Steinhardt & Bro. v. United States

Dé Vries, Judge, delivered the opinion of tbe court: The merchandise the subject of this appeal is- aptly described in the answer to protest by the local appraiser as follows: The merchandise consists of elastic braid composed of silk and india rubber, returned for duty irrespective of the component material of chief value as braid at 60 per cent ad valorem, paragraph 358, act of 1913. Note G. A. 7626, T. D. 34887, sustaining action. Also elastic webbing composed of artificial silk, cotton, and india rubber, the proportion of value shown on analysis to be Per cent. Rubber.'. 26. 39 Cotton. 39.31 Artificial silk. 34. 30 100. 00 As artificial silk and rubber combined is the component material of chief value over the cotton, it was returned for duty as webbing composed in chief value of artificial silk and india rubber, at 60 per cent, paragraph 319. - In the opening brief counsel for the importers abandons the appeal as to the elastic braids in this specific language: This appeal is limited to the merchandise described by the appraiser-and the board as elastic webbing, composed of artificial silk, cotton, and india rubber. Wherefore, the issue as to the elastic braids composed of silk and india rubber is not here discussed, and the decision of the board relating thereto is affirmed. The elastic webbings, pursuant with the foregoing advisory classification of the appraiser, were assessed for duty by the collector as “articles or fab tics composed wholly or in chief value of yarns, threads, filaments, or fibers of artificial or imitation silk and india' [374] rubDer, by whatever name known,” under the provisions of paragraph 319 of the tariff act of 1913, reading: 319. Yarns, threads, filaments of artificial or imitation silk, or of artificial or imitation horsehair, by whatever name known and by whatever process made, 35 per centum ad valorem; beltings, cords, tassels, ribbons, or other articles or fabrics composed wholly or in chief value of yarns, threads, filaments, or fibers of artificial or imitation silk or of artificial or imitation horsehair, or of yarns, threads, filaments, or fibers of artificial or imitation silk, or of artificial or imitation horsehair and india rubber, by whatever name known and by whatever process made, 60 per centum ad valorem. The importers below and here, on appeal, maintain that the web-bings are properly dutiable under the provisions of paragraph 262 of said, act, in pertinent part reading: 262. * * * Fabrics with fast edges not exceeding twelve inches in width, all of the foregoing made of cotton or other vegetable fiber, or of which cotton or other vegetable fiber is the component material of chief value, or of cotton or other vegetable fiber and india rubber, and not embroidered by hand or machinery; * * *. Preliminarily, it should be stated, as assumed by counsel for both parties herein, that the question whether or not artificial silk is a vegetable fiber is in this court stare decisis. In Thomass v. United States (1 Ct. Cust. Appls., 86; T. D. 31107), this court held that artificial silk was not a vegetable fiber as that term is used in our customs import statutes. While the rule prescribed by statute, paragraph 386 act of 1913, is that “component material of chief value” shall be held to mean that single component material .which shall exceed in value any other single component material in the article or fabric, nevertheless Congress may, and oftentimes does, expressly prescribe that in the determination of a particular question of chief value the combined values of one or more single component materials must be treated as one. Such was held by this court in United States v. Gavin & Co. (7 Ct. Cust. Appls., 292; T. D. 36804), wherein beads and spangles were so declared treated by Congress; and in Steinhardt & Bro. v. United States (2 Ct. Cust. Appls., 361; T. D. 32092), wherein "needles” and “books of paper” were, we held,- specifically constituted by Congress the materials to be considered as one in determination of the component material of chief value. Accordingly, in both paragraphs 262 and 319, supra, Congress has expressly prescribed an exception to the general rule of paragraph 386 as to single component materials two of which must be combined and considered as one in the ascertainment of the component material of chief value under these paragraphs. In paragraph 262 it is expressly enacted that the chief component material may be “of cotton or vegetable fiber and india rubber.” In paragraph 319 it is expressly enacted that the chief [375] component material may be “artificial or imitation silk - * * * and India rubber. ” So that in the ascertainment of the component material of chief value under these respective paragraphs the india rubber content must be added to the artificial or imitation silk in the latter instance and to the cotton content in the former. The pertinent result here is that in determining the component of chief value under paragraph 262 cotton., which under the rule of paragraph 386 would be the single component material of chief value; is not such, for in this ascertainment under the special enactment it must be added to the india rubber (26.39 per cent plus 39.31 per cent, equaling 65.70 per cent) whereby the chief component material under the accepted analysis is .the cotton and the india rubber added together. This brings us to the next and controlling issue in the case, should the words “made of” as employed in paragraph 262 be construed as meaning made wholly of or do they also include made in chief value of ? , The rule is well settled that such words as “made of” may be read to mean wholly of only, or, to include both wholly and in chief value of. The guide to proper construction must be found in the context. Kenyon Co. v. United States (4 Ct. Cust. Appls., 344; T. D. 33529); Blumenthal & Co. et al v. United States (5 Ct. Cust. Appls., 327; T. D. 34529). We think paragraph 262 most markedly manifests the intent of Congress in this particular. It embraces the following predications of “fabrics”: (1) “Made of” cotton or other vegetable fiber; and (2) of which cotton or other vegetable fiber is the “component material of chief value”-, and (3) “made of” cotton or other vegetable fiber and india rubber. Unless (1) fabrics made of cotton or other vegetable fiber is read-to mean wholly of, the following provision, (2) fabrics of which cotton or other vegetable fiber is the component material of chief value, is absolute surplusage. With precise and unusual particularity Congress herein has at length employed two distinct provisions expressing presumptively two distinct meanings.. If the first “made of” includes “in chief value of” the latter is surplusage and an idle employment by Congress. But it is these same words, “made of,” that are predicated of - “cotton or other vegetable fiber and india rubber” in (3). This is not by repetition, but by unquestioned relation by grammatical construction. If they must be construed as meaning wholly of only, when predicated in (1) of “cotton and other vegetable fiber,” so when predicated of “cotton or other vegetable fiber and india rubber” in (3), they must be likewise construed. The view is reinforced by the exact use by Congress, in the competing provision 319, of the words “composed wholly and in chief value-of.” [376] Tbe context of each and both, paragraphs manifests a precise and deliberate use of these words which assigns to'the phrase “made of/’ as used in paragraph 262, the meaning made wholly of. We think the intent of Congress herein so unmistakable that any other construction would.be tantamount to judicial legislation. The necessary result follows that since “made of cotton and india rubber” in paragraph 262 implies made wholly of such, this merchandise, which is composed in a substantial degree of artificial silk (34.30 per cent), not a vegetable fiber, can not be held to be classifiable therewithin. Inasmuch, however, as imitation silk and india rubber are, expressly by the language of paragraph 319, constituted a material of chief value therein, and they amount to 60.69 per cent of these importations, the goods are “articles or fabrics composed wholly or in chief value of threads, filaments, or fibers of artificial or imitation silk and india rubber, by whatever name known and by whatever process made,” as provided for in paragraph 319, supra, and are properly classifiable thereunder for dutiable purposes. The judgment of the board as to the webbings should for these reasons be affirmed.