Bush & Co. v. United States

10 Ct. Cust. 161 | C.C.P.A. | 1920

De Vries, Judge,

delivered tbe opinion of the court:

TLe appraiser at the port of Seattle reported to the collector thereat, that the importations covered by this appeal were of "bambo pipe stems, 5 inches in length, one end cut off square just back of a joint, thus forming a mouthpiece, and the other end tapered to fit into the pipe.” The collector so reported to the board. The case was submitted upon the samples and the appraiser’s report.

The protestants alleged that the merchandise was "Bamboo pipe stems.” The board affirmed the decision of the collector. Importers appeal.

The assessment was made upon the theory, the board held and the Government contends, that the articles are properly classifiable for duty as "smokers’ articles” under paragraph 381 of the tariff act of 1913, reading:

381. Pipes and smokers’ articles: Common tobacco pipes and pipe bowls made-wholly of clay, 25 per centum ad valorem; other pipes and pipe bowls of whatever material composed, and all smokers’ articles whatsoever, not specially provided for in this section, including cigarette books, cigarette-book covers, pouches for smoking or chewing tobacco, and cigarette paper in all forms, except cork paper, 50 per centum ad valorem; meerschaum, crude or unmanufactured, 20 per centum ad valorem.

The importers, appellants here, contend the articles are properly classifiable either, as “bamboo” and entitled to free entry under paragraph 648 of said act, reading: •

648. Woods: Cedar, including Spanish cedar, lignum-vitse, lancewood, ebony, box, granadilla, mahogany, rosewood, satinwood, and all forms of cabinet woods, in the log, rough, or hewn only, and red cedar (Juniperus virginiana) timber, hewn, sided, squared, or round; sticks of partridge, hair wood, pimento, orange, myrtle, bamboo, rattan, reeds unmanufactured, india malacca joints, and other woods not specially provided for in this section, in the rough, or not further advanced than cut into lengths suitable for sticks for umbrellas, parasols, sunshades, whips, fishing rods, or walking canes—

Or as manufactures of wood under paragraph 176 of said act, in words as follows:

176. House or cabinet furniture wholly or in chief value of wood, wholly or partly finished, and manufactures of wood or bark, or of which wood or bark is the component material of chief value, not specially provided for in this section, 15 per centum ad valorem.

It is argued with much zeal and ingenuity by counsel for importers that paragraph 381 is divisible according to subject matter, the subjects thereof being “pipes and pipe bowls” and “smokers’ articles,” each therein being deemed by Congress separate tariff entities, wherefore, it is deduced, that the decisions and rules of construction enunciated as to “smokers’ articles” are not applicable to the terms “pipes” and “pipe bowls” as employed in that paragraph. It is further urged that as there is no provision therein for parts of pipes and as these are such, this part of the paragraph is inapplicable. The court is unable to view that the dual enumeration is used by Congress with that intent.

An examination of the paragraph as written and its predecessor paragraphs, to and including the act of 1883, discloses that rates of duty have in all of said acts been levied upon certain kinds of pipes, and, sometimes, the bowls therefor, different from those' rates laid upon certain other kinds of smokers’ articles, wherefore, the separate enumerations (1883, par. 476; 1890, par. 468; 1894, par. 369; 1897, par. 459; 1909, par. 475) were necessary. Indeed, many paragraphs of the several tariff acts are opened by a denominative enumeration, followed by a general term inclusive thereof, obviously without any purpose of Congress to thereby mark a distinction in tariff subjects. Thus, paragraph 357 reads: “Diamonds and other precious stones * - * It does not follow that thereby Congress meant to accord “diamonds” in that paragraph a different tariff status from other precious stones other than expressed by the subsequent words of the act. The court is, therefore, of the opinion that the Congress did not intend to restrict the provisions of this paragraph relating to pipes and bowls thereof as exclusive of the language therein applicable to such articles, but intended also the language therein relating to “smokers’ articles” equally'applicable to pipes and bowls, in all cases wherein the natural scope of said terms was so inclusive and the the particular article was not more specifically provided for in the paragraph as a pipe or pipe bowl.

Is, therefore, a pipestem, which is a part of a pipe, within the term “smokers’ articles” as herein employed?

While something has been here said about these stems being only partly completed, we think that they can not be so held upon the evidences of this record. They were returned by the appraiser as “pipestems.” In one case it is stated by the appraiser that “These articles, when imported, are ready for use as pipestems without any further process of manufacture, * * They were so returned by the collector and found by the board as pipestems, unqualifiedly, and there is in the record no controverting testimony. We must assume, therefore, that they are completed pipestems ready as imported to be used as parts of pipes. The contention is that parts of pipes are not herein classifiable.

This court in Knauth v. United States (1 Ct. Cust. Appls., 334; T. D. 31432), announced the rule of construction applicable to this provision as it appeared in paragraph 459 of the tariff act of 1897, in substantially the language of this act. We therein said:

The intensified iorm of the expression used, together with the far-reaching effect of the qualifying words stated, manifests to our mind 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.

The doctrine as thei’ein stated has been frequently reaffirmed by this court.

In United States v. Hanover Vulcanite Co. (4 Ct. Cust. Appls., 503; T. D. 33919), the rule was applied to rubber mouthpieces for pipes which are in fact parts of the stems of pipes, or, if you please, stems of pipes, and we are of the opinion that that case rules this. See also United States v. Isaacs (148 U. S., 654) and United States v. Schoverling (146 U. S., 76).

There is another consideration pertinent. In view of the broad language of paragraph 381, “all smokers’ articles whatsoever,” there being no related language, or restraining language in the paragraph itself limiting the word “articles,” its broad, unqualified use readily makes it inclusive of those finished, completed materials which are themselves articles of commerce. While finished pipestems are materials for the making of pipes or, more strictly speaking, the assembling of the parts of pipes, as imported, they are completed finished articles of commerce of an admitted distinctive name, “pipe-stems,” and are independent subjects, not only of wholesale but retail trade, and so known to all men.

They are the ultimate articles of one manufacture which become the material for another. Tide Water Oil Co. v. United States, (171 U. S., 210). Thus this court has held “cue tips,” imported as such, intended to be used as parts of billiard cues, are “articles.” Brunswick-Balke-Collender Co. v. United States (7 Ct. Cust. Appls., 1; T. D. 36253).

Also, that “hat sweats,” imported as such, intended to be used in hat making as parts thereof, are “articles.” Tilge & Co. v. United States (3 Ct. Cust. Appls., 97; T. D. 32360). See also Stiner & Son v. United States (5 Ct. Cust. Appls., 246; T. D. 34428). So “pipe-stems,” known as such, imported to be used in making and as parts of pipes, within this paragraph, which bears no material evidence of a contrary congressional intent, but the most comprehensive phraseology of which evidences a congressional purpose to include “all” articles whatsoever, are “articles” therewithin, though they may become the finished materials of subsequent manufacture.

Importers urge that, granting the foregoing, the word “bamboo” as used in paragraph 648 is more specific than the phrase ‘ ‘ all smokers’ articles whatsoever,” as used in paragraph 381. Passing consideration of the question of a designation by use controlling over an eo nomine designation (United States v. Snow’s United States Sample Express Co. (8 Ct. Cust. Appls., 351; T. D. 37611)), the court views that the modifying language of paragraph 648, under the facts of this case, excludes these articles. To be classified thereunder the bamboo must be “not further advanced than cut into lengths suitable for sticks for umbrellas, parasols, sunshades, whips, fishing rods, or walking canes.” That is to say, they must not be further processed than cut into lengths. These sticks are so further cut. Obviously, “smokers’ articles” is a more specific designation than “manufactures of wood,” as used in paragraph 176. The court, therefore, is_ of the opinion that the decision of the Board of General Appraisers should be affirmed.

Affirmed.