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most articles which have been frozen, or even preserved, as compared with the fresh article, ofttimes due to the fact that the preservation has not been completed, or that the preservation began after decomposition began.

We think frozen lamb and fresh lamb are so similar in material, quality, texture, and use that under paragraph 1460, by similitude, it may be classified as fresh lamb under paragraph 702. The doctrine of similitude can be evoked only for nonenumerated articles.-United States v. Stouffer Co. (3 Ct. Cust. Appls. 67; T. D. 32351). Under the proof in this case the importation is nonenumerated. For simili. tude to apply it is not necessary that the articles be of identically the same material, or of the same use, or of the same texture. It is only required that they be substantially similar.-Isler & Guye v. United States (11 Ct. Cust. Appls. 340; T. D. 39146). If they were of the

. same material and the same texture, quality and use, they would be the same and would, therefore, be enumerated.

In the United States v. Buss and Warner (3 Ct. Cust. Appls. 87; T. D. 32357), the rule of similitude was laid down as follows:

By the very terms of the similitude clause an importation not named is to be assessed at the same rate as the article that is named either generally or particularly which it, the imported article, most resembles.

In the case at bar the doctrine of similitude is claimed by both the Government and the importers.

Since the article is not eo nomine provided for, and since it is clear that it can not be classified under section 1459, we are called upon to apply the doctrine of similitude to the two paragraphs in question. In applying the doctrine laid down in the Buss and Warner case, supra, and numerous other cases, we are led to inquire, as between fresh lamb and prepared or preserved meat, which does the imported article most resemble? Clearly it most resembles fresh lamb. Fresh lamb, under paragraph 702, is more specific than fresh meat under paragraph 706, and therefore the imported frozen merchandise should be classified, by similitude, as fresh lamb. In so deciding we are not unmindful of the very clear difference between frozen lamb and fresh lamb, but we are also especially impressed with the similarity in material, quality, texture, and use. Furthermore, since the tariff act of 1922 was designed for protection as well as for revenue purposes, we can not overlook the fact that Congress would probably have in mind the protection of fresh lamb produced in this country by imposing the same duty upon frozen lamb from cheaper producing countries. This seems especially true in view of the consideration that the frozen product, when marketed or used, competes directly with the home-produced unfrozen article.

The judgment of the Board of General Appraisers is reversed.

UNITED STATES v. STONE & DOWNER CO. ET AL. (No. 2463)

1

PARAGRAPH 18, EMERGENCY TARIFF Act of 1921—"Wool COMMONLY KNOWN

As Clothing Wool”-COMMERCIAL DESIGNATION—JUDICIAL NOTICE.' Presumptively, common and commercial meanings coincide. The court judicially knows the common meanings of words, but may consult authorities and receive testimony as a refreshment of the judicial memory. Tariff laws are couched in the language of commerce; and a tariff term shown to have a commercial meaning different from its common meaning will be so interpreted. But the expression “clothing wool" appears to have only one meaning, which is a short-stapled wool prepared by carding, as distinguished from combing wool, which is a long-stapled wool prepared by combing. Consequently, the provision of paragraph 18, emergency tariff act of 1921, for “wool, commonly known as clothing wool," includes such wool only; and the fact that combing wool is also used for making clothing does not bring it within the provision.Stone & Downer Co. et al. v. United States (12 Ct. Cust. Appls. 62; T. D. 40019).

United States Court of Customs Appeals, March 23, 1925 APPEAL from Board of United States General Appraisers, G. A. 8842 (T. D. 40368)

(Affirmed.]

William W. Hoppin, Assistant Attorney General (Charles D. Lawrence, special attorney, of counsel), for the United States.

Sharretts, Coe & Hillis and Waterhouse & Lockett (George J. Puckhafer, associate counsel, and Edward P. Sharretts of counsel) for appellees.

(Oral argument January 29, 1925, by Mr. Lawrence and Mr. Sharretts/

Before Graham, Presiding Judge, and Smith, BARBER, BLAND, and HATFIELD,

Associate Judges

BLAND, Judge, delivered the opinion of the court:

The Government appeals from the judgment of the Board of General Appraisers in T. D. 40368 (G. A. 8842), sustaining protests of the importers and reversing the collector of customs in assessing duty under paragraph 18 of the emergency tariff act of May 27, 1921, upon certain wool, woolen cloth, and yarn importations made at the port of Boston.

Paragraph 18 is as follows:

18. Wool, commonly known as clothing wool, including hair of the camel, angora goat, and alpaca, but not such wools as are commonly known as carpet wools, etc.

At the trial below it was stipulated that the wool covered by protests 945882/11410, 945938/11385, and 956790/11920 is in every essential and material respect the same as Exhibits 1 to 12, inclusive, in suit No. 2245, decided by the United States Court of Customs Appeals in Stone & Downer Co. et al. v. United States (12 Ct. Cust. Appls. 62; T. D. 40019), dated November 17, 1923 (45 Treas. Dec. 167), and that the yarn covered by protest 950777/11585 consists of

1T, D. 40784.

a

66

a

worsted yarn and is in every essential and material respect the same as Exhibit 15 in said suit No. 2245.

It was further stipulated that the cloth covered by protest 949137/ 11507 consists of worsted cloth made from worsted yarn and is in every essential and material respect the same as Exhibit 14 in said suit No. 2245.

It was also stipulated that the record in said suit No. 2245, including the exhibits, shall be made a part of the record in this case.

Exactly the same questions are here involved as were before the court in the Stone & Downer case, supra. Some new evidence was introduced by both sides with reference to the meaning of clothing wool.” The new evidence throws no new light on the case, except that a reading of it confirms us in the opinion that wherever and whenever clothing wool is spoken of by anyone knowing the meaning of the term it means a short-stapled wool used in the carding process as distinguished from combing wool, which is used in the combing or worsted process.

The Government has argued that under the new evidence it has proven a common meaning, prevalent among our people, for the words "clothing wool" different from their commercial meaning and insists that Congress, when it used the words "commonly known as clothing wool,” had reference to this meaning and not to the meaning given the words when used by those in the trade. If that fact had been established satisfactorily, the collector should have been sustained. We think the testimony in the case and the authorities consulted conclusively show the contrary.

The Government's new witnesses attempted to show experience or knowledge in the production, sale, and manufacture of wools and made an attempt to testify in dual capacities. As producers they very lamely maintained that clothing wool meant any wool that went into the making of clothing; but when they forgot their producers' experience and thought of wool from the trade viewpoint, then clothing wool meant a short-stapled wool used in the carding process. The Government sought to show, from witnesses purporting to be familiar with the question, what one unfamiliar with the question would say and think. As suggested by the trial court, why did not the Government bring in the man from the street who knew nothing about the grades of wool? It is apparent that those who defined clothing wool as "all wool that went into the making of clothing either knew nothing about or ignored the meaning of the words "clothing wool” when used by anyone familiar with the subject.

In this whole record, which includes the record of the former case, there is no convincing testimony that the words “ clothing wool” are ever used by anyone knowing anything about the subject except to describe the short-fibered wool, and it is apparent to us that

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those who do not know the meaning of the words "clothing wool,"' rarely, if ever, refer to it as such, and, if they do, it would be to misapply the term. When we read the testimony of additional witnesses and consult additional authorities, it becomes more apparent that the common meaning of the words “clothing wool" is that it is the short-fibered wool.

We are asked to ignore the well settled and consistently followed canons of construction and give to the words used a meaning not sustained by the statute itself and inconsistent with all previous tariff legislative precedents. The Government invokes the broad and liberal rule of construction of the case of the Church of the Holy Trinity v. United States (143 U. S. 457), and asks us to say, contrary to the evidence and contrary to all recognized authorities, that clothing wool should be held to mean wool used for the making of clothing for the reason that there was an emergency for this kind of wool to receive protection in the home markets. This would be contrary to the use given the word in previous tariff acts and contrary to the common, ordinary use of the words

The illustration of "apples, commonly known as eating apples,” was given. It is urged that we all know what "apples” means and that we all know what “eating" means. Therefore, if "eating apples” were in the tariff act, we would be required to say all apples that were to be eaten would be included within this term. This court happens to know that there is a common meaning for “eating apples" and that they are distinguished from “cooking apples," and that, if “eating apples” were used in a tariff schedule prefixed by the words "commonly known as" this court would be justified in holding "eating apples" did not mean all apples that were to be eaten; that Congress in using the term “eating apples” had reference to a class of apples which, although to be eaten, were separate and distinct from cooking apples. The fact that some people who eat apples, but who know nothing about the meaning in which the term is used by those familiar with the terms, might define them as any apples that could be eaten, would not obligate this court to accept such meaning, nor could its refusal to accept such meaning be regarded as its acceptance of a commercial term not commonly used.

The Government propounded the inquiry, if there is a common meaning to the words “clothing wool” and if they are unambiguous, why have witnesses testified as to their meaning? We think the answer is so apparent as to hardly need statement. A word in the tariff act may be used in its common sense, be unambiguous and yet be not understood by one having no knowledge of the question. To those having information on the subject it may be free from ambiguity and, to them, it may be used in its common or only

We can conceive of a great many things listed in a tariff statute that are used in their common sense which would require explanation and identification in order that the classifier might satisfy himself that they were used in that sense. The Government contends that the words “commonly known as

sense.

“ clothing wool" are ambiguous and that they, therefore, require explanation, and that the history of the legislation and all facts connected with the passage of the act, including debates in Congress, reports, etc., should be and must be resorted to in construing their meaning. In the Stone & Downer case, supra, we held that the words were not ambiguous and that extrinsic facts and the history of the legislation, even if persuasive, could not be permitted to override a plain meaning as expressed by the words used in the act. This subject was thoroughly discussed in the former case and the rule is so plain, so well settled, and so uniformly adhered to by the Supreme Court of the United States, as well as practically almost every known judicial tribunal, that it requires no elaboration here. Bate Refrigerating Co. v. Sulzberger (157 U. S. 1); Pennsylvania R. Co. v. International Coal Min. Co. (230 U. S. 184); Omaha & C. B. Street R. Co. v. Interstate Commerce Commission (230 U. S. 324).

If we were permitted to go into these facts, as counsel have gone into them in the argument, it would be an interesting but difficult problem to know what weight to give to certain of these facts which can be used to support either contention before us. It may be urged that some Congressmen voted for the bill as it appeared with the belief that combing wool had been omitted so as to encourage the worsted industry in the United States. Other Members may have voted for it for an entirely different reason. Surely we can not be permitted to speculate as to why Congress, as a whole or as individuals, would wish to include or exclude one of the well-known grades of wool from the protective tariff provision. That is their business, not ours.

The amendment, offered by Senator Lodge, to strike out the words "commonly known as clothing wool" and insert "all wool” is illustrative of how unsatisfactory such testimony would be if we were permitted to enter that field. The importers and the Government, both, with equal plausibility, may point out how it reflects the understanding of one branch of Congress.

Since we are passing upon the meaning of certain words used in paragraph 18, it is important to note that the paragraph, after laying a duty upon clothing wool, says, “but not such wools as are commonly known as carpet wools." There are clothing carpet wools and combing carpet wools, well known to the trade. Carpet wools, while probably chiefly used in carpets, are also extensively used in making some kinds of wearing apparel, where coarseness of

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