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other. The board did not err in its ruling on this branch of the case*

The other question presented in the brief of counsel as to the
second case is that dependent upon the construction of the proviso
to paragraph 450. The pertinent provisions of the statute are aa
follows:

Par. 450. Hides of cattle, raw oi" uncured, whether dry, salted, or pickled, shall b©
admitted free of duty: Provided, That on and after October first, nineteen hundred
and nine, grain, buff, and split leather shall pay a duty of seven and one-half per
centum ad valorem; that all boots and shoes made wholly or in chief value of leather
made from cattle hides and cattle skins of whatever weight, of cattle of the bovine
species, including calfskins, shall pay a duty of ten per centum ad valorem; that
harness, saddles and saddlery, in sets or in parts, finished or unfinished, composed
wholly or in chief value of leather, shall pay a duty of twenty per centum ad valorem.

Par. 461. Harness, saddles, saddlery, in sets or in parts, finished or unfinished^
thirty-five per centum ad valorem.

The importer contends that the provisos to paragraph 460 as to
time is to be restricted to the first clause of the proviso. If this con-
struction be placed upon the language, it renders paragraph 461 ^
which fixes a duty of 35 per cent ad valorem on harness, saddles,
saddlery, accessories and parts, finished or unfinished, inharmonious^,
as its language clearly includes many articles which w^ould by prot-
estant's construction fall under the leather paragraph. According
to the construction of the importer, this same provision in paragraph
450 that harness, saddles, saddlery, accessories and parts, finished or
unfinished, composed wholly or in chief value of leather, shall pay a
duty of 20 per cent ad valorem, places a restriction upon harness^,
saddles, and saddlery composed wholly or in chief value of leather.
This classification would include almost all property which would
otherwise fall under paragraph 461. But aside from this we think
the language is perfectly plain. In the absence of language speaking^
to the future in the various paragraphs of section 1 the bare state-
ment of the rate of duty is all that occurs, and it relates back to tho
first part of the section where it is declared —

That on and after the day following the passage of this act, except as otherwise^
specially provided for in the second section of this act, there shall be levied, collected^
and paid upon all articles when imported from any foreign country into the United
States or into any of its possessions * * * the rates of duty which are by the-
schedules and paragraphs of the dutiable list of this section prescribed, namely:

32354— VOL 2—12 4



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50 2 COURT OF CUSTOMS APPEALS.

In paragraph 450 the proviso is intended to take effect in the
future. It is provided that on and after October 1, ''seven and one-
half per centum ad valorem;" and following further is the proviso
that "harness, saddles, saddlery in sets or in parts, finished or imfin-
ished, composed wholly or in chief value of leather, sAoZZ pay a duty
of twenty per centum ad valorem." These words ''shall pay a duty
of" were obviously introduced for the purpose of making the enact-
ment speak as of a future date and relate back to the words ''on and
after October 1, 1909."

It is hardly necessary to cite authority to support what seems to
us a very obvious construction of this statute, but the authorities
cited in the brief of. counsel for Grovernment are ample to justify
the statement that the court will look to the entire clause or section
and will apply the words as the evident intent of the legislature is
manifested and that qualifying words of one clause of a section may
be extended to other clauses or even to other sections if such be the
apparent intent of the legislative body. EndUch on Interpretation
of Statutes (sees. 404, 414); Lewis's Sutherland Stat. Cons. (sees.
409, 420, 421). The language of the court in TJie Harriet (11 Fed.
Cas., 588), opinion by Mr. Justice Story, is pecuUarly appropriate:

If, then, a clause is found in one section which, in its general languiE^e and import,
is equally as applicable to other sections and provisions of the same act as it is to the
very section in which it is found; if the main objects of those sections and the true
intent and policy of the act will be best promoted by reading it as applicable to all
those sections; and if public mischiefs equally within the scope of the statute would
be thereby prevented, and upon a different construction those mischiefs would be
left without redress, there certainly is very strong ground to say that the clause ought
to be so construed as to suppress the mischiefs and not promote or protect them; that,
as its language is appropriate, so it shall be construed as intended to include them.

The purpose of thijs proviso is not difficult to see. Section 450 had
the purpose of admitting hides of cattle free of duty, and also of
reducing the tariff rate on leather and manufactures thereof. But
in view of the fact that the importations of manufactures of leather
would, if admitted at the reduced rate, at once, upon taking effect
of the statute, bring such importations in competition with importa-
tions already made or with domestic fhanufactures which had been
produced at a time when the tariff rate was much higher, it was
thought best to give to the manufacturer the opportunity to market
his goods before this substantial reduction should be effective.
Obviously this consideration applied as well to the manufactures of
leather, such as those under consideration in this case, as to any
others named in the proviso.

We think the Board of General Appraisers did not err upon this
branch of the case. It follows that the decision of the board in
each of these cases is affirmed.



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sheldon v. united states. 51

Sheldon v. United States (No. 518). Hempstead v. United States

(No. 519).^

1. Court op Customs Appeals— Powbrs to Revibw.

The act creating this court empowers it to review not alone the law, but, when
the findings of the Board of General Appraisers are made an issue, to review the
facts presented upon appeal to this court. .

2. A Record Used as a Basis for Opinion Below Should be Incorporated Here.

To enable this court fairly to review a finding of fact by the board, when this
finding is made an issue on appeal, it is essential that the court should have before
it all the testimony that influenced the board in reaching its conclusion.

3. Same.

This is not to say the board may not, in the course of its oftentimes necessarily
summary determinations, rely in its findings on proof in other like cases, heard
on earlier dates by the board.

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

Appeal from Board of United States General Appraisers, Abstract 24047 (T. D. 30983).
[Reversed.]

Cvrie, Smith dc Maxwell iW. Wickham Smith and Thos, M. Lane of counsel) for
appellants.

D. Frarik Lloyd, Assistant Attorney General ( T, J, Doherty on the brief), for the
United States.

Before Montgomery, Smith, Barber, De Vrieb, and Martin, Judges.

De Vries, Judge, delivered the opinion of the court:
The chief and we think controlling contention in these cases is a
matter of procedure. The cases arose at the port of Chicago, were
duly noticed for hearing before a general appraiser sitting at that
port, arid testimony on behalf of the importers introduced. The
record was returned to the port of New York, and in due course
decision rendered.

The decision of the board is as follows :

The merchandise consists of a thick paper of the variety known as "millboard"
or ** binders' board.'* The collector assessed duty on the said paper board at
the rate of 35 per cent ad valorem under the provisions of paragraph 415, tariff
act of 1909, as "cardboard." It is claimed that the merchandise is dutiable
properly at 30 per cent ad valorem under paragraph 415, as ** paper" not specially
provided for.

The proof offered in these case? does not warrant a departure from the ruling of
the board as laid down in G. A. 7078 (T. D. 30826), and for the reasons stated in that
decision these protests are overruled. The assessments in question are affirmed.

It is urgently contended by counsel for the importers, as shown
by the decision, that the findings of the board were controlled by its

I Reported in T. D. 31504 (20 Treas. Deo., lOlfi).



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52 2 COURT OF CUSTOMS APPEALS.

findings in another case, G. A. 7078 (T. D. 30826), and of necessity
the evidence supporting the same.

The testimony in that case is not made a part of the return in this
case, nor was it upon motion of either party or order of the general
appraiser made a part of the record.

The Assistant Attorney General in his brief, and in support of his
contentions, cites as to the necessity and propriety of the practice
followed by the board, and in support, of its findings, excerpts from
an opinion written by Judge Somerville in G. A. 5437 (T. D. 24715),
as follows:

In this case a request has been made by the counsel for the Government that the
testimony taken by the board in the Leerburger case above cited be introduced as
evidence in this case, which request is granted in accordance with a well-settled
practice of the board. Suits to recover back duties alleged to have been illegally
exacted usually involve, .as one of the necessary issues, the proper classification of
imported merchandise, so that, in a certain sense, such suits are proceedings dt rf,
rather than inter partes. In this view of the matter, the board has found it expedient
and conducive to justice to allow, on the motion of either party, the introduction of
evidence taken in other cases whenever it has been shown that the merchandise in
question was of the same kind. It is not unusual for the board to take the testimony
of 20 or 30 witnesses as to the character and uses of merchandise; and if this testimony
could not be applied, in the discretion of the board, to other like goods embraced in
different importations, great embarrassment and delay might ensue. It could scarcely
have been the intention of Congress to oblige the board to take such voluminous
evidence de novo in every case arising before it, similar cases often running into the
thousands. One of the objects of the customs administrative act was to simplify the
collection of the revenue and afford importers a speedy determination of controversies
relating to it, and to produce uniform classification of imports. Section 15 of said act
has, therefore, carefully provided that "all the evidence taken by and before said
appraisers shall be competent evidence " on appeal to the Circuit Court, The decisions
of the courts have also established the soundness of the board's practice in this respect.
In Klipstein's case on zinc dust, G. A. 4744 (T. D. 22415), the board expressly based
its finding in part on the evidence taken in a former case, and its decision was affirmed
by both the Circuit Court and Circuit Court of Appeals; and on more than one occasion
judges have openly declared that they were guided to some extent in deciding customs
cases before them by their knowledge of testimony taken in other cases. Field v.
United States (90 Fed. Rep., 412, 33 C. C. A., 138, 139); Sullivan v. Robertson (37 Fed.
Rep., 778, 779).

This statement by Judge Somerville, which very succinctly and
clearly justifies the procedure upon behalf of the Board of General
Appraisers therein considered, is not precisely applicable to these
cases on appeal to this court.

Any knowledge of the enormous number of protests necessary of
decision by the Board of General Appraisers and the character of
those protests certainly warrants the summary procedure adopted
by the board. Without it their already onerous labors would not
only be greatly multiplied, but would be beyond the possibility of
performance by any similar number of officials.



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SHELDON V. UNITED STATES. 53

The statutory requirements defining the duties of this court,
however, when taken into consideration with the condition siu:-
rounding the procedure in these cases, does not enable this court
from this record to perform those duties incumbent upon it by the
law. By the organic act creating this court we are to review not
alone the law but the facts presented upon appeal here when the
findings of the board are made an issue.

In this case, as shown by the decision of the board, they reached
then- conclusion upon authority of G. A. 7078 (T. D. 30826). This
resulted, as indicated by the board in its decision, that though the
testimony introduced in this record might tend to estabUsh a conclu-
sion contrary to that reached by the board in the previous case,
nevertheless, the board did not consider this testimony sufficient to
outweigh its findings in another case, which findings were, of course,
reached by virtue of the testimony in the other case. The very course
of the board indicates, as is shown by this record, that the testimony
in this record might prompt upon behalf of the board itself another
conclusion than that reached by it, were it not strengthened by
testimony in the other case which it had previously heard, considered,
and decided.

In order to enable this court, however, to review that finding of
fact by the board which is made an issue upon this appeal it is essen-
tial that the court should have before it all the testimony which influ-
enced the board's conclusion and ultimate finding of fact before this
court can fairly or justly review that finding. That testimony is not
a part of this record, and so far as this record speaks there is before us
that testimony alone which the board in its opinion indicates is con-
trary to its conclusion, and which it, therefore, impliedly finds sus-
tains a contrary finding. That being the only testimony in the case
before this court we must measure the findings of the board by the
testimony before us, which under the circumstances of this record can
lead to no other possible conclusion than that they are unsupported
by the evidence in the record.

It is obvious that il this court holds presumptively true and con-
clusive a finding of the Board of General Appraisers which is sup-
ported merely by citation of other findings in another case that such
practice would not be a review by this court of all the testimony
supporting the board's conclusion, but would be accepting and mak-
ing final by this court a prior decision of the Board of General
Appraisers from which no appeal had ever been taken and the testi-
mony supporting which is not before the court.

This brings us to a consideration of the cases cited in the opinion of
Judge Somerville. It is stated in G. A. 4744 (T. D. 22415), the United
States Circuit Court for the Southern District of New York and



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64 2 COURT OF CUSTOMS APPEALS.

the United States Circuit Court of Appeals for the Second Circuit
approved that . course upon the part of the board. What the
courts did in that case is shown by the decision of Judge Somerville
not to have been done in this case. In that case it is stated
in the opinion of Judge Somerville, in G. A. 4744 (T. D. 22415), as
follows:

We may add that in the trial of these cases all the testimony admitted in the Circuit
Court or Circuit Court of Appeals in the Koessler case, supra, was received by the
board as evidence, and some additional testimony was taken, both by the Government
and the importeis.

So that there was in that case the whole record upon which the
board's previous decision was rendered for review by the Circuit
Court and Circuit Court of Appeals. As to advertance by the court
in the other cases cited by the learned judge, they were cases which had
come under observation of the appellate court itself, had been
reviewed by it, and were, therefore, decisions in which the records
themselves were before that court for examination in conjunction with
the decision rendered therein as explanatory thereof should the court
so desire. But in these cases there is not before this court the
testimony which controlled the Board of General Appraisers in its
decision.

The board in the course of its experiences in the trial of these
numerous cases has recognized the serious character of this situation,
and by Rule XXXIV, which it was expressly empowered to enact by
Congress, they put in concrete form a method of procedure which
would seem to apply fairly and justly to all parties concerned and meet
the requirements of the situation. That rule, in a word, provides
that records in previous cases can upon motion of either party or the
general appraiser be made a part of the record, but that there shall
be the right of cross-examination of the witnesses. Such a rule makes
for the early determination of customs cases, and affords all parties
concerned a fair opportunity to be heard.

Whilst we are not here deciding that the board may not rely upon
its findings in other cases in the course of its necessarily summary
determinations, the very organic act of this court compels us to the
conclusion that, when a review of the finding of facts is here invoked,
this court is unable to do so unless at least there is incorporated within
the return of the board, and made a part of the record in this court,
all the testimony and evidence considered and given any weight by
the board in making that finding.

Under the circumstances we have no other recourse than to reverse
the cases and remand them for a new trial. Accordingly the decision
of the board is reversedj and so remanded.



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GEBMANIA IMPORTING 00. V. UNITED STATE«. 55

Germania Importing Co. v. United States (No. 520).^

1. Thb Making of Pafbr.

To constitute a material paper, it is not necessary that the machine used in its
manufacture should be known as a paper-making machine, nor that the material
ahould contain glue, alum, and clay; the product determines its classification.

2. WnAPFiNa Papeb.

Material having the ordinary thickness of wrapping paper, with the appearance
of wrapping paper and used as such, must be deemed not wood pulp but wrapping
paper, and was dutiable under paragraph 402, tariff act of 1897, as paper not specially
provided for.

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

Appeal from Board of United States General Appraisers, Abstract 24059 (T. D. 30991).

[Affirmed.]

John Giblon Duffy (Joseph G. Kammerlohr of counsel) for appellant.
D. Frank Lloydy Assistant Attorney General {Martin T, Baldtoin on the brief), for
the United States.

Before Montoombry, Smith, Barber, Db Vries, and Martin, Judges.

MoNTGOMEEY, Presiding Judge, delivered the opinion of the court:

The merchandise in issue in this case was invoiced as ''pack
cellulose.'' Cellulose in the German language means wood pulp.
It was classified under paragraph 402 of the act of July 24, 1897,
as paper not specially provided for at 25 per cent ad valorem, and is
claimed by appellants to be unbleached chemical wood pulp and
dutiable under paragraph 393 of the same act at one-sixth of 1 cent
per pound.

The sole question in the case is whether the article is paper or wood
pulp. The material is of the ordinary thickness of wrapping paper,
and presents a perfectly smooth surface on one side and has the
appearance of wrapping paper. The evidence shows that it is used
as such.

In Wagner's Chemical Technology paper is defined to be —

A thin felt of vegetable fibers, mechanically and chemically clarified, crushed,
and torn into a pulp suspended in water. This pulp is spread equally in thin lay-
ers, drained, pressed, and dried into the compact substance we call paper.

This article would appear to answer this description. The testi-
mony of numerous witnesses on behalf of the Government shows that
the article is known as paper and sold as paper. The evidence on the
part of the importer does not materially diflFer from that of the
Government's witnesses, but the strength of the importer rests in
the claim that this can not be called paper, first, because it is not
made in a paper-making machine, and, secondly, because it does not

1 Reported in T. D. 31595 (20 Treas. Dec, 1019) ,



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56 2 COURT OF CUSTOMS APPEALS.

contain glue, alum, and clay. A number of witnesses, however,
were called by the Government who testified that the presence of
these ingredients is not necessary, and indeed it would seem to be
demonstrated by this sample that their presence is not necessary to
make paper. The sample itself is enough to demonstrate that it
answers all known definitions of paper as understood by the average
person. The sample is fiim, well adapted to the purpose of wrapping
paper, and we have no doubt that it was so handled and sold by the
importers.

George Staber, a member of the importing company, testified:

Q. In the course of the last two years have you ever had any customers come in
and ask you for any samples of wrapping paper? — A. Yes; I suppose it happens
«very day.

Q. Did you ever show them this article along with other samples? — A. I show
them a lot of things.

Q. Have you ever when they asked for wrapping paper showed them this material
along with others? — A. No; I don't know; I can't say I have.

Q. You probably have, haven't you? — A. Maybe.

The witness, Hans Bayer, who was the manufacturer of this paper,
was asked on cross-examination:

Q. Do you know by what process the smooth, shiny surface on one side of the mer-
chandise is produced? — A. Yes; by a dry cylinder with very smooth surface.

Q. If so, describe the process. — A. When damp cellulose material is pressed onto
the polished surface of the dry cylinder for the purpose of drying, the one side becomes
smooth, the other side remaining rough.

Q. What is the purpose of giving the merchandise this smooth surface? — A. Because
it pleases the eye.

Q. For what use is this imported merchandise made? — A. This produce having not
yet undergone an improving procens, can therefore be used in the manufacture of
paper and as wrapping paper.

The ordinary dry commercial wood pulp is made by a machine
similar to that which produces this except that both cylinders are
felted, the purpose being to eUminate the water from the material in
order to save freight in shipping. Obviously, the thicker the product
-can be left and tliis object obtained the greater the economy in pro-
duction. The practice as to this material, however, is quite different.
It is given a smooth surface on one side, is pressed to a thickness
which makes it available for use as paper, and it is obvious that except
in rare cases it would not be used for any other purpose than as paper,
and the testimony convinces us of this fact.

But it is said that this is not paper, for the reason that it is not made
in a paper-making machine. Originally paper was made by hand
process. That some particular machine may make paper by a some-
what different process does not demonstrate that the product now
before us for consideration is not paper.



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UNITED STATES V. BRAUN CHEMICAL CO. 57

In answer to an interrogatory directed to the same witness, Hans
Bayer: ''Is said machine, upon which said merchandise was made, a
paper-making machine?'' he repUed:

Thi» interrogation I can not answer, but according to my directions pack cellulose
should be manufactured on a cellulose-drying machine, which is quite similar to a
paper-making machine.

We think this testimony is stating the fact with moderation, and
that it is so similar in fact that the product which it produces is in
fact paper.

The decision of the Board of General Appraisers so classifying this
product is affirmed.

United States v. Braun Chemical Co. (No. 561).^

Cylindrical Iron Drums Containing Chemical Salts. •

Where the containers are cylindrical iron drums that it is necessary to cut into
two parts in order to remove their contents, and when so cut in two appear to have no
value and do not enter into or become a part of the merchandise of this country
for any purpose whatever, they are not dutiable under paragraph 151, tariff act of
1909, as cylindrical or tubular tanks or vessels for containing purposes and sepa-
rately from their contents, but rather as usual containers possessing no value apart
from their contents, and their value should be assessed along with the contained
merchandise at ad valorem rates under paragraph 3, pursuant to the provisions of



Online LibraryUnited States. Court of Customs AppealsCourt of Customs Appeals reports : cases adjudged in the United States Court of Customs Appeals → online text (page 8 of 71)