Smith & Co. v. United States

8 Ct. Cust. 256, 1918 WL 18147, 1918 CCPA LEXIS 6

• Court: Court of Customs and Patent Appeals
• Decided: February 8, 1918
• Docket: No. 1828
• Status: Published

Opinions

MONTGOMERY, Presiding Judge,

delivered tbe opinion of the court:

The merchandise consists of thin glass bottles having figures of sprays of leaves and fruits, which are molded into the glass and not added by a separate or additional process. The board held that they were dutiable under paragraph 84 of the tariff act of 1913, and in so doing determined that they were ornamented, within the meaning of said section.

Paragraph 84, so far as necessary to be quoted, reads as follows:

Glass bottles * * * composed wholly or in chief value of glass, ornamented or decorated in any manner, or cut, engraved, painted, decorated, ornamented, colored, stained, silvered, gilded, etched, sand blasted, frosted, or printed in any manner, or ground (except such grinding as is necessary for fitting stoppers or for purposes other than ornamentation), and all articles of every description, including bottles and bottle glassware, composed wholly or in chief value of glass blown either in a mold or otherwise; * * *.

The claim of the importers is that the bottles were "plain green or colored, molded or processed * * * glass bottles * * *” (par. 83).

.The question is whether, before a glass bottle can be brought within the terms of paragraph 84 as ornamented or decorated in any manner, it must appear that there has been a process of decoration after the bottle was molded. In other words, whether the decoration must be by a superadded process after the article itself is complete for use.

The board held that the question was ruled by United States v. Wakem (2 Ct. Cust. Appls., 411; T. D. 32170), and that the ornamentation, although produced in the process of molding the bottle, was sufficient to bring it within paragraph 84.

A case involving a question something like that here presented, but arising under a statute differing substantially from the present, was considered by the' board some years ago. The case arose under paragraph 435 of the act of 1897.

In T. D. 24581 the articles in question were imitation cameos and intaglios. The language of the paragraph construed was—

Imitation of diamonds or other precious stones, composed of glass or paste, not exceeding an inch in dimensions, not engraved, painted, or otherwise ornamented or decorated.

The board, in a very exhaustive opinion by De Vries, General Appraiser, held that as the testimony disclosed that "the associated words 'engraved’ and ‘painted’ preceding the words ‘or otherwise ornamented or decorated’ are used in a descriptive, ordinary sense, it is fairly within the principle of noscitur a sociis that the latter are used in the same sense,” and applying the rule of ejusdem generis held that the term “otherwise ornamented or decorated” should be construed to mean an ornamentation by a superadded process. It was said: •

The words here are “not engraved, painted, or otherwise ornamented or decorated.” The enumerated things or descriptions “ engraved ’ ’ and “painted’ ’ both imply a super-added process. The rule cited prescribes this qualification and -characteristic to the words “ornamented or decorated.”

After stating the doctrine of ejusdem generis it was further said:

It may be instructive to advert to paragraph 100 of the same act, where Congress, in speaking of china and earthenware, uses the language “or otherwise decorated or ornamented in any manner.” In obedience to the rule that effect must be given all words in a statute, the words “in any manner” must either be regarded as superfluous or there be assigned to the preceding language the limitation suggested, which is extended by the subsequent words “in any manner.” Then- absence in the paragraph Under consideration suggests the presence of legislative intent that the scope of the words “otherwise ornamented or decorated” he limited in accordance with the well-known and settled rule stated, which conduces to the conclusion that they apply s olely to superadded ornamentation or decoration.

So far from ruling the case in hand, this case strongly tends to support the contention of the Government that the broad language of paragraph 84 is sufficient to cover the imported merchandise.

We refer to this case at some length for the purpose of showing that the conclusion reached,in the opinion in that case that the term “ornamented or decorated” used in paragraph 435 of the act of 1897 implied effects produced upon cameos and intaglios by a superadded process and not to effects produced in molding them, was rested upon the rule of ejusdem generis. As indicating that such was the rationale of the opinion, it appears that the writer of the opinion was at pains to demonstrate that the Congress had in paragraph 100 of the same act used the terms “decorated and ornamented in any manner” iñ such a way as would involve and require an extended meaning to the words rather than the one adopted in the instant case. If it was intended to detract from this statement by the statement in the opinion referring to T. D. 15169, T. D. 15170, and T. D. 15171 as establishing that ornamentation could only consist of a superadded decoration, it- is with deference submitted that these oases were misinterpreted, and that such was not the ruling in the cases cited. It is true that the board in these cases, in three opinions all written by Lunt, General Appraiser, construed paragraph 100 of the act of 1890 and .held that certain white china ware, which had designs upon the surface raised or embossed with figures produced by molds, was plain white china. But it is important to know the grounds upon which this holding rested. In the first of these cases it was said:

It also appears from the evidence that the word or term “decorated” as applied to china and earthenware has been for many years a commercial term designating and confined to ware which has been painted, tinted, stained, enameled, printed, or gilded, but that the word “ornamented” never has been a trade term * * *.

It is difficult to formulate in words a clear and sharply drawn distinction between plain white ware and that which should properly be considered ornamented. Something depends upon the material of which it is composed. A white china or porcelain body may be etched and thus ornamented or decorated, although no colors are used, but the same process could not be used upon ware having a less vitreous body, which would be penetrated and discolored in the treatment or by subsequent use.

The chinaware under consideration in this case is entirely white. From the appearance of the samples no labor or skill was expended upon it after the ware or the several parts were molded. It shows no evidence of the use of stylus thereon, or that anything in the character of ornamentation was added to the body of the ware after the original molding thereof. As understood by importers, wholesale dealers, and manufacturers, this ware is plain white china, although the outlines or surfaces thereof are not perfectly smooth. The proper classification of ware embraced in paragraphs 100 and 101 of the tariff requires the exercise of an intelligent discrimination, based upon an examination of the particular ware and some knowledge of the manner-of its manufacture.

In defining the kind of ware in the second case the board said:

We find * * * that said chinaware consists of sauce boats with rustic handles, so-called shell pickle dishes, and cups, very slightly fluted and with rustic handles. All of this ware is white, and all the surface outlines thereof were formed in the mold. ’ This ware'is for purposes of utility and does not belong to the class of china known in trade as decorated china nor to the class known as art goods.

The variations in the surface of this ware are not such as are superimposed upon the ware after it is molded and before the final firing of the same, and in the opinion of the board are not of that character or degree which would be considered an ornamentation sufficient to remove the ware from classification as plain white china.

In the third case it was said:

This ware does not belong to the class which is ornamented with elaborate and beautiful figures, commonly known in trade and commerce as art ware and which is not generally intended for purposes of utility. On the contrary, the merchandise in question is known in trade and commerce as white graniteware, and is designed solely for use. It is pláin white, not painted, tinted, stained, enameled, printed, gilded, • or otherwise decorated, and we find that the fluting, figuring, or variations in general outlines are not sufficient in hind or degree to remove the goods from classification as plain white earthenware.

These cases fall far short of holding that an article of china may not be decorated or ornamented within the meaning of this provision in the original process of manufacture. In fact, we think the contrary is implied, and in so far as they assumed that the language of the statute of 1890 is subject .to be controlled by proof of commercial usage, were in conflict with the opinion of DeVries, General Appraiser, in T. D. 24581. His opinion in that case, after referring to the testimony of commercial usage, said:

Admitting that such usage exists, which seems to have been established, we do not think it controls in the interpretation of these words. The words used by Congress are clearly descriptive, relate solely to a process and not to a particular article, and are plain and unambiguous. ,

Citing and quoting from Newman v. Arthur (109 U. S., 132) and Koscherak v. United States (98 Fed., 596).

Tire opinions of Lunt, General Appraiser, do not deal with the question discussed as to the effect of the language of paragraph 100, and in so far as they conflict with Judge De Vries’s opinion, they were overruled by that.

It has been suggested that the term “ornamented” ex vi termini imports a superadded process after the article is manufactured and that this is established by lexicographers and also by the use given to the term in various legislative acts. I do not so read the definitions given by the lexicographers, nor do'I so construe the statutes.'

Quoting from Webster’s New International Dictionary:

Ornament.— * * * 2. That which is added to embellish or adorn; that which adds grace or beauty, an embellishment; a decoration; an adornment.

We do not construe this to mean that the addition to the utilitarian feature of the article must be made after the article is completed, and under this very definition in Webster an illustration is given which demonstrates that such is not the meaning. I quote again:

Ornament, as in architecture, is often distinguished as structural when it is an integral part of what it adorns; or as applied when executed on the surface of something structurally complete without it.

And the next definition:

2. Addition or inclusion of anything that beautifies; ornamentation; embellishment; decoration.

So, in the Standard Dictionary, the definition of ornament is—

1. A part or an addition that contributes to the beauty or elegance of a thing.

This clearly does not import that an ornamentation may not be by the original process of construction.

Now,- as to the statutes, we find in paragraph 84 of the act of 1894 'd provision for “china, porcelain, parían * * * crockery ware, * * * white, not changed by the addition of superadded ornamentation or decoration, 30 per centum.” And under the act of 1897 we find another instance where the Congress thought best to place a restricted meaning upon the word “ornamentation,” which it did in terms. Paragraph 95 of the act of 1897 provides for china and porcelain and then proceeds, “if plain white and without super-added ornamentation of any kind, 55 per centum ad valorem.”

Attention has been called to the expression in paragraph 358 of the present tariff act providing for “braids, loom woven, and orna-. mented in the process of weaving.” Here Congress was dealing with woven articles, and the use of the term “ornamented in the process of weaving” was a use of the term quite in consonance with the illustration given in Webster. If it be asked, Why add the words “in the process of weaving ” ? I assume it was for the purpose •of distinguishing between such ornamentation and superadded ornamentation, as by appliquéing.

In line with the dictum in Judge De Vries's opinion is the opinion of Fischer, General Appraiser, in T, D. 34888, in which, affirming the holding that sprinkler tops, the screw covers of which had embossed on -the tops thereof a design representing a basket of flowers, were decorated, within the meaning of a provision for decorated, colored, waxed, lacquered, enameled, lithographed, electroplated, or embossed in color, it was said:

It is not essential that a decoration should be the result of an added process, because many articles can be and are made ornamental and of a decorative character simultaneously with their production.

(Citing the case of United States v. Wakem, supra.)

It seems to me that a rule has been established by this court which should not be departed from. In United States v. Wakem, supra, we construed a paragraph which in all essential respects corresponds with the paragraph here. There the words construed were “all articles of every description composed wholly or in chief value of glass, * * * colored * * * , in any manner.”, The only.distinction between that merchandise and that we are now considering is that in the present, case we are considering glass bottles, composed wholly of glass, “ornamented or decorated in any manner.” The question in that case was whether articles composed o|, glass, colored in any manner, included articles which were colored in the process of manufacture. In the present 'case the question is whether glass bottles “composed wholly * * * of glass, ornamented or decorated in any manner,” includes bottles ornamented or decorated in the process of manufacture. We are unable to see room for distinction in the two cases. In that case we held that the coloring need not be imposed by superadded process in order to bring the article within the paragraph. It was said in the opinion:

We can not admit that “every one of the processes enumerated in the provision implies work done upon the glass articles after they have been given their form as such.” Such an interpretation would in effect limit the operation of paragraph 98 largely to articles made wholly of glass and would exclude from its provisions those articles in chief value of glass which, after they had taken on then- final form, could not in the nature of things be processed as therein described. That is to say, glass bottles, decanters, and vases, cut, engraved, painted, frosted, stained, .or etched after having taken on the form of their ultimate use, would be subject to the duty of 60 per cent ad valorem prescribed by the paragraph, but glass chandeliers composed of faceted glass shapes, necessarily cut before and not after they become a part of the article, artistic lamp shades made of bits of glass necessarily stained before they were put in place, fancy lanterns, the glass panels of which were necessarily engraved, etched, or frosted before they were framed, and all other forms or shapes made up chiefly of fitted sections of colored, painted, stained, printed, frosted, cut, engraved, etched, silvered, or gilded glass, and not otherwise specially provided for, would be dutiable as manufactures of glass or as manufactures of which glass is the component of chief value at 45 per cent ad valorem.

In our opinion neither the wording of the statute nor its legislative history justifies any such distinction or discrimination. In paragraph 98 Congress was not considering .articles which had been subjected to the treatment and processes of manufacture therein defined, but articles the glass of which had undergone the operations mentioned. Paragraphs 97 to 109 of the act deal with glass and have for their object the laying of a duty on glass in various forms and conditions. It would seem, therefore, that what interested Congress in passing paragraph 98 was the imposition of a certain duty not on cut, engraved, stained, painted, or colored articles but on articles of cut, engraved, stained, painted, or colored glass. '

The case contains a full review of the cases and reaches the conclusion stated. We have not been able to distinguish that case from the present. See also G. A. 6820 (T. D. 29305).

The decision of the board should be affirmed.