Opinion of the Court.

compel the city to produce in court certain testimony alleged to have been taken by respondent, "or, if that may not be consistently and legally done, that reasonable opportunity be given complainant to further justify her case herein by allowing complainant reasonable opportunity to establish the said testimony so taken for use in complainant's behalf in this cause.' ." The cause was not tried at that term, nor did it appear that any action was taken on the motion or that the attention of the court was called to it. The case was submitted to the chancellor, October 15, 1890, at the October term, and on October 16, when the argument had been nearly completed, an application was made that the submission be set aside in order that the motion made at the last term of the court might be considered. It was stated by the chancellor that at a former time counsel had asked the court to instruct the commissioner to return a deposition he had taken, to him, and the commission to the court as having been improperly issued, and that the chancellor instructed the commissioner to take whatever action as to the deposition he might choose, but in no event to permit either party to the suit to examine it. The chancellor held that the deposition was taken improperly, and that it was the right of complainant's counsel to ask the court that it should not be subjected to the scrutiny of defendant's counsel; but that if it were then before the court it could not be used for any purpose unless in the meantime the deposition of the witness had been subsequently taken, and the former deposition should be offered to contradict any of the statements made in the latter. The chancellor added: "It cannot be disputed that if any one desired to take action in the matter to get the deposition of either of these witnesses there has been ample time to have done so. The submission in this cause was made without any application for a continuance in order to get the deposition of these witnesses, one of whom is the complainant. The complainant has never taken any steps during the time this case has been continued from year to year to get her own or her mother's deposition in the case. Under these circumstances the motion to set aside the submission on that ground is denied.”

Statement of the Case.

As to this matter, the Supreme Court held that there was nothing which the court could review; that no ruling was shown to have been had or asked on the motion in April, 1890, although the cause was continued; and that the application made October 16, 1890, was addressed to the court's discretion, and could not be revised.

This decision upon a matter of practice under the State procedure did not draw in question any right complainant had under the Constitution or laws of the United States. It affords no basis for the contention that her right to be heard in her own behalf was denied, and we are of opinion that not only was no Federal question brought to the attention of the State courts, but that none such necessarily arose or was decided. Writ of error dismissed.

ARNOLD v. UNITED STATES.

APPEAL FROM THE CIRCUIT COURT OF THE UNITED STATES FOR THE SOUTHERN DISTRICT OF NEW YORK.

No. 825. Argued January 13, 16, 1893. - Decided February 6, 1893.

Knit woollen undershirts, drawers and hosiery are subject to duty as "wool wearing apparel," under paragraph 396 of section 1 of the act of October 1, 1890, 26 Stat. 567, 597, c. 1244, and not as "knit fabrics made on frames," under paragraph 392 of the same act.

THE appellants imported into the port of New York, by the steamship Alaska, several cases containing knit woollen undershirts, drawers and hosiery. The collector assessed duty on them, under paragraph 396 of § 1 of the tariff act of October 1, 1890, 26 Stat. 567, 597, c. 1244, as "wool wearing apparel." The appellants protested, claiming that the articles were dutiable only under paragraph 392 of the same act, as "knit fabrics made on frames." On this protest, the board of general appraisers, reversing the decision of the collector, held that the merchandise should have been classified as contended by the importers, under paragraph 392, and not under paragraph 396. Thereupon the collector made application to the United States Circuit Court for the Southern District of New York,

Counsel for pellees.

for a review of the matter. Additional testimony was taken as authorized by the statute, and, on hearing, that court reversed the decision of the board of general appraisers and sustained the ruling of the collector. 46 Fed. Rep. 510. From this decision appellants appealed to this court. Paragraphs 396 and 392 are as follows:

"396. On clothing, ready made, and articles of wearing apparel of every description, made up or manufactured wholly or in part not specially provided for in this act, felts not woven, and not specially provided for in this act, and plushes and other pile fabrics, all the foregoing, composed wholly or in part of wool, worsted, the hair of the camel, goat, alpaca or other animals the duty per pound shall be four and one-half times the duty imposed by this act on a pound of unwashed wool of the first-class, and in addition thereto sixty per centum ad valorem."

"392. On woollen or worsted cloths, shawls, knit fabrics and all fabrics made on knitting machines or frames, and all manufactures of every description made wholly or in part of wool, worsted, the hair of the camel, goat, alpaca or other animals, not specially provided for in this act, valued at not more than thirty cents per pound, the duty per pound shall be three times the duty imposed by this act on a pound of unwashed wool of the first-class, and in addition thereto forty per centum ad valorem; valued at more than thirty, and not more than forty cents per pound, the duty per pound shall be three and one-half times the duty imposed by this act on a pound of unwashed wool of the first-class, and in addition thereto forty per centum ad valorem; valued at above forty cents per pound, the duty per pound shall be four times the duty imposed by this act on a pound of unwashed wool of the first-class, and in addition thereto fifty per centum ad valorem."

Mr. Stephen G. Clarke and Mr. William B. Coughtry for appellants.

Mr. Assistant Attorney General Maury for appellees.

Opinion of the Court.

MR. JUSTICE BREWER, after stating the case, delivered the opinion of the court.

The question in this case is whether knit woollen shirts, drawers and hosiery come within the enumeration of "clothing, ready made, and articles of wearing apparel of every description, made up or manufactured wholly or in part

of wool," as provided in paragraph 396; or of "knit fabrics, and all fabrics made on knitting machines or frames, and all manufactures of every description made wholly or in part of wool," as found in paragraph 392. In the original brief filed by counsel for appellants, it is conceded that either enumeration, in the absence of the other, might cover these goods; though, in the reply-brief, it is contended that in no proper sense of the term are the appellants' importations wearing apparel; and in support thereof definitions are quoted from several dictionaries, in which the word "apparel" is defined as "external clothing," "external habiliments or array," and "a person's outer clothing." As against this, counsel for the government also refers us to dictionaries, in which the term "wearing apparel" is defined as "garments worn, or made for wearing; dress in general;" and the noun "wearing," as "that which one wears; clothes; garments." But it is unnecessary to search or compare the dictionaries. The term "wearing apparel" is not an uncommon one in statutes, and is used in an inclusive sense as embracing all articles which are ordinarily worn-dress in general. Indeed, in this very statute, paragraph 752, in respect to articles exempt from duty, names "wearing apparel and other personal effects (not merchandise) of persons arriving in the United States." Obviously, the term is here used as covering all articles of dress; while "personal effects" refer to other matters of personal baggage not used as clothing. And it cannot be believed that a person coming into the United States is permitted to bring in his outer clothing free from duty, while his underclothing is subject to duty and seizure for the non-payment thereof. So in exemption statutes is frequently found the term "wearing apparel." Thus, for

And.

the

instance,

Opinion of the Court.

38, sec, 4, is this description of exempt property: "First, the

in the General Statutes of Kansas, page 474, c.

Wearing

act

apparel of the debtor." And in the late bankruptcy the wearing apparel of the bankrupt" is excepted from operation of the assignment. Rev. Stat. sec. 5045. No one would suppose that under such statutes a man's pantaloons and shoes were exempt, while his drawers and socks were not. Not only is that the general sense in which the term is used in statutes, but also the very form of the language here used indicates an intent to compass within the enumeration every article which is ordinarily worn or recognized as an article of dress. The language is, "clothing, ready made, and articles of wearing apparel of every description." The words "clothing, ready made," would include coats, pants, vests and overcoats, at least; and the sweeping term added thereafter, "articles of wearing apparel of every description," was obviously meant to reach out and include everything that one wears. We think that the concession made by appellants' counsel in their principal brief is beyond question.

Each paragraph, as will be noticed, contains the words "not specially provided for in this act;" and the contention of appellants is, that the enumeration in paragraph 392 is more specific, and that therefore it should control, referring, in this connection, to Solomon v. Arthur, 102 U. S. 208, 212, and Hartranft v. Meyer, 135 U. S. 237. But we think that the reverse is true, and that the description in 396 is more of a special enumeration than that in 392. Clothing and articles of wearing apparel are more specific than cloths and knit. fabrics. Out of cloths and knit fabrics clothing and wearing apparel are made. The latter are included within the former, while the former are not included within the latter. So, if the decisive matter was the more special enumeration, we think

would be preferred. And in this connection may be iced the relative rate of duty, which is higher for the noicles in 396 than for those in 392. The idea which runs through this statute is well known to be that of protection

arte

to

our manufactures. As the duty prescribed by 396 exceeds that prescribed by 392, it suggests that the articles named in

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