Kleeberg v. United States

72 F. 252, 1896 U.S. App. LEXIS 2555

• Court: U.S. Circuit Court for the District of Southern New York
• Decided: February 20, 1896
• Docket: No. 2,185
• Status: Published

Opinion

OOXE, District Judge

(after stating the facts). The testimony taken in lilis court establishes the following facts: The articles in question are made at Nottingham, England, on a lace machine and are woven into a wide web with a draw thread between each piece; when the web is removed from the machine, dressed and dyed, the draw1 thread is pulled out leaving the articles in controversy. They arc used as trimmings, and are known commercially as “insertings'’ or “insertions.” So far there is no dispute. There is a difference of opinion as to whether they are lace or not, but the testimony of those most competent to speak on the subject — importers and large dealers —is to the effect that the term “lace” has a well-known commercial meaning and that “inserting” is not lace. “Lace,” according to these witnesses, is an article having one scalloped edge and one straight edge; inserting has two straight edges and is thus commercially distinguished from lace. This designation differs from the dictionary definitions of lace, the latter clearly including the articles in controversy. But in tariff law the commercial meaning must take precedence.

Indeed, the proposition that these insertings are not laces was not seriously disputed at the argument, the principal contention being that they are “articles made wholly or in part of lace.” The difficulty with this theory is clearly stated by the board in an opinion filed about a fortnight after the decision of the case in hand. They say:

“We detect no force in the contention that insertings are articles ‘made wholly or in part of lace.’ It is not necessary to inquire what constitutes lace; that question has been passed upon by the courts. It is sufficient to observe that lace is a completed article or fabric made of threads, and. that ‘inserting’ is also a completed article made of threads. As insertings are made of threads they are not ‘articles made wholly or in part of lace,’ because lace is not thread but a fabric composed of thread.”

It is not perceived how the force of this reasoning can be avoided. Starting with the proposition that inserting is not lace, how can it be maintained that it is made of lace? How can a lace article be made without lace? If the mind be Once clearly imbued with the idea that in tariff nomenclature “inserting” and “lace” are two totally distinct fabrics, it will follow as a necessary conclusion that lace articles can no more be made of insertings than of burlaps. The fact that lace would have been produced had the process of manufacture stopped at an earlier stage is not material. It did not stop there; it continued until inserting was produced. In order to make lace articles one must have lace to start with.

The decision of the board of general appraisers is reversed.