Wiebusch & Hilger. Ltd. v. United States

LAOOMBE, Circuit Judge. The two paragraphs in question are as follows: “334. Brown and bleached linens, ducks, canvas, paddings, cot-bottoms, diapers, crash, huckabacks, handkerchiefs, lawns, or other manufactures of flax, jute, or hemp, or of which flax, jute, or hemp shall be the component material of chief value, not specially enumerated or provided for in this act, thirly-five per centum ad valorem.” “336. Max or linen thread, twine, and pack thread, and all manufactures of flax, or of which flax shall he the component material of chief value, not [452] specially enumerated or provided for in this act, forty per centum ad va* lo-rem,” The- tariff act of 1883 provided that, if two or more rates of duty are applicable to any imported article, it shall be classified for duty under the highest of such rates. Each paragraph above quoted contains a provision for “manufactures of which- flax shall be the component material of chief value, not specially enumerated or provided for,” and there is no more specific enumeration -or designation of these measuring tapes contained in the act. It was therefore held in the circuit court, upon the authority of Dieckerhoff v. Robertson, 40 Fed. 568, that both rates of duty were applicable, and that the question as to which rate should prevail must be settled by the provision as to highest rate of duty above referred to. Dieekerhoff v. Robertson (which was decided by the writer of this opinion) is undoubtedly authority for that proposition, — the articles in that case being measuring tapes of flax, but not mounted as these are; but it is not controlling authority in this court, being a decision of the circuit court upon a jury trial which was never reviewed. A more careful consideration of the question leads this court, upon consultation, to a different conclusion. Past experience has shown, as might well be expected, that in statutes as long, detailed, comprehensive, and intricate as are the tariff acts, there will be found, not only awkward and obscure sentences, but also errors, inconsistencies, contradictions, and duplications. Nevertheless, it is hardly to be expected that in two paragraphs, standing almost in juxtaposition, different rates of duty should, by the use of precisely the same descriptive phrase in each paragraph, be made applicable to the same articles. If it be possible, under well-settled canons of interpretation, to construe the phrase, “manufactures of which flax shall be the component material of chief value,” so as to cover different articles, when used in the 40 per cent, paragraph, from those which the same phrase covers when used in the 35 per cent, paragraph, this should be done. Each paragraph, it will be observed, contains an enumeration of articles denominafively named, and between the two groups thus separately enumerated there is an easily recognizable distinction. The “linens, ducks, canvas, paddings, cot-bottoms, diapers, crash, huckabacks, handkerchief's, and lawns” are all woven with warp and filling. They are all articles capable of being measured by the square yard, and sometimes, in former tariff acts, were subjected to a duty per square yard. The “thread, twine, and pack thread,” on the contrary, are all spun and twisted, but not woven. They are not capable of measurement for a square-yard duty, and have never been thus assessed. This separation of manufactures of flax into groups of woven goods and of spun and twisted goods is not a novel arrangement. It is found in the act of March 2, 1861, § 14; in the act of June 30, 1864, § 7; and in Rev. St. § 2504, p. 462. And in these earlier acts, after the denominative enumeration, alike in the “woven” group and in the “spun and twisted” group, appears the same general description, “other manufactures of which flax shall be the component of chief value.” It is reasonable to infer that congress meant in each case to cover “other manufactures” of like character to those denominafively named in the specific enmneration. [453] “Nearly fifty years ago it was stated by Mr. Justice Story (Adams v. Bancroft. 3 Sumn. 384, 386, Fed. Cas. No. 44) that ‘one of the best-settled rules of interpretation of laws of this sort is that the articles grouped together are to be deemed to be oí a kindred nature and of kindred materials, unless there is something in (lie context which repels that inference. “Noscitur a sociis"’ is a well-founded maxim, applicable to revenue as well as to penal laws.’ The rule was stated in different language in Butterfield v. Arthur, 16 Blatchf. 216, Fed. Cas. No. 2,249 as follows: ‘When a general descriptive term is employed in a statute in connection with words of particular description, the meaning of the general term is to be ascertained by a reference to the words of particular description.’ This rule of construction has been judicially declared so frequently and so consistently that it is as much incorporated into a revenue law as (hough it were expressly embodied in it.” U. S. v. Sixty-Five Terra-Cotta Vases, 18 Fed. 508, 510. In Manufacturing Co. v. Worthington, 132 U. S. 654, 10 Sup. Ct. 180, the supreme court held that certain show cards, consisting of thin sheet iron, on which the name of the person or of tlie article advertised, and some picture or ornament, were printed by lithographic process, “were not ‘printed matter,’ within the meaning of the clause relied on by the plaintiff, because those words, as there used, applied only to articles ejusdem generis with books and pamphlets, which iron show cards were not.” The paragraph referred to in .that case reads, “Books, ¡pamphlets, bound or unbound, and all printed matter, not specially enumerated or provided for, etc.” In opposition to the application of such a rule of construction in the case at bar, two authorities are cited. Arthur's Ex’rs v. Butterfield. 125 U. S. 70, 8 Sup. Ct. 714, and Ingersoll v. Magone, 4 C. C. A. 150, 53 Fed. 1008. In the first of these the paragraph construed read as follows: “On hair cloth of the description known as -hair-sealing, eighteen inches wide or over, forty cents per square yard; less than eighteen inches wide, thirty cents per square yard. On hail- cloth known as crinoline cloth, and on all other manufactures of hair not otherwise provided for. -thirty per centum ad valorem.” The supreme court held that the phrase,, “all oilier manufactures of hair not otherwise provided for,” should not be restricted to other manufactures like those ennmeraled in the same section, viz. crinoline doth or hair-seating. In the tariff act then under discussion, however, there was no other provision for “manufactures of hair”; and consequently there was no apparent necessity for a construction which would avoid inconsistencies, and thus find in the act, considered as a whohy a harmonious tariff. In the opinion of this court in Dodge v. U. S. (handed down at this session) 84 Fed. 449, will be found a statement of the reasons for restricting our former opinion in Inger-soll v. Magone to the facts then before the court, and which are not found in the case at bar. The appellant’s goods, therefore, being woven with warp and filling, and not spun or twisted, are dutiable under paragraph. 334, and not under paragraph 336. The decision of the circuit court is reversed.