ERROR TO THE CIRCUIT COURT OF THE UNITED STATES FOR THE EASTERN DISTRICT OF PENNSYLVANIA.
MR. JUSTICE BROWN, after stating the case, delivered the opinion of the court.
1. The first assignment of error is that which is taken to the instruction to the jury that the importation in question, though called wool wastes, seems to be so called only because of its resemblance to what was formerly known by this designation; that it does not consist of refuse or broken particles thrown off in the process of manufacture, but is made intentionally, by tearing up what are called "wool tops," which consist of wool which has been put through several processes and prepared for spinning, and that the term "waste" did not embrace this commodity.
The correctness of this instruction turns upon the meaning
of the words "woolen waste," as used in the act of 1883. As bearing upon this, we are at liberty to consider its ordinary definition, which will be controlling, except so far as it may be varied by a commercial designation obtaining at that time. Saltonstall v. Wiebusch, 156 U.S. 601. Waste is defined by Webster as "that which is of no value; worthless remnants; refuse. Specifically: remnants of cops, or other refuse resulting from the working of cotton, wool, hemp, and the like, used for wiping machinery; absorbing oil in the axle boxes of railroad cars, etc." In this connection, and in the same clause of the statute, other words are included, undoubtedly referring to articles of the same or of a similar nature. These are "rags; shoddy, defined as "a fibrous material, obtained by 'devilling' or tearing into fibres, refuse woolen goods, old stockings, rags, druggets, etc.;" "mungo," which properly signifies the disintegrated rags of woolen cloth, as distinguished from those of worsted, which form shoddy; and flocks," defined as "woolen or cotton refuse, old rags, etc., reduced to a degree of fineness by machinery, and used for stuffing upholstered furniture;" and also as "very fine sifted woolen refuse, especially that from shearing the nap of cloths, used as a coating for wall paper to give it a relvety or cloth-like appearance." The prominent characteristic running through all these definitions is that of refuse, or material that is not susceptible of being used for the ordinary purposes of manufacture. It does not presuppose that the article is absolutely worthless, but that it is unmerchantable and used for purposes for which merchantable material of the same class is unsuitable.
The importation in question consisted of wool which had been scoured, then carded and prepared; then put upon a comb, from which it comes in long lengths, known as slivers or slubbing. It is then put through a process called gilling, which forms the slivers into a less number of slivers of greater thickness. These slivers are then taken into the drawing room and finished, from whence they come out in the form of round balls, called "tops." These tops become new articles of merchandise, which are sold to the spinners, who spin them into worsted yarn.
In the process of making the tops, short ends of wool are produced, which are called, and sold in the trade as "Botany laps" or "Botany waste," the two terms being synonymous in the English market. After the top is produced, it sometimes happens that it is shorter in staple than was anticipated, or not of the proper color, or that it has to be recarded to get out the burrs, or for some other reason it becomes unmerchantable. In such cases, it has always been the practice in England to break up the tops as unfit for ordinary use, and in that condition they are sold for the same purpose as wool waste, and are known and sold commercially as Botany laps or Botany waste. It was not claimed, however, that they formed a recognized article of commerce in this country, or to any great extent in England. At and prior to 1883, there was no quotable market price for waste, for the reason that the manufacture was not large, though it was bought and sold to a certain extent on its merits upon the market.
In 1887 or 1888, owing to the depression of the wool trade in England, and the demand for waste in this country, the price of tops became so low and the price of waste so high, that the deliberate breaking up of tops began for the purpose of exporting them to America as waste, though there is no evidence of any importation of this character prior to 1887. The discovery that the tops thus broken up might be entered at the American custom-houses as "waste" produced such a sudden demand for exportation that, while the amount declared at the American consulate at Bradford, the center of this trade, for the last two months of 1887, and the first two months of 1888, was only 190,088 pounds, for the corresponding months of 1888 and 1889 it rose to 1,803,558 pounds.
It appeared from the evidence that the waste, whether intentionally or unintentionally produced, was an article having different qualities from the merchantable wool, and was used as an adulterant. It is, however, used like other scoured wool, being mixed with it in the carding machine, and is worth only ten or fifteen cents less per pound than
scoured wool of the same character; and hence, in view of the difference in tariff rates, is an article of much more value than scoured wool for the purposes of importation. While these broken tops became a large import under the designation of waste, they never seem to have been prepared in this country for the purposes of sale, the tops being much more valuable in their unbroken condition; while in England, in 1888, the broken tops were more valuable than the unbroken ones. The testimony upon both sides indicates that this artificial kind of waste is, for obvious reasons, more uniform and clean, and, therefore, more valuable than genuine waste. It was not disputed that the importations in question consisted of tops ...