O. G. Hempstead & Son v. United States

• Decision Date: 16 December 1907
• Docket Number: 33 (1926).
• Citation: 158 F. 584
• Court: U.S. Court of Appeals — Third Circuit
• Parties: O. G. HEMPSTEAD & SON v. UNITED STATES.

158 F. 584

O. G. HEMPSTEAD & SON v. UNITED STATES.

No. 33 (1926).

United States Court of Appeals, Third Circuit.

December 16, 1907

Comstock & Washburn (Albert H. Washburn, of counsel), for importers.

Jasper Yeates Brinton (J. Whitaker Thompson, U.S. Atty., on the brief), Asst. U.S. Atty.

Before DALLAS, GRAY, and BUFFINGTON, Circuit Judges.

GRAY Circuit Judge.

This is an appeal from a decision of the Circuit Court of the United States for the Eastern District of Pennsylvania, affirming a decision of the Board of General Appraisers, as to the classification of certain merchandise under the revenue act of July 24, 1897. The merchandise in suit consisted of microscopic slides, with concavities in their centers for placing specimens for observation under a microscope. They were assessed for duty by the Collector and Board of Appraisers, at 60 per centum, under paragraph 100 of said act of July 24, 1897, c. 11, Sec. 1, Schedule B, 30 Stat. 157 (U.S. Comp. St. 1901, p. 1633), which provides as follows:

'Glass bottles, decanters or other vessels or articles of glass cut, engraved, painted, colored, stained, silvered, gilded etched, frosted, printed in any manner or otherwise ornamented, decorated, or ground (except such grinding as is necessary for fitting stoppers), and any articles of which such glass is the component material of chief value and porcelain, opal and other blown glassware; all the foregoing, filled or unfilled, and whether their contents be dutiable or free, sixty per centum ad valorem.'

The contention of the importers is, that they were dutiable at 45 per centum, under paragraph 112 of the same act of July 24, 1897, c. 11, Sec. 1, Schedule B, 30 Stat. 158 (U.S. Comp. St. 1901, p. 1635), as manufactures of glass not specially provided for in the act. Paragraph 112 provides as follows:

'Stained or painted glass windows, or parts thereof, and all mirrors, not exceeding in size one hundred and forty-four square inches, with or without frames or cases, and all glass or manufactures of glass or paste, or of which glass or paste is the component material of chief value, not specially provided for in this act, forty-five per centum ad valorem.'

It is argued for the appellants that the peculiar language of the last clause of paragraph 100, viz., 'all the foregoing, filled or unfilled, and whether their contents be dutiable or free, sixty per centum ad valorem,' excludes from the purview of said paragraph any articles of glass that are not containers,--that is, susceptible of being filled, and therefore are necessarily to be classified as a manufacture of glass not specially provided for in the act, upon which the duty is 45 per centum ad valorem.

Congress evidently intended, in the customs act of 1897, as in its predecessors, that the enumeration of dutiable articles should be as nearly exhaustive as possible, and paragraph 112, like all 'not otherwise provided' paragraphs of tariff acts, was only intended to make dutiable such inevitable omissions as must occur in such enumeration. An imported article should not, therefore, be classified under the 'not otherwise provided' clause, if it can, by fair construction, be embraced within a specific enumeration of dutiable articles. Care in this respect would prevent inequality and injustice in the incidence of these important taxes, that might otherwise occur. The Board of General Appraisers rested its decision upon the judgment of the Circuit Court of Appeals for the Second Circuit, in Stern v. U.S. 105 F. 937, 45 C.C.A. 141, that case involving, as they said, identically the same issue as that herein presented. It seems to be admitted by counsel for the appellants that this case is directly in point, and would consequently be controlling, if the reasoning upon which it is based had not been rejected and overruled in effect by the Supreme Court in the later case of United States v. Downing, 201 U.S. 354, 26 Sup.Ct. 476, 50 L.Ed. 786. That case involved the rate of duty under the act of 1897, upon certain sticks of carbon used for electric lighting. The Collector of Customs at the port of New York held them to be dutiable at 90 cents per 100 sticks, under paragraph 98 of the act of July 24, 1897, c. 11, Sec. 1, Schedule B, 30 Stat. 156 (U.S. Comp. St. 1901, p. 1633), which provides as follows:

'Gas retorts, three dollars each; lava tips for burners, ten cents per gross and fifteen per centum ad valorem; carbons for electric lighting, ninety cents per hundred; filter tubes, forty-five per centum ad valorem; porous carbon pots for electric batteries, without metallic connections, twenty per centum ad valorem.'

On protest and review, the Board of Appraisers affirmed the decision of the Collector. They held, however, that the sticks were not within the enumeration of paragraph 98, nor within that of paragraph 97, but were dutiable under paragraph 98 by virtue of the similitude clause (section 7) of the act of July 24 1897, c. 11, 30 Stat. 205 (U.S. Comp. St. 1901, p. 1693). The Circuit Court for the Southern District of New York, held that the articles were dutiable under the act of 1897, and reversed the ruling of the Board of Appraisers, and was affirmed in so holding by the Circuit Court of Appeals. Upon certiorari, the Supreme Court sustained the decision of the Board of General Appraisers, and reversed the Circuit Court of Appeals and the Circuit Court. It was contended by the importer that the articles imported were not 'carbons' either in the trade or popular sense, and do not become such until fit for use in lamps, and that the articles are correctly described and enumerated only in paragraph 97, as articles composed of carbon, not specially provided for. Paragraph 97 is as follows:

'Articles and wares composed wholly or in chief value of earthy or mineral substances, or carbon, not specially provided for in this act, if not decorated in any manner, thirty-five per centum ad valorem; if decorated, forty-five per centum ad valorem.'

The Supreme Court, in the course of its opinion, said that this 'contention encounters a serious difficulty. As was decided in Dingelstadt v. United States, 91 F. 112 33 C.C.A. 395, the paragraph covers articles which are susceptible of decoration, and not, as contended by respondent, articles decorated or not decorated, irrespective of their capability of being decorated. ' Counsel for appellants rely upon this language of the Supreme Court, as establishing a principle which, he contends, must control the case before us, and therefore, that in paragraph 100, the words 'all the foregoing, filled or unfilled,' confines the classification to glassware...