167 F. 526 | 2d Cir. | 1909
The merchandise in question consists of braids composed of cotton and india rubber, the latter being the component material of chief value. The government contends that it is dutiable under these provisions of paragraph 339 of the tariff act of 1897 (Act July 24, 1897, c. 11, § 1, Schedule J, 80 Stat. 181 [U. S. Comp. St 1901, p. 1662]):
“Braids * * * composed wholly or in chief valuó 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.”
The importer claims that the merchandise should be assessed under paragraph 449 of said act:
“Manufactures of * * * india rubber * * * or of which these substances or either of them is the component material of chief value, * * * hirty per centum ad valorem.”
But it is urged that, if the statute applies only to braids composed in chief value of cotton, no effect is given to the clause “whether composed in part of india rubber or otherwise.” This is' not entirely true. The clause is explanatory. Braids composed wholly or in chief value of cotton are the specific articles to which the statute applies. The clause, explains that these articles .come within the statute, whether they contain some india rubber or not. This explanation is undoubtedly unnecessary. The presence of india rubber — not sufficient to make it the component material of chief value — would not affect the application of the statute without the explanatory clause. But explanatory clauses are often unnecessary. And whether necessary or unnecessary, they can seldom override the direct and positive provisions of a statute.
The government relies in support of its contention upon the decision in Hague v. United States (C. C.) 73 Ted. 810. The provision construed in that case, in Tariff Act Aug. 27, 1894, c. 349, § 1, Schedule I, 28 Stat. 529, reads:
“Cords, braids * * * made of cotton or other vegetable fiber, and whether composed in part of india rubber or otherwise.”
'It wás said'that bords in which india rubber was the component material of chief value fell within the provision. But the very words which control this decision — “composed wholly or in chief value”- — ■ weye not in-the statute construed in the Hague Case; and that decision, therefore, cannot be regarded as an authority against the construction which we .have placed upon the present statute. And as the-phrase adjudicated in the Hague Case is essentially different from that of this provision, the rule that an adjudicated phrase is employed in its adjudicated sense when incorporated in a later statute, is inapplicable. On the contrary, it must be presumed from the language émployéd that when Congress, in view of the decisions, placed braids -in 'á paragraph applying to articles “composed wholly or in chief value of flax,' cotton, or other vegetable fiber,” it intended that for the future braids composed of cotton and india rubber should be assessed under' the vegetable fiber schedule only when cotton was the cqmponent material of chief value. That this conclusion may lead to inconsistencies in duties is not adequate ground for holding that Congress meant the opposite from that which it said.
The merchandise should1 have been assessed under paragraph 449, and not under paragraph 339, of the tariff act of 1897.
The decision of the Circuit Court is reversed.-
COXE, Circuit Judge, dissents.
