Carter, Webster & Co. v. United States

• Decision Date: 06 February 1906
• Docket Number: 608.
• Citation: 143 F. 256
• Parties: CARTER, WEBSTER & CO. v. UNITED STATES.
• Court: U.S. Court of Appeals — Fourth Circuit

143 F. 256

CARTER, WEBSTER & CO. v. UNITED STATES.

No. 608.

United States Court of Appeals, Fourth Circuit.

February 6, 1906

This was an appeal by the importers from a decision of the Circuit Court of the United States for the District of Maryland sustaining the decision of the Board of United States General Appraisers as to the proper duties collectible upon certain merchandise imported by them per vessel Karlsruhe, January 5 1901, and subject to duty under the provisions of 'An act of Congress to provide revenue for the government, and to encourage the industries of the United States,' approved and which took effect July 24, 1897. The importation which was the subject of the protest and the subsequent decision of the Board of General Appraisers, and of the Circuit Court for the District of Maryland, is thus described in Exhibit D 'Certain hose and half-hose of cotton in open work or lace effects, and having embroidered upon them dots or other designs in colored silk thread. ' The controversy between the importers and the government was as to whether the importation was dutiable under the provisions of paragraph 318, Act July 24, 1897, c. 11, 30 Stat. 179 (U.S. Comp. St. 1901, p. 1660), as is contended by the former, or under those of the proviso to paragraph 339, 30 Stat. 181 (U.S. Comp. St. 1901, p. 1662), as is contended by the latter.

Those paragraphs, in so far as they are applicable or important to be considered, read as follows:

'318. Stockings, hose and half-hose, selvedged, fashioned narrowed, or shaped wholly or in part by knitting machines or frames, or knit by hand, including such as are commercially known as seamless stockings, hose and half-hose, and clocked stockings, hose or half-hose, all of the above composed of cotton or other vegetable fiber, finished or unfinished. * * * '

'339. * * * Embroideries, and all trimmings, including braids, edgings, insertings, flouncings, galloons, gorings and bands; wearing apparel, handkerchiefs, and other articles or fabrics embroidered in any manner by hand or machinery, whether with a letter, monogram, or otherwise; * * * all of the foregoing composed wholly or in chief value of flax, cotton or other vegetable fiber, and not elsewhere specially provided for in this Act, whether composed in part of india rubber or otherwise, sixty per centum ad valorem: Provided, that no wearing apparel or other textile fabric, when embroidered by hand or machinery shall pay duty at a less rate than imposed in any schedule in this Act upon any of the embroideries of the materials of which such embroidery is composed. ' (Italics ours.)

Under paragraph 318 a specific duty is levied upon each dozen pairs imported, the duty varying with the price per dozen pairs, and in addition thereto, an ad valorem duty is imposed. Upon some of the grades of half hose, the provisions of paragraph 318 would impose a duty in excess of the 60 per cent. ad valorem duty levied by the collector on this importation, but it is admitted that in the case at bar the duty provided by paragraph 318 is less than 60 per cent. ad valorem.

The assignments of error relied upon by the appellants are as follows: 'First. In that the said court held that the merchandise in suit was dutiable at 60 per cent. ad valorem under paragraph 339 of the tariff act of July 24, 1897. Second. In that the said court held that said merchandise was not dutiable under paragraph 318 of said tariff act. Third. In that the said court held that said merchandise was not specifically provided for in paragraph 318 of said tariff act. Fourth. In that the said court held that said merchandise was more specifically or aptly described in paragraph 339 of said tariff act than in paragraph 318 of said act. Fifth. In that the said court did not hold that said merchandise was classifiable and dutiable, either directly, or by similitude, at the appropriate rate under paragraph 318 of said tariff act, according to value per dozen pairs. Sixth. In that the said court did not hold that said merchandise was classifiable and dutiable as claimed by the importers either directly, or by similitude, at 30 per cent. ad valorem under paragraph 317 of said tariff act. Seventh. In that the said court affirmed the decision of the Board of General Appraisers. Eighth. In that the said court did not reverse the decision of the Board of General Appraisers, and sustain the protests.'

J. Stuart Tompkins (Hatch, Keener & Clute, on the brief), for importers.

John C. Rose, U.S. Atty.

Before PRITCHARD, Circuit Judge, and WADDILL and KELLER, District Judges.

KELLER District Judge (after making the foregoing statement).

This case depends upon the proper construction and application of the proviso contained in paragraph 339 of the tariff act of July 24, 1897, and it was admitted in argument that, if that proviso was applicable to other schedules in the act than those contained in paragraph 339 itself, the appellants could not win this case; but it was strenuously contended that the operation of this proviso was limited entirely to the things mentioned in that paragraph. We will hereinafter discuss the purpose and effect of this proviso.

The appellants contend with force and effect that the commercial classification in paragraph 318 (and also 317) is more apt, specific, and definite, as applied to the articles embraced in this importation, than that found in the body of paragraph 339, and hence that the provisions of paragraph 339 cannot provide the duty to be imposed. This, we think, may at once be conceded, and, as the government contends that paragraph 318 is applicable to half hose embroidered, whenever the duties imposed by that paragraph exceed 60 per cent. ad valorem, it would be very inconsistent to hold that paragraph 318 specifically describes embroidered half hose of one cost value, and does not so describe the same article having another cost price. We have no hesitancy, then, in holding that the provisions of the body of paragraph 339, eo nomine, do not apply to this importation, and, in so far as the opinion of the district judge holds that they do so apply, his opinion is disapproved for the reasons hereinbefore given. Were paragraph 339 denuded of its proviso, we would, we think, be bound to hold that this importation would be dutiable under the provisions of paragraph 318.

This brings us to consider the proper interpretation and effect of the last clause embodied in paragraph 339, which reads as follows:

'Provided, that no wearing apparel or other article or textile fabric, when embroidered by hand or machinery shall pay duty at a less rate than that imposed in any schedule of this act upon any of the embroideries of the materials of which such embroidery is composed.'

It is familiar doctrine that a proviso is to be strictly construed and that it should be confined to what precedes...