having rested, defendant's counsel moved the court to direct a verdict for the defendant upon the following grounds, to wit.

"1st. That in prior laws pins, solid-head or other, and hair