United States v. American Bead Co.

9 Ct. Cust. 193, 1919 WL 21397, 1919 CCPA LEXIS 43

• Court: Court of Customs and Patent Appeals
• Decided: June 3, 1919
• Docket: No. 1962
• Status: Published

Opinions

Montgomery, Presiding Judge,

delivered the opinion of the court:

The'merchandise involved in this case consists of imitation flowers, leaves, and stems. The appraiser, in answer to the protest, described the goods as follows.

The merchandise in question consists of artificial flowers, the stems of which are composed of a metal wire, around which are wound colored silk threads, the petals of the flowers being composed of various colored beads, which are securely strimg on wire. The design of the article is such that in size, form, color, and outline they resemble natural flowers.

The goods were assessed for duty under paragraph 347 of the -act of 1913, which provides, inter .alia, for “artificial or ornamental feathers suitable for use as millinery ornaments, artificial and ornamental fruits, grains, leaves, flowers, and stems or parts thereof, of whatever material composed.”

The board held the merchandise dutiable under paragraph 333, which provides for “curtains, and other articles not embroidered nor appliquéd and not specially provided for in this section, composed wholly or in chief value of beads or spangles made of glass or paste, gelatin, metal, or other material, 50 per centum ad valorem.”

In deciding the case the board referred to the merchandise in the following terms:

The exhibits representing the merchandise consist of small heads of various colors strung on wire, forming crude representations of leaves and stems, and an inspection thereof convinces us that they bear very little resemblance to any natural leaves or stems.

An examination of the exhibits fails to convince ns that the return of the appraiser is in any way inaccurate; It is obvious from a reading of paragraph 347 that an exact imitation is not essential to bring the articles aimed at within its terms. The fact that artificial flowers and so forth are made dutiable, of whatever materials composed, demonstrates that an imitation need not be so exact as to deceive the eye. This would be impossible when a variety of materials is open to use. The association of the words with "millinery ornaments” would indicate also that an imitation of leaves and flowers which rendered an article suitable for such ornamental use is within the provision. So long as the article is in size, shape, and color like leaves and flowers and designed for ornamental use' it falls within the statute. To exact more would result in a contest in every case over the exactitude of the imitation.

The case of Dieckerhoff v. United States (4 Ct. Cust. Appls., 384; T. D. 33796), cited by importers’ counsel, presented a very different question. In that case artificial fruit was in issue. The article was composed of beeswax, was diminutive in size, and was distinctly an article of utility, the first use of which impaired its form. It was more nearly analogous to a molded ice, modeled in the form of fruit to be served and eaten, than an ornament for hats or bonnets. We quote briefly from the opinion in that case, describing the articles:

They are sold by the importers to notion, department, and small dry-goods stores, by whom in turn they are retailed as sewing articles. They are not used as ornamental or decorative objects, nor in millinery, but are simply attractive forms into which ’ sewing wax is cast for convenient sale and use. This use necessarily destroys the shape of the article and finally consumes the material itself.

After further discussion it was said:

In the present case the general disparity of size between'the wax forms and natural fruits, and the consequent lack of substantial resemblance between the two, lead the court to b elieve that the protested articles are not “ artificial fruits ’ ’ within the meaning of paragraph 438.

So, in Morimura v. United States (8 Ct. Cust. Appls., 111; T. D. 37223), apples and pears of the size of the natural fruit were held to fall within the paragraph. In that case the imitation was more accurate than in this, but the distinction is one of degree in resemblance to the natural object only.

We are, on the whole case, unable to agree that the classification of the collector and the report of the appraiser have been overcome by a mere inspection of the article. On the contrary, we think the resemblance to natural flowers is sufficiently striking to require the classification adopted by the collector if the provision for beaded articles be not the more specific.

The case turned below upon this latter question, the board ruling that under the decisions in Loewenthal v. United States (6 Ct. Cust. ; T. D. 35464) and American Bead Co. v. United States (7 Ct. Cust. Appls., 18; T. D. 36258) the bead paragraph was controlling. It is necessary, therefore, to see just what was decided in these cases.

In Loewenthal v. United States the beaded articles consisted of tunics composed of lace nets, beaded, and motifs, garnitures, and gimps of beads with net foundation, the beads forming designs of various forms, the entirety being ready to be applied to garments. The contest was between paragraph 358 for “laces, * * * wearing apparel, * * * and all articles or fabrics, * * * appli-quéd, * * * and articles made in whole or in part of any of the foregoing fabrics or- articles; all of the foregoing of whatever yarns, threads, or filaments composed,” and paragraph 333 for “beads and spangles of all kinds.” Two questions were decided: First, whether the articles in question were appliquéd, as that term is used. This question was examined and on the authority of United States v. Hamburger Levine Co. (5 Ct. Cust. Appls., 217; T. D. 34382) it was held that the articles were not appliquéd within the terms of either of the two paragraphs in question.

The court then proceeded to consider the question of the relative specificity of the two named paragraphs, and after full discussion said:

Accepting the obvious purpose of Congress to rate beads and beaded articles at 35 per cent whenever in chief value of such, as expressed by its collocation, within paragraph 333, the beaded articles provisions of the amended act (1909), and confining paragraph 358 to goods in chief value of laces, nets, embroideries, trimmings, and 'similar high-class manufactures, adopts a differentiation clearly within the purpose of Congress and founded upon a clearly defined commercial distinction.

We are therefore driven to the interpretation adopted, that the articles and fabrics within paragraph 358 must be in chief value of threads, yarns, or filaments, of which these goods are not, blit, that being in chief value of beads, they fall for dutiable 'purposes within paragraph SSS.

In American Bead Co. v. United States, the question presented was as to whether beads of various material other than metal, some of wood, others gelatin or paste, china or colored glass were dutiable as jewelry, and it was said:

(They do'not, save one sample in an insignificant degree, imitate any of the precious or semiprecious stones. Including and comprising the great bulk are necklaces in imitation of jet. 'They are all intended to be worn on or about the person. * * *

The contest there arose between paragraph 333 for articles of beads and paragraph 356, known as the jewelry paragraph.

The question was again fully discussed, and it was held, citing the case of United States v. Hawaii & South Seas Curio Co. (T. D. 26778), that beads of the character involved in that case were not jewelry and did not fall within paragraph 356. It was said (p. 29):

Necklaces made of the precious metals or imitations thereof have been held by this court as jewelry, commonly so known. * * *

Likewise, necklaces in imitation of the precious stones.

But it was further said that “jet is not a precious or semiprecious stone, but a variety of mineral coal,” and that, accordingly, it has been held that jet articles are not commonly known as jewelry.

Referring to certain beaded articles made of amber beads it was said:

Inasmuch, however, as Congress in paragraph 357 has not classed amber as a precious or semiprecious stone or material for use in the manufacture of jewelry, and in paragraph 356 has expressly avoided its enumeration among the imitations of settings rated at 60 per cent, the purpose seems obvious not to have so rated for duty imitations of amber.

Reliance is also placed by the importer upon an expression used in the case of United States v. Gavin & Co. (7 Ct. Cust. Appls., 292; T. D. 36804), referring to Loewenthal v. United States, saying of this case:

This court, after reviewing all the paragraphs of the present tariff act in pari materia with an apposite paragraph 33, reached the conclusion that it was the purpose to make that paragraph exclusive, in so far as the express limitations therein permitted for beaded articles.

The real question which stood for decision was this, whether para" graph 333, providing for articles not embroidered nor appliqued, composed wholly or in chief value of beads or spangles, etc., should be construed as providing for articles in which one or the other — that is, beads or spangles — should of itself exceed all other material in the article. This construction was negatived, it being held that the phrase “beads or spangles” was used in the paragraph as a collective subject of legislation, embracing all articles composed of either or both of these elements. The language quoted was a statement of what was decided in the Loewenthal case, which we have discussed above, and could not have been designed to extend the doctrine of that case.

The statement quoted can not therefore be understood as excluding other paragraphs of the section from the same consideration as is accorded to paragraph 333, for so construed it would conflict with the statement contained in American Bead Co. v. United States, supra, that “beads of all kinds” as used in paragraph 333, did not include any of that class of beads constituting jewelry, commonly or commercially so known. It would also conflict with the two cases of United States v. Bartiromo (9 Ct. Cust. Appls., 183; T. D. 38003) and United States v. Battiloro et al. (9 Ct. Cust Appls., 180; T. D. 38002). -In each of these cases coral beads, unstrung, were held dutiable under paragraph 357 as “coral * * * cut but not set, and suitable for use in the manufacture of jewelry,” and not under paragraph 333.

In the present-case we have a paragraph in 347 that indicates very clearly a congressional intent to make it exclusive in the field of its application. An artificial flower is of necessity made up of some material which, presumptively is covered with greater or less specificity in some paragraph of the tariff act. If of silk or cotton or linen or jute it would be found provided for. In short, it is hardly conceivable that the paragraph can have operation at, all without invading some other paragraph. In such case a congressional intent to invade other paragraphs is inferred, and when such intent is manifest it becomes the duty of the court to attempt a comparison of the two paragraphs in order to ascertain which is the more specific. Neither is immune from such test. The one is no more sacred than the other.

This doctrine is not new. In Carter v. United States (6 Ct. Cust. Appls., 253; T. D. 35475) it is applied to the provision for Jacquard figured upholstery goods in the piece when in contest with nets and nettings. It was held that the former-was the more specific, and that it was intended to invade other paragraphs. Tbe chief ground for that decision was that the Congress had shown an intention to .classify these goods by use.

In the present case, artificial flowers are grouped with feathers Suitable for millinery ornaments and are ornamental, thus being capable of like use. It is not, however, a necessary inference from this that the Congress has shown an intent to classify these according to. use, but the purpose of making this classification all-comprising is equally manifest. The language is as strong as could well be conceived. “Artificial and ornamental flowers, of whatever material composed,” could not well be more inclusive.

In Smith v. United States (5 Ct. Cust. Appls., 40; T. D. 34008) it was said:

It is possible to use broad language to reach, the most exact specificity. Comprehensiveness may so completely hedge about a term as to make clear the legislative intention to include a particular article, and this beyond all peradventure.

So, in Knauth v. United States (1 Ct. Cust. Appls., 334; T. D. 31432), in construing the term “all smokers’ articles whatsoever:”

The intensified form of the expression used, together with the far-reaching effect of the qualifying words stated, manifests to our minds a purpose on the part of the legislature to reach out into all branches of trade and commerce and to gather within the dutiable provisions of this paragraph everything used chiefly by smokers, in that pursuit, and for that purpose, wherever else they may occur or within whatever other provisions of the tariff law the merchandise may be included.

What could make a designation of artificial and ornamental flowers more specific and more invasive of a competing provision than the words “of whatever material composed.” The effect of this phrase is to suspend the force of a particular material as a factor in determining the question of specificity, as whatever the material, paragraph 347 has provided, for certain specific articles composed of it.

If the phrase “of whatever material composed” may be likened to “by whatever name known” in relative comprehensiveness, it having been held that the latter amounted in effect to an eo nomine designation of articles of certain characteristics (see United States v. Snow’s United States Sample Express Co., 8 Ct. Cust. Appls., 351; T. D. 37611), it would follow that paragraph 347 would amount to an eo nomine designation of whatever material would be found in the completed artificial flower, and would attach the name of the material to the eo nomine designation of artificial flowers, giving the term the effect it would possess if reading “artificial flowers composed of glass beads.” When this is contrasted with articles made up of glass beads it would, as it seems to us, be clear that the eo nomine provision for artificial flowers would control over articles.

This view is well established by our decisions. Brody v. United States (2 Ct. Cust. Appls., 15; T. D. 31573) is very instructive. In that case there was a provision for articles of willow which was contrasted with a provision for baskets of wood, “willow” — defining the material — being a narrower term than “wood,” and “baskets,” being the eo nomine designation, hence more narrow than “articles.” The goods, though of willow, a kind of Wood, were held dutiable as baskets of wood.

See also Thomsen v. United States (2 Ct. Cust. Appls., 37; T. D. 31590). In that case “baskets of wood” was contrasted with “manufactures of chip.” The court said:-

The term “baskets,” being the name of the articles, seems clearly to be a more exact and specific designation of them than the term “manufactures.’’ This latter term in this application is one of general description only. The fact that the component material is more specifically described in the second paragraph does not conflict with this conclusion, for nevertheless the term baskets is the exact and specific name of the article itself. (Italics ours.)

So, in the recent case of United States v. Salfner (7 Ct. Cust. Appls., 371, 375; T. D. 36910), the contest was between “woven fabrics, in the piece or otherwise, of which silk is the component material of chief value,” and “women’s and children’s dress goods * . * * composed wholly or in part of wool.”

It was conceded that the goods in question were in fact women’s and children’s dress goods composed in part of wool. It was also conceded that they were woven fabrics composed in chief value of silk. The applicable paragraph as to each was restricted by the n. s. p. f. provision. It was said by Martin, Judge:

In comparing the two competing provisions in question we find that one is limited primarily to “dress goods, ” the other to “woven fabrics. ” It must be conceded that “dress goods” is a more narrow term than “woven fabrics, ” and is indeed a species thereof. On the other hand, the term “woven fabrics” in the present case is modified by the clause “composed in chief value of silk, ” which is more narrow and specific than the contrasting modifying clause “composed in part of wool.” Hartranft v. Meyer (135 U. S., 237). In such a case we think that the primary or eo nomine limitations embodied in the contrasting enumerations should control, and accordingly we hold'that “dress goods composed in part of wool” is a narrower and more specific description of the present merchandise than “woven fabrics, in the piece or otherwise, of which silk is the component material of chief value”—

citing among others the cases herein cited to this point.

For a case giving the force above accorded to paragraph 347 see T. D. 28710, opinion by General Appraiser Sharretts, in which paragraph 425 of the act of 1897, being the ancestor of paragraph 347, is held more specific than a provision for “articles * * * in part of * * * spangles made of * * * metal,” under paragraph 408 of the same act, which provided for—

Articles composed wholly or in part of beads or spangles made of glass or paste, gelatin, metal, or other material, but not composed in part of wool.

The decision of the Board of General Appraisers is reversed.