United States v. Bernard Citroen

• Decision Date: 19 February 1912
• Docket Number: No. 30,30
• Citation: 32 S.Ct. 259,56 L.Ed. 486,223 U.S. 407
• Parties: UNITED STATES, Petitioner, v. BERNARD CITROEN
• Court: U.S. Supreme Court

223 U.S. 407

32 S.Ct. 259

56 L.Ed. 486

UNITED STATES, Petitioner,

v BERNARD CITROEN.

No. 30.

Argued November 1, 1911.

Decided February 19, 1912.

Assistant to the Attorney General Fowler for petitioner.

[Argument of Counsel from pages 408-410 intentionally omitted] Messrs. W. Wickham Smith and John K. Maxwell for respondent.

[Argument of Counsel from pages 410-413 intentionally omitted] Mr. Justice Hughes delivered the opinion of the court:

Bernard Citroen, on June 11, 1906, imported into the United States thirty-seven drilled pearls,—unset and unstrung,—divided into five lots, separately inclosed. The collector classified them by similitude 'as pearls set or strung, or jewelry,' dutiable at 60 per cent ad valorem under paragraph 434 of the tariff act of 1897. 30 Stat. at L. 151, p. 192, chap. 11, U. S. Comp. Stat. 1901, pp. 1626, 1676. The board of general appraisers sustained the importer's protest, holding the pearls to be dutiable by similitude at 10 per cent under paragraph 436. The circuit court, on additional testimony, reversed this ruling and affirmed that of the collector, and this decision was, in turn, reversed by the circuit court of appeals, which held that the board was right. 92 C. C. A. 365, 166 Fed. 693. The case comes here on certiorari.

The paragraphs of the act of 1897 (30 Stat. at L. p. 192, chap. 11, U. S. Comp. Stat. 1901, p. 1676) which are in question read as follows:

'434. Articles commonly known as jewelry, and parts thereof, finished or unfinished, not specially provided for in this act, including precious stones set, pearls set or strung, and cameos in frames, 60 per centum ad valorem.'

'436. Pearls in their natural state, not strung or set, 10 per centum ad valorem.'

The pearls had been purchased by the importer's brother, and had been offered for sale, collectively and in lots, in Paris, London, and Berlin; and to show that the collection was a desirable one for a necklace, they had been strung from time to time on a silk cord. It appeared that Mrs. Leeds, the present owner, had seen the pearls in Paris, both loose and on a string. As she testified, they were brought to her hotel 'both on the string and off the string; it was strung up at odd times, then it was taken apart and other pearls were put in and others taken out, so it was strung several times.' She was permitted to wear the pearls as a necklace; and finally bought them, it being agreed that they should be delivered to her in this country. They were so delivered in the condition in which they were imported, without string or clasp, and to these the purchaser subsequently added six pearls and formed the necklace she desired.

With respect to the character of the imported collection, the board of general appraisers found: 'Pearls of greater dimensions than the average are comparatively rare; hence it frequently requires serveral years' search in order to secure a sufficient number to form a necklace, all accurately matched in the essential features of size, color, and luster. Such a collection thus assembled would, no doubt, command a higher price than the aggreagte value of the separate pearls. On the other hand, a sufficient number of pearls, although of large size, required to form a necklace, matched as to size, but not otherwise, except a mere regard for comparative color, could be assembled within a short time and at a price based upon the cost of each separate pearl. In order to dispose of thirty or more pearls to one purchaser, such a collection would usually be sold at a less price than the aggregate would amount to were each pearl sold separately. The evidence shows and we find that the pearls in question belong to the latter, and not to the first, class.' T. D. 28,246; G. A. 6617. And as to these facts there is nothing in the evidence introduced in the circuit court which requires a different conclusion.

The questions presented are (1) whether the pearls fall directly within the description of the paragraph (434) relating to jewelry, and (2), if not, whether they are brought within this paragraph, through similitude, by virtue of § 7. 30 Stat. at L. 205, chap. 11, U. S. Comp. Stat. 1901, p. 1693.

First. The rule is well established that 'in order to produce uniformity in the imposition of duties, the dutiable classification of articles imported must be ascertained by an examination of the imported article itself, in the condition in which it is imported.' Worthington v. Robbins, 139 U. S. 337, 341, 35 L. ed. 181, 182, 11 Sup. Ct. Rep. 581; Dwight v. Merritt, 140 U. S. 213, 219, 35 L. ed. 450, 452, 11 Sup. Ct. Rep. 768; United States v. Schoverling, 146 U. S. 76, 82, 36 L. ed. 893, 895, 13 Sup. Ct. Rep. 24; United States v. Irwin (C. C. A. 2d C.) 24 C. C. A. 349, 45 U. S. App. 746, 78 Fed. 799, 802. This, of course, does not mean that a prescribed rate of duty can be escapted by resort to disguise or artifice. When it is found that the article imported is in fact the article described in a particular paragraph of the tariff act, an effort to make it appear otherwise is simply a fraud on the revenue, and cannot be permitted to succeed. Falk v. Robertson, 137 U. S. 225, 232, 34 L. ed. 645, 647, 11 Sup. Ct. Rep. 41. But when the article imported is not the article described as dutiable at a specified rate, it does not become dutiable under the description because it has been manufactured or prepared for the express purpose of being imported at a lower rate. Merritt v. Welsh, 104 U. S. 694, 704, 26. L. ed. 896, 899; Seeberger v. Farwell, 139 U. S. 608, 611, 35 L. ed. 297, 298, 11 Sup. Ct. Rep. 650. 'So long as no deception is practised, so long as the goods are truly invoiced and freely and honestly exposed to the officers of customs for their examination, no fraud is committed, no penalty is incurred.' Merritt v. Welsh, supra. The inquiry must be—Does the article, as imported, fall within the description sought to be applied?

In the paragraph as to jewelry (434) Congress expressly defined what pearls were to be included. The paragraph reads, 'including . . . pearls set or strung.' It does not say pearls that can be strung, or that are assorted or matched so as to be suitable for a necklace, but pearls 'set or strung.' We are not concerned with the reason for the distinction; it is enough that Congress made it. Had these pearls never been strung before importation, no one would be heard to argue that they fell directly within the description of paragraph 434 because they could be strung, or had been collected for the purpose of stringing or of being worn as a necklace. Loose pearls—however valuable the collection—however carefully matched or desirable for a necklace are not 'pearls set or strung.'

Nor can it be said that pearls, imported unstrung, are brought within the description of paragraph 434 because, at some time, or from time to time, previous to importation, they have been put on a string temporarily for purposes of display. The paragraph does not use a generic definition which could be deemed to define pearls previously strung though imported unstrung, but refers—in terms which shelter no ambiguity—to their condition when imported. It is not a case of parts of a described article, separately packed to avoid the specified duty on the article as a whole. United States v. Schoverling, 146 U. S. 76, 82, 36 L. ed. 893, 895, 13 Sup. Ct. Rep. 24; Isaacs v. Jonas, 148 U. S. 648, 37 L. ed. 596, 13 Sup. Ct. Rep. 677; United States v. Irwin (C. C. A. 2d C.) 24 C. C. A. 349, 45 U. S. App. 746, 78 Fed. 799, 802. For here, the imported pearls, whether regarded separately or taken as a collection, are not within the description. It is idle to comment on the relative value of a string to hold the pearls, for this is immaterial. The statute has furnished the test, and we are not at liberty to make another.

Second. Although the pearls do not fall directly within paragraph 434, the question remains whether they are brought within it by similitude. The similitude clause (§ 7) applies to articles not enumerated in the tariff act, and hence it governs the rate in this case only if it be found that the pearls are excluded from the description of paragraph 436, which enumerates 'pearls in their natural state, not strung or set.' May it fairly be said that in these two classes of pearls—those 'set or strung' and those 'in their natural state, not strung or set'—Congress intended to describe all pearls, or is there a sort of pearls, for example, those drilled and matched so as to be suitable for a necklace, which must be said to have been left unenumerated?

In the customs act of 1816 (3 Stat. at L. 310, chap. 107), a duty of 7 1/ 2 per cent ad valorem was laid on 'precious stones and pearls of all kinds, set or not set.' The act of 1842 (5 Stat. at L. chap. 270) made the duty 7 per cent 'on gems, pearls, or precious stones.' That of 1846 (9 Stat. at L. 45, 48, chap. 74) fixed the rate at 30 per cent for 'diamonds, gems, pearls, rubies, and other precious stones, and imitations of precious stones, when set in gold, silver, or other metal,' and at 10 per cent on 'diamonds, gems, pearls, rubies, and other precious stones, and imitations thereof, when not set.' In 1857 (11 Stat. at L. 193, chap. 98), and in 1861 (12 Stat. at L. 190, chap. 68), the same distinction was maintained.

In the Revised Statutes (§ 2504, p. 480) we find the following: 'Precious stones and jewelry.—Diamonds, cameos, mosaics, gems, pearls, rubies, and other precious stones, when not set: 10 per centum ad valorem; when set in gold, silver, or other metal, or on imitations thereof, and all other jewelry: 25 per centum ad valorem.' In 1883 (22 Stat. at L. 513, 514, chap. 121) the rate of duty was made 25 per cent for 'jewelry of all kinds' and 10 per cent for 'precious stones of all kinds.' In 1890 (26 Stat. at L. 600, 601, chap. 1244) the jewelry paragraph (452), which fixed the rate at 50 per cent, embraced all articles, not elsewhere...