No. 1913 | C.C.P.A. | Jan 28, 1919
delivered the opinion of the court:
The merchandise in question in this case consists of a combination penholder fitted with a pencil at one end and a pen at the other.
The collector in assessing duty segregated the pen from the combination penholder and assessed, duty on the latter under paragraph 157 and on the pen at the rate provided for in paragraph 156.
The paragraphs in question read as follows:
156. Pens, metallic, not specially provided for in this section, 8 cents per gross; with nib and barrel in one piece, 12 cents per gross.
157. Penholder tips, penholders and parts thereof, gold pens, fountain pens, and stylograpliic pens; combination penholders, comprising penholder, pencil, rubber eraser, automatic stamp, or other attachment, 25 per centum ad valorem: Provided, That pens and penholders shall be assessed for duty separately.
It is possibly true that paragraph 157 is open to a construction which would sustain the contention of the Government, but the most that can be said in support of such holding would be that the conclusion reached by the board would not as an original question-be free of doubt. In such case the rule is too well settled to require more than the statement that the benefit of the doubt should be given to the importer: But, more than this, the board, in Abstract 31191 (T. D. 33145; 24 Treas. Dec., 136), in the Illfelder case, wherein a similar issue was presented under the act of 1909, involving a construction of paragraphs 186 and 187 of the act of 1909, which are concededly in all essentials the same as paragraphs 156 and 157 of the act of 1913, ruled the question in precise accord with the conclusion reached in the present case. Thereafter the act of 1913 was adopted by the Congress, and the rule that the reenactment of a statute which has received judicial construction affords a presumption that such statute is to be construed as previously interpreted by the judicial tribunal would have application.
The court might well rest the decision of this case upon the two rules above suggested: First, that if the original construction were doubtful, the benefit of the doubt should be given to the importer; and, second, that the readoption of this statute by the Congress imported that it was to be construed in the future as it had been in the past.
But more than this, we think that were the question new, the board reached the correct conclusion. Combination penholders provided for in the statute are described as “comprising penholder, pencil, rubber eraser, automatic stamp, or other attachment.” We think that a pen inserted in one of these combination penholders is a§ much an attachment as is the lead pencil which appears at the other end. It is an attachment in the same sense that the pencil is an attachment or as a rubber eraser would be. It is a part of the completed whole.
The cases referred to by the Government’s counsel, which were decided earlier and in which it is said that a contrary conclusion was reached, are cases in which the chief question in issue was not the one which is here involved, and in which there was no discussion of the question here involved. While the result reached in these cases was an assessment in accordance with the present contention of the Government, that ruling was not sustained by any reasoning or consideration of the precise question here discussed. The question was involved rather than decided.
But, more than this, the decision of the board in the later case, which distinctly considered this question and decided it, would, as to that tribunal, be authoritative.
The decision of the board is affirmed.