
    Arthur v. Stephani.
    1. Eor-tariff purposes. Congress has at all times, since the passage of the act of May 2,1792 (1 Stat. 259), intended to preserve’ the distinction between “chocolate” and “confectionery.”
    2. Chocolate, eo nomine, is, by the first section of the act of June 0,1872 (17 Stat. 231), dutiable at tlie rate of five cents per pound; and, although put up in a particular form and sold as “ confectionery,” is not subjected to the duty imposed on the latter article by the first section of the act' of June 30, 1864 (13 id. 202).
    Ebbob to the Circuit Court of the United States for the Southern District of New York.
    This was an actito by A. Stephani & Co., to^ recover an alleged excess of duty .paid upon certain chocolate imported by them from Liverpool/ in 1873, and upon which the collector of the port of New York, holding it to be “ confectionery,” exacted a duty of fifty cents per pound ad valorem, under the first section of .the act of June 30, 1864 (13 Stat. 202). The importers claimed it to be dutiable as “ chocolate,” under the first section of the act of June 6, 1872 (17 id.-231), which imposes a duty of five cents-per pound.
    The case was tried by the court below, without the intervention of a jury; and, by an agreed statement of facts, it was admitted that the chocolate was in boxes Containing thirty-six little bricks, done- up in separate papers, each box weighing about half ja popnd; and that the chocolate, being such as is ordinarily sold by confectioners as confectionery, and by the ■ box or package, was valued at over thirty cents per pound. It was also admitted that chocolate comes in othér forms.
    Judgment having been rendered in favor of the plaintiffs, the collector brought the case here.
    
      Mr. Assistant-Attorney- Gceneml Smith for the plaintiff, in-error.
    
      Mr. JUdward Hartley, contra.
    
   Me. Justice Hunt

delivered the opinion of the court.

.The first section of the act of June-30, 1864, imposes “opr - rdl confectionery not otherwise provided for, made wholly or in part-of 'sugar, valued at thirty cents per pound or less, a duty of .fifteen cents per pound; on all confectionery valued above thirty cents per pounds or when' sold by the box, package, or otherwise than, by the pound, fifty per cent ad valorem.” 13 Stat. 202.

The act of June ,6,T872, imposes’a duty of five cents per pound “ on chocolate.”' 17. id. 231.

The article in question,was chocolate simply, but presented - in a form in which it was ordinarily sold as confectionery. Was it dutiable as •' confectionery, or as chocolate ?

The case differs from those already decided, in this, that the last act expressing the legislative will is that which imposes the •lower rate of duty. It is-like the others, in this, that it presents the question whether the articles are dutiable, under general terms which may embrace them, or under that specificdangdage which can be applied to nothing else. That the .'latter is the rule by which the duty is fixed is too well settled to. require argument. . Reiche v. Smythe, 13 Wall. 162; Homer v. The Collector, 1 id. 486; Movius v. Arthur, 95 U. S. 144.

Should it be admitted; therefore, that chocolate is composed in part of .the same substances that enter into the éomposition of ordinary confectionery, it must, nevertheless, stand upon the customs list as the distinct article so often described in the acts of Congress by its specific name.

As early as 1792, chocolate, eo' nomine, was subjected to a duty of three cents per pound. 1 Stat. 259.

In 1816, the same duty was again imposed upon it. 3 id. 311.

In 1824, a duty of four cents per pound was imposed upon it ■ by name. 4 id. 28.

In the Revised Statutes, it is subject to a duty of fivements per pound. Rev. Stat. p. 478.

Contemporaneously and side by side, all the .way down, the statutes provide for different, rates of du y on the varieties of sugar and on confectionery, as well as on chocolate. Confectionery and chocolate are uniformly recognized as being different articles for the purpose Of duties. _

In the tariff act of 1846 (9 id. 44)," comfits and sweetmeats ” are dutiable at forty per- cent“ confectionery ” of all kinds, ' at thirty per cent; and “ chocolate?* -at. twenty per cent.

■ In the act of 1861, “ comfits and swéetmeats ” are placed at thirty per cent; “ confectionery .of all kinds, not otherwise provided for,” at thirty per cent; “ chocolate,” at twenty per cent. 12 id. 180, 189.

By the act of Jnly, 187.0, chocolate is again made dutiable by name (16 id. 262); and again by the act of June, 1872 (17 id. 231).

In the Revised Statutes, “ sugar-candy and confectionery ” are provided for, as are “ comfits, sweetmeats, and preserved fruits; ” and, separately, “ chocolate,” at a different rate of duty. Rev. Stat. pp. 472, 478.

It is quite evident that Congress has at all times intended to preserve the distinction between these articles, and that the circuit judge decided correctly-when he held that chocolate, although in the form and of the character described, was not-dutiable as “ confectionery ” under the act of 1864.

Judgment affirmed.  