#### 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.”

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 generallyin 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 'Tth,-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 <?r in part of iron, steel, copper, . . . . and whether partly *or wholly*manufactured, 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 consumption July 5, 1884, per Donau 86,888, from Bremen, because *461they 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 ai . 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 othei’,” 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 pinor laws pins, solid-head or other, and hair*462pins were- both provided for, which shows that, as Congress uses the phrase pins, solid-head,-o.r other, it does not-include hair-pins.

“ 2d. That the phrase pins, solid-head, or other, applies only to pins with heads of some kind.

“3d. .Generally; that the evidence does not make out a case for recovery by the plaintiffs.”

Which motion the court denied; to which ruling defendant’s counsel then and there excepted.

The court thereupon charged the jury as follows :

“ Gentlemen, if -you think these articles are pins, according to the common understanding of the class of pins that are known as solid-head pins, or other pins, return a verdict for the plaintiffs; if not, return a verdict' for the defendant. You may take the case.”

The jury having returned a verdict for the plaintiffs, and the amount having been subsequently ascertained as agreed, judgment was entered against the collector accordingly, and the cause brought here on writ of error.

*Mr. Solicitor Genéral'íov*plaintiff in error.

*Mr. Hdvjard Hartley*(with whom was *Mr. Walter H. Cole-mam,*on the brief) for defendants in error.

Mr. Chief Justice Fuller

delivered the opinion of the court.

The articles in question were -ordinary headless -hair-pins, made of steel wire and iron wire, and the question is whether they were dutiable as “ pins, solid-head or other.”

By section 13 of the act of July 14, 1862, 12 Stát. 555, 557, c. 163, a duty of five per centum ad valorem, in addition to then existing duties, was levied on many articles, including “ pins, solid-head or other,” and “ manufactures, articles, vessels and wares, not otherwise provided for, of gold, silver, copper, brass, iron, steel, lead, pewter, tin, or other metal, or of which either of these metals or any other metal shall be the component material of . chief value.”

*463By section. 21 of the act of July 14, 1870, 16 Stat. 264, c. 255, a duty of fifty per centum ad valorem was levied “ on hair-pins made of iron wire.”

Under section 2504, Title XXXIII of the Revised Statutes, “Schedule M, — Sundries,” we find, “Hair-pins, made of-.iron wire: fifty per centum ad valorem.” “ Pins, solid-héad or other: thirty-five per centum ad valorem.” 2d ed., pp. 476, 480. And in “ Schedule E, — : Metals,” (p. 465): “All manufactures of steel, or of which steel shall be a component part, not otherwise provided for; forty-five per centum ad valorem. But all articles of steel partially manufactured, or of which steel shall be a component part, not otherwise provided for: shall pay the same rate of duty as if wholly manufactured.” And also (p. 467): “ Manufactures, articles, vessels, and wares not otherwise provided for, of . . . iron, '. . . or other metal, (except . . . steel,) or of which either of these metals shall be the component material of chief value: thirty-five per centum ad valorem.”

In March, 1875, certain imported steel hair-pins having been held at the port of New York dutiable-at fifty per cent ad valorem, because of their similarity to iron wire hair-pins, the' Treasury Department decided that this was erroneous, and that they were properly chargeable with the rate of duty applicable to manufactures of steel not otherwise provided for. Synopsis T. Dec. 1875, p. 56, No. 2140.

By section 2502 of Title XXXIII. of the Revised Statutes as enacted by the act of March 3, 1883, 22 Stat. 501, c. 121, “ Schedule C, — Metals,” a duty of thirty per centum ad valorem was levied on “ Pins, solid-head or other; ” and by the last paragraph in the same schedule, on “Manufactures, articles, or wares,.not specially enumerated or provided for in this act, composed wholly or in. part of iron, steel, . ■ . . or any other metal, and whether partly or wholly manufactured: forty-five per centum ad valorem.”

It will be perceived that although hair-pins are not mentioned *eo nomine,*this last paragraph covers iron and steel hair-pins, as was ruled as to the latter by the department in 1875, in the construction and application of similar language.

*464Inasmuch as Congress, for the thirteen years prior to 1883, treated hair-pins for revenue purposes as a distinct article from “pins, solid-head or other,” we consider it unreasonable to conclude that the legislation of 1883 was intended to do away with a distinction manifestly regarded as inherent in the thing itself.

In' short, it is doubtful if it could ever have been properly held that hair-pins were *ejusdem generis*with the pins referred to in the tariff acts, but if this could have been so prior to 1870, we are of opinion that at that time Congress assigned them to a class by themselves, because essentially *sui*generis, and, therefore, that their not being specifically enumerated in 1883 did not relegate them to the category of “ pins, solid-head or other,” as ingeniously argued by counsel.

From these views the conclusion follows that the court below should have instructed the jury to find for the defendant.

*The judgment is*reversed, *wnd the cause remanded with a direction to awa/rd a new trial.*