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 sixty per cent, ad valorem under par. 434 of the tariff act of 1897. 30 Stat. 151, p. 192. The Board of. General Appraisers sustained the importer’s protest, holding the pearls to be dutiable by similitude at ten per cent, under par. 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.
The paragraphs of the act of 1897 (30 Stat., p. 192),. 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, sixty per centum ad valorem^
„ ' "436. Pearls in their natural state, not strung or set, ten 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. A.s 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
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 several 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 aggregate 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 timé 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. 205.
First. The rule is well established that “in order to produce uniformity in the imposition of duties, the duti
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 string
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, supra; Isaacs
v.
Jonas,
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. 310) a duty of seven
In the Revised Statutes (■§ 2504, p. 484) we find the following: “Precious stones and jewelry. — Diamonds, cameos, mosaics, gems, pearls, rubies, and other precious stones, when not set: ten per centum ad valorem; when set in gold, silver, or other metal, or on imitations thereof, and all other jewelry: twenty-five per centum ad valorem.” In 1883 (22 Stat. 488, 513, 514) the rate of duty was made twenty-five per cent for “jewelry of all kinds” and ten per cent, for “precious stones of all kinds.” In 1890 (26 Stat. 600, 601) the jewelry paragraph (452), which fixed the rate at fifty per cent, embraced all articles, not elsewhere specially provided for, which were composed of precious metals or imitations thereof (including those set with pearls) and known commercially as jewelry; and the following paragraph (453) read: “Pearls, ten per centum ad valorem.” By the act of 1894 (28 Stat. 509, 534) the jewelry rate was reduced to thirty-five per cent.; the paragraph as to pearls was changed so that instead of describing pearls generally it read: “Pearls, including pearls strung but not set, ten per centum ad valorem,” and pearls set were placed with precious stones set, with a duty of thirty per cent.
It will thus be observed that when pearls were enumerated in the tariff acts prior to that of 1897, the enumeration
To complete the review of the statutes, it may be added that in 1909, when new tariff legislation was under consideration, it was proposed, in the light of the decisions to which we shall presently refer, that there should be inserted in the act a clause providing that “collections of pearls selected, matched, or graded shall be dutiable as jewelry;” and the House bill so provided. H. R. Bill No. 1438, par. 447, 61st Cong., 1st sess., Cong. Rec., Vol. 44, p. 1510. Congress not only refused to make this insertion, but instead, retaining the existing rate on unstrung and unset pearls, omitted the phrase “in their natural state,” and further clarified the provision by inserting the words “drilled or undrilled,” so that the clause in the act of 1909 reads: “Pearls and parts thereof, drilled or undrilled, but not set or strung, ten per centum ad valorem.” (36 Stat. 68.)
The difficulties that beset the construction of paragraph 436 of the act of 1897 sufficiently appear in the cases which have been brought before the courts. In 1898, Tiffany & Company imported pierced pearls described in the invoices as “pearls drilled, but not strung.” They were assessed for duty at twenty per cent, as unenumerated articles, manufactured in whole or part, under § 6. The Circuit Court (103 Fed. Rep. 619) held that the phrase “pearls in their natural state” was a new phrase wholly unknown to merchants; that the words, having no commercial meaning, must be interpreted in their plain, natural sense; and that a drilled pearl was not a pearl in the natural state. It was pointed out that the selection made by Congress in the use of these words, so interpreted, seemed an unfortunate, one as the effect was to
On a later importation of drilled pearls this decision was followed by the collector, and the ruling was affirmed by the Circuit Court. T. D. 22,140, G. A. 4692; Tiffany v. United States (1901), 105 Fed. Rep. 766. But, while overruling the importer’s protest, the court stated that the similitude clause should operate before the general clause providing for unenumerated manufactured articles and that the imported pearls bore a closer resemblance to strung pearls than to pearls in their natural state. This was in effect to hold that drilled pearls were dutiable under the jewelry paragraph at sixty per cent.
This decision was reversed by the Circuit Court of Appeals. Tiffany v. United States (1901), 50 C. C. A. (2d Cir.) 419; 112 Fed. Rep. 672. It was ruled that the pearls were not covered by either of the paragraphs 434 and 436; that the similitude clause should be applied; and that the drilled pearls more closely resembled pearls in their natural state than strung pearls and hence that the pearls in question were dutiable at ten per cent. (This was followed in T. D. 23,751, G. A. 5149.) The court,, however, indicated that there would; be an exception to this rule when the pearls had been so selected as to produce a collection “worth more than the aggregate values of the individual pearls composing it.”
Meanwhile, Neresheimer & Company had imported two lots of drilled pearls, in March and November, 1901, respectively, one being forty-five and the other thirty-nine in number, the total value exceeding $123,000. At first they were assessed at the rate of twenty per cent.; but after the decision of the Court of Appeals in the
Tiffany
The Circuit Court affirmed the action of the board. Neresheimer & Co. v. United States (1903), 131 Fed. Rep. 977. But on appeal the decision was reversed by the Circuit Court of Appeals (1904), 68 C. C. A. (2d Cir.) 654; 136 Fed. Rep. 86. Reviewing the conflicting testimony, the Court of Appeals concluded that the evidence did not warrant a finding that the pearls had been assorted so as to acquire the increased value as a collection which would bring, them within the exception suggested in the Tiffany Case. It was held that they were dutiable at ten per cent, “by similitude to paragraph 436.”
In 1905, Charles E. Rushmore imported eighty-five pearls which the appraiser, in a special report, stated had “been carefully selected, matched, and assorted, and, in fact, are said to have been strung, and require only to be restrung to form a necklace. They are in the same condition as those passed upon by the board in G. A.
It thus appears that prior to 1906, when Citroen imported the pearls now in question, unstrung pearls, though drilled and matched so that they were ready to be strung as a necklace, had been held dutiable at ten per cent. The fact that they were reported to have been previously strung abroad had not been deemed of consequence in the Rushmore Case, and the Government had acquiesced in the ruling. Further, the exception indicated by the court in the Tiffany and Neresheimer Cases was negatived by the Board of General Appraisers, which in Citroen’s case found that the pearls were not matched as to color and luster with such care as would enhance their value as a collection. T. D. 28,246, G. A. 6617, And the Circuit Court of Appeals, reversing the Circuit Court, held that there was no reason to disturb these findings. “It is fair to assume,” said the Court of Appeals (p. 695), that the ruling in the Bushmore Case “actuated the appellant (Citroen) in importing and selling- the pearls.”. And it'is now asserted by his counsel at this bar that should the Government succeed, Citroen would be the only person who would have paid sixty per cent, duty on a collection of pearls of the sort which these have been found to be.
Later — in 1909 — while the act of 1897 was still in force, Tiffany & Company imported fifty-nine pearls divided into four packages, all loose and all drilled. It appeared from the testimony before the Board of General Ap-. praisers that M. Guggenheim, the ultimate purchaser,
In its opinion in the present case, the court below (166 Fed. Rep. 696) forcibly expressed its dissatisfaction with the effort to resolve the doubt as to the meaning of the statute by a comparison “depending not upon an examination of the articles themselves, but often upon extrinsic evidence obtained long afterwards.” It was a comparison, said the court, “which cannot be uniform, which imposes 10 per cent, upon one. aggregation of pearls and sixty per cent, upon a similar aggregation, the fate depending upon the ability to obtain evidence of prior use-in foreign countries. A comparison which does not admit of a fixed, definite rule, which encourages partiality, promotes injustice; and has broken down in practical
In this view we think the court was right. As was pointed out by the Board of General Appraisers: “Pearls just as they come from the shell are, strictly speaking, only such as are in their'natural state.” But the statute deals with the pearls of commerce. It appears that over seventy-five per cent, of all large pearls when they first come into the hands of wholesale dealers are drilled, usually in a somewhat primitive manner by the pearl fishers. It cannot be supposed that Congress contemplated such a disregard of the facts of trade, and such a radical departure from the policy of former tariff legislation, as would be involved in a construction of paragraph 436 which would exclude drilled pearls. Moreover, the language of the paragraph is “pearls in their natural state, not strung or set.” This implies that the description includes pearls that can be strung or set, and pearls cannot be strung unless perforated. The words do not exclude, but embrace pearls that have been pierced, provided they are unstrung and unset.
But if drilled pearls, when neither strung nor set, are included in paragraph 436, the fact that they have been matched or assorted so as to form a collection suitable for stringing, or of being worn strung, does not take them out of the paragraph. Its language makes no distinction of that sort.. The selection, or matching, does not alter the character of the pearls.
We are of the opinion that, as in former tariff acts to
We conclude that the similitude clause has no application and that upon the facts shown the pearls imported in this case were dutiable under paragraph 436 at ten per cent.
Judgment affirmed.