Imágenes de páginas
PDF
EPUB

The second provision of section 7, which has been above referred to, provides that on unenumerated articles manufactured of two or more materials the duty shall be assessed at the highest rate at which the same would be chargeable if wholly composed of the component material thereof of chief value. These articles were concededly not specifically enumerated in the act, and they are composed of two materials, of which feathers are the more valuable. Therefore, according to the provision last above cited, they were dutiable at the same rate as if manufactured wholly of feathers. That is to say, they should be assessed as if they were manufactures of feathers. Now it is true that the term "manufactures of feathers" does not appear in those words in the act. However, paragraph 425 enumerates feathers of all kinds "when dressed, colored, or otherwise advanced, or manufactured in any manner." It is argued by appellants that these terms refer only to such means and results as improve the feathers themselves, and that manufactured feathers are simply feathers finished in quality by treatment. But while this meaning is certainly contained within the term, nevertheless it is not the only meaning which may fairly be given it. Feathers of all kinds, when dressed or colored, or when otherwise—that is, by processes additional to dressing or coloring-they are advanced or manufactured in any manner, are included within this classification, and it is obviously designed to be a very comprehensive one. The broad provision for all processes whereby the feathers may be advanced or manufactured in any manner may well include the simple process of threading the feathers upon a string. This construction does no violence to the language of the provision and makes it consistent with the other provisions of the law which are within the same subject matter.

By adopting this interpretation, dressed and finished feathers would be dutiable at 50 per cent ad valorem; such feathers if united for use without the addition of any other material would bear the same rate. If they were combined with other materials in the manufacture of a new article, such article, unless specifically enumerated, would be dutiable at the rate chargeable to a manufacture composed wholly of the component material of chief value. It should be remembered that these statements all apply to the act of 1897.

The Berlinger case, cited by appellants, does not conflict with this conclusion. In that case the articles were manufactured of feathers, wire, cotton, and buckram, and therefore could not be called manufactures of any of the component materials alone. They were therefore classified under paragraph 193 as manufactures in part of metal, not otherwise provided for. That decision, when limited to the actual issue involved, does not necessarily imply that there was no provision in the act for manufactures of feathers, any more than that

there was no provision for manufactures of metal, cotton, or buckram. The articles in that case, because of their composition, could not fall within any such single classification; and the court was therefore not required to pass upon any issue involved in the present case. The decision of the board is affirmed.

LOEWENTHAL v. UNITED STATES (No. 499). SUNDHEIMER . UNITED STATES (No. 500).1

NARROW SILK FABRICS SHOWING ORIGINAL DESIGNS.

Trimmings were provided for eo nomine, in paragraph 390, tariff act of 1897. The testimony shows that silk fabrics such as those imported, to 1 inches in width, with original designs thereon, are known commercially as trimmings; and they fell within the eo nomine description, although the term is a comprehensive one and may include articles that are sometimes designated by a name more restricted in meaning. The importation was dutiable under paragraph 390, tariff act of 1897.-Sidenberg v. Robertson (41 Fed. Rep., 763); Naday v. United States (164 Fed. Rep., 44).

United States Court of Customs Appeals, May 8, 1911.

APPEAL from the United States Circuit Court for Southern District of New York, G. A. 6909 (T. D. 29761).

[Affirmed.]

Comstock & Washburn (Albert H. Washburn and Geo. J. Puckhafer of counsel) for appellants.

D. Frank Lloyd, Assistant Attorney General (Martin T. Baldwin on the brief), for the United States.

Before MONTGOMERY, SMITH, Barber, De Vries, and MARTIN, Judges. MONTGOMERY, Presiding Judge, delivered the opinion of the court: The two cases were heard together, and involve merchandise which consists of narrow woven silk fabrics from half an inch to 14 inches in width showing original designs in various colors and patterns. They were assessed for duty at the rate of 60 per cent ad valorem under paragraph 390 of the act of 1897. They are claimed to be dutiable at the rate of 50 per cent ad valorem under paragraph 391 of the same act.

The material portions of the paragraphs in question are as follows: 390. Laces, and articles made wholly or in part of lace, edgings, insertings, galloons, chiffon or other flouncings, nets or nettings and veilings, neck rufflings, ruchings, braids, fringes, trimmings, embroideries and articles embroidered by hand or machinery, or tamboured or appliqued, clothing ready made, and articles of wearing apparel of every description, including knit goods, made up or manufactured in whole or in part by the tailor, seamstress, or manufacturer; all of the above-named articles made of silk, or of which silk is the component material of chief value, not specially pro

1 Reported in T. D. 31592 (20 Treas. Dec., 1007).

vided for in this act, and silk goods ornamented with beads or spangles, of whatever material composed, sixty per centum ad valorem.

* *

* * *

391. All manufactures of silk, or of which silk is the component material of chief value, * not specially provided for in this act, * fifty per centum ad valorem.

*

The importers appealed
District of New York,
From that affirmance

The Board of General Appraisers held the articles to be properly dutiable as trimmings under paragraph 390. to the United States Circuit Court, Southern where the decision of the board was affirmed. the importers now appeal to this court.

A similar case arose in 1902 and 1903 involving narrow ornamental silk fabrics, and was considered by the Circuit Court in Naday & Fleischer v. United States (155 Fed. Rep., 303), and again, on appeal, by the Circuit Court of Appeals of the Second Circuit, and is reported under the title of Naday & Fleischer v. United States (164 Fed Rep., 44). In these two decisions the importation was held dutiable under paragraph 390. The Board of General Appraisers expressly found as a fact that the goods in this case did not differ from those in the Naday & Fleischer case, and this finding was affirmed by the Circuit Court.

The question there adjudicated is renewed in this case, and it is sought to differentiate the present case from that in this: The contention is made that the word "trimmings" had come to have, prior to the enactment of the statute in 1897, a narrow meaning which limits its application to merchandise which is made up into trimmings by the seller from such articles as those imported in these cases, and does not include articles which are used as trimmings. A careful examination of the record in the case has satisfied us that the finding of the Board of General Appraisers is not only justified but is supported by an overwhelming weight of the testimony.

The witnesses for the importer testify that the word "trimmings" describes the goods in question. As an illustration, the witness Max Sundheimer, one of the importers, testifies, in answer to the questions:

Q. And, as far as you know, goods of this class that we have before us have always been considered by the trade as trimmings?-A. No; a great many call them ribbons. [The question was ordered re-read.]-A. By trimming buyers; yes.

In another place he testifies:

Q. *

* *

I want to know what are the goods that you referred to when you said you were a dealer in trimmings?-A. Anything a woman can use in trimming. Q. Such goods as we have here?-A. That is one of a few articles; yes, sir.

[blocks in formation]

Q. Is the word "trimmings" a commercial word that is understood by the trade?— A. "Trimmings" is such a general article. Groceries. If a man goes in a grocery store it is some certain thing he wants.

Q. Do you know whether the trade understands what is meant by the word "trimmings "?—A. A trimming is a great quantity of articles.

Without quoting from other witnesses, it is enough to say that the effort to show that "trimmings" is not a commercial term evidently rested upon the idea that articles which are in fact trimmings and are known to the trade as such consist of a variety of articles which may be given a name in the trade more specific, and which nevertheless fall under the trade designation of trimmings. It is not claimed in this case that section 391 described eo nomine the importations in question. We think a very good statement of the law is contained in the charge of Lacombe, Judge, in Sidenberg v. Robertson (41 Fed. Rep., 763), from which we quote:

The plaintiff has to cover with his trade evidence both descriptions of words-the words under which the laces are actually bought and sold, and also the word or words under which he claims that they are not known. Of course, if the particular word or phrase by which they were bought and sold were one of the phrases or words in the tariff act, as soon as he had proved that the articles were bought and sold, and known in commerce by that word or phrase, he would have proved his whole case. But where the particular word, the trade meaning of which he proves is not in the tariff act, and that instrument contains only general words, he must go further, and prove not merely that the articles are bought by one particular trade name, but that the general words used in the tariff act, which otherwise would cover them, do not cover them in trade and commerce.

Applying this language to the present case, it is incumbent upon the importers to show that although these importations may in some instances be known as ribbons or other specific name, yet if they are in fact also known to the trade as trimmings, the importer has failed to make his case. See also In re Herrman (56 Fed. Rep., 477); Drew v. Grinnell (115 U. S., 477); and In re McGibbon, G. A. 6147 (T. D. 26692).

We do not overlook the contention of the importers' counsel that the word "trimmings" is used by dealers as a descriptive term rather than as a trade term. But it is a sufficient answer to say that we are convinced from the testimony that in the sense in which a broad trade term may be given effect, this term is shown to be one used in the trade within the meaning of the cases above cited. Nor can we accept the view of the importers that the word "trimmings" has been given a restricted meaning in the trade which excludes the articles in question here.

We do not know of any reason for departing from the rule laid down in the Naday & Fleischer case or for overturning the finding of fact by the Board of Appraisers and by the Circuit Court in this case, and it follows that the decision of the Circuit Court should be affirmed.

STONE v. UNITED STATES (No. 516). KRAEMER v. UNITED STATES (No. 527).1

1. "SADDLERY."

In view of the construction by the administrative departments, by the board, and by the courts, and in the absence of clear proof of a commercial designation, the word "saddlery" occurring in paragraphs 450 and 461, tariff act of 1909, can not be taken to apply to articles used in the care of horses or for horse-stable equipment.

2. CURRYCOMBS, HOOF PICKS, HORSE CLIPPERS, WHIP THONGS, AND THe Like. Currycombs, hoof picks, horse clippers, whip thongs, and the like are not "saddlery," and these are dutiable according to the component of chief value as manufactures of metal or the manufactures of leather.

3. TIME PROVISO IN PARAGRAPH 450, TARIFF ACT OF 1909.

The qualifying words of one clause of a section may be extended to other clauses or even other sections of a law, if to give effect to the apparent intent of the legislature this is necessary; and the proviso in paragraph 450, tariff act of 1909, that on and after October 1 of that year certain described leather goods should bear a prescribed rate of duty, will be taken to apply to all the articles enumerated in the several clauses of that proviso and to similar articles also designated in paragraph 461 of the act.

United States Court of Customs Appeals, May 8, 1911.

APPEAL from Board of United States General Appraisers, Abstract 24331 (T. D. 31134). [Affirmed.]

Brown & Gerry for appellants.

D. Frank Lloyd, Assistant Attorney General (Charles E. McNabb on the brief), for the United States.

Before MONTGOMERY, SMITH, BARBER, DE VRIES, and MARTIN, Judges. MONTGOMERY, Presiding Judge, delivered the opinion of the court: The importations the subjects of controversy in these two cases are, as to the first-entitled cause, currycombs, hoof picks, rack chains with two snaps, a swivel, and a ring, horse clippers, and parts of horse clippers. As to the second-entitled cause, whip thongs, lip straps, bridle fronts, pony bridles, and leather-covered buckles.

The above-described importations of Stone & Co. and Bartley Bros. & Hall, which were the subject of protest in the first-entitled cause were classified as "manufactures of metal and manufactures of leather, and dutiable, respectively, at the rate of 45 per cent under paragraph 199 of the tariff act of 1909 and at the rate of 40 per cent under paragraph 452.

The importation of whip thongs protested in the second entitled cause was classified as manufactures of leather, dutiable at the rate of 40 per cent under paragraph 452. A further question raised in the second above-entitled cause will be dealt with later.

1 Reported in T. D. 31593 (20 Treas. Dec., 1010).

« AnteriorContinuar »