Baruch v. United States

172 F. 342 | 2d Cir. | 1909

NOYES, Circuit Judge

(after stating the facts as above). The merchandise in question consists of narrow woven strips bearing “featherstitch” or “herringbone” ornamentation. Their practical use is to cover seams. They are inexpensive, and are largely used in making infants’ clothing and underwear. The featherstitch ornamentation improves the appearance of the garment, and is added for that purpose. But the primary purpose of the article is one of utility.

This article has borne various names, such as “seam binding,” “featherstitch binding,” “featherstitch tape,” etc.; but the name by which it has usually been called is “featherstitch braid.” Indeed, while the article is not braided, but woven, we should have little difficulty in adopting the conclusion of the Circuit Court and of the Board of Appraisers that prior to 1897 it was generally commercially designated a» “featherstitch braid.” But this is not a case in which the finding of a commercial designation carries us far. The question is, not whether the articles are braids, but whether tiiey are braids not else-w here specially provided for in the act. Manifestly commercial designation can have no bearing upon the latter inquiry. It cannot be said that the phrase “braids not otherwise specially provided for” had any commercial meaning- — different from the common únderstanding — including this merchandise. The articles may be called “featherstitch braids”; but, if some braids are bindings, it is not inconsistent with tlie commercial designation to assess them under ihe binding paragraph.

Had this question arisen under the tariff acts of 1890 or 1894, the situation would be entirely different. As we have seen, the word “braid” was used in those acts without words of limitation or qualification. If in a case under either of those acts it bad been shown that an article was commercially known as a “braid,” it would have necessarily brought it within the statute. But an article is not necessarily brought within paragraph 339 by showing that it is a braid. It may be a braid without question — may have been made upon a braiding machine; but, if it is more specially provided for elsewhere, it is not included. Accepting the commercial designation of these articles as featherstitch braids, we only reach the conclusion that they should be classified under paragraph 339 if they are not more specifically pro - vided for elsewhere.

How, the following definition of the word “binding” appears in the Standard Dictionary:

"A la-aii! or strip folded and sewed on the edge of any fabric, or sewed over tñe place where two parts are joined, so as to protect and secure the parts covered by it.”

It thus appears that a binding may be a braid used or adapted to be used for a particular useful purpose. Many kinds of braid are not adapted to this use. They are employed for ornamental purposes solely. Braids of this character should be classified under paragraph 339. And, as we have seen, this classification would be especially appropriate, as that paragraph and those corresponding to it in the earlier acts have always applied particularly to articles of ornamentation. But these featherstitch braids, being used for the purpose of binding seams, are, in our opinion, the kind of braids properly called bindings. And we think that it may fairly be assumed that, when Congress inserted the word “bindings” in the “notions” paragraph and transferred the word “braid” to the “trimmings” paragraph with words of qualification, it intended to embrace in the latter paragraph only such braids as were not bindings. If the articles are bindings, as well as braids, the provision in the “notions” paragraph is the more specific. Bindings are embraced without the words of restriction or qualification. These articles as bindings are necessarily included, and they are specially provided for elsewhere than in paragraph 339.

This discussion of the case upon principle leads us to the conclusion that the merchandise should have been assessed for duty as bindings under paragraph 320; and we reach no different result from an examination of other cases, although the question of the classification of this merchandise has been before the courts several times and conflicting decisions have been rendered. In the case of In re Dieckerhoff (C. C.) 54 Fed. 161, it was held that these articles were dutiable as cotton braids under the section of the act of 1890 first quoted, and not as cotton trimmings under the second section quoted. This decision, however, has no special bearing upon the question now under consideration because, as we have seen, bindings were not provided for in the act of 1890. Featherstitch braids may well not be trimmings within the ornamental article paragraph of the earlier act and yet be bindings within the useful article paragraph of the act of 1897.

The government, however, insists that in view of the Dieckerhoff decision it must be presumed that, when Congress used the word “braids” in the act of 1897, it intended that it should apply to feather-stitch braids. As just pointed out, however, all that that case held was that the articles were braids and not trimmings. It did not hold that they were not bindings. And Congress used the word “braid” only with words of qualification. We see no force in the contention. Aside from the Dieckerhoff decision under the act of 1890 the question here presented has been decided both ways by the Circuit Court. In Steinhart v. United States (C. C.) 121 Fed. 442, it was held that the articles, if braids, were bindings also, and therefore dutiable under paragraph 320. This decision was followed in The Hague Case which does not appear in the Federal Reporter.¹ In the case of Von Baur v. United States (C. C.) 141 Fed. 439, the question was again, presented and decided the other way. The opinion of the board holding that the articles were braids under paragraph 339 was affirmed without opinion by the Circuit Court. We find the reasoning in the Steinhart decision persuasive, and, for reasons already stated, fail to find that the additional evidence requires any different conclusion.

The decision of the Circuit Court is reversed.

1 No opinion filed.