Whiting v. Bancroft

| U.S. Circuit Court for the District of Massachusetts | Oct 15, 1841

STORY, Circuit Justice.

The jury having found, that these worsted bindings were not “worsted stuff goods,” in the commercial sense of the terms, it follows of course, that they are not free under the tariff act of 1833, e. 55, § 4, -which exempts all “worsted stuff poods” from duty, the prior tariff act of 1832, c. 227,. § 2, having imposed a duty upon “worsted stuff goods” of ten per cent, ad valorem. The remaining question, which was reserved at the trial, is, whether these worsted bindings are to be deemed non-enumerated articles, liable to a duty of 15 per cent, ad valorem, under the 25th clause of the 2d section of the tariff act of 1832, c. 227, or are liable to a duty of twenty-five per cent., as being embraced within the 2d clause of the same section, which levies that duty, among other things, on “mits, gloves, bindings, blankets, hosiery,” &c. It is impossible fully to comprehend the argument, without a recital of the whole clause. It is in the following words. “Second. On all milled and fulled cloth, known by the name of plains, kerseys, or kendal cottons, of which wool shall be the only material, the value whereof shall not exceed thirty-five cents a square yard, five per centum ad valorem; on worsted stuff goods, shawls, and other manufactures of silk and worsted, ten per centum ad valorem; on worsted yarn, twenty per centum ad valorem; on woollen yarn, four cents per pound, and fifty per centum ad valorem; on mits, gloves, bindings, blankets, hosiery, and carpets and carpeting, twenty-five per centum, except Brussels, Wilton, and treble ingrained carpeting, which shall be at sixty-three cents the square yard, all other ingrained and Venetian carpeting, at thirty-five cents the. square yard; and except blankets, the value whereof, at the place from whence exported, shall not exceed seventy-five cents each, the duty to be levied upon which, shall be five per centum ad valorem; on flannels, bockings. and baizes, sixteen cents the square yard; on coach laces, thirty-five per centum; and upon merino shawls made of wool, all other manufactures of wool, or of which wool is a component part, and on ready made clothing, fifty per centum ad valorem.” Now the argument turns upon this, that the “bindings" spoken of in this clause, are not all bindings whatsoever, but only such as are woollen bindings, as contradistinguished from worsted bindings.

In examining the clause in question, it is clear, that it applies solely to articles composed in whole or in part of wool, using the latter word in its comprehensive sense, as applicable to the raw material, and not merely to its commercial sense, when incorporated into a particular fabric or manufacture. There is no doubt, that, in a commercial sense, worsted goods are distinguishable from woollen goods; and so accordingly this clause treats them, although wool is a constituent part of all worsted goods; for worsted is but wool, spun and twisted in a particular manner. The point of the argument, therefore, must turn upon this, that the duty on “mits. gloves, and bindings,” in this clause, is not intended to cover all sorts of mits, gloves, and bindings, manufactured out of wool, but only such as would be denominated woollen mits, gloves, and bindings. The argument derives some force from the immediately antecedent article mentioned being “woollen yam”; and hence the maxim, “Noscitur a sociis,” is said to be applicable to it. But in construing the clause, it seems to me, that the whole must be taken together. The first branch of the clause embraces all milled and fulled cloth known by the name of plains, kerseys, and kendal cottons, of which wool is the only material; next, comes worsted stuff goods, &c.; next, worsted yarn; next, woollen yarn; and then, mits, gloves, bindings, blankets, hosiery, and carpets. Now, certainly, in this very con-nexion, we find goods enumerated, which either are, or at least may be, composed of worsted. No one, I suppose, doubts, that there are, or may be worsted mits. worsted gloves, worsted bindings, and worsted hosiery, as well as woollen; iand therefore there is nothing in the language, which necessarily or naturally limits it to the one class, rather than the other. Why, then, should it not be construed to embrace both, since it is found in a clause equally embracing woollen and worsted goods, and there is nothing pointing specially to one in .preference to the other? And, indeed, since the language is general, “mits, gloves, bindings, hosiery.” &c., why should it not be applied to all mits, all gloves, all bindings, all hosiery, whatever are the component materials, upon the ground of the very maxim,'“Noscitur a so-ciis;” the clause embracing, in all other respects, woollen and worsted goods only, with the single exception of “shawls and other manufactures of silk and worsted,” and that very exception being inapplicable here?

The case of Adams v. Bancroft [Case No. 44], turned upon very different considerations, growing out of another distinct clause (the 15th) of the same section. That clause levied a duty of a very different sort upon “all manufactures of silk, or of which silk shall be a component part”; and the court held, that French silk gloves, being a manufacture of silk, could not have been within the purview of the second clause respecting mits and gloves; otherwise it would involve a direct repugnancy between the two clauses of the section. To give full effect to each clause, the court said, that the second clause was applicable solely to mits and gloves, which were wholly or in part composed of wool; and the other clause, to mits and gloves, which were wholly or in part composed of silk. By implication and inference, therefore, the reasoning of the court in thát case, would lead us to the conclusion, that the second clause would embrace worsted mits. worsted gloves, and worsted bindings. That point, however, not being then directly before the court, the present ease is not necessarily governed by it.

My opinion, upon the best reflection, which I have been able to bestow upon the subject, is, that all bindings, whether woollen or worsted, are within the purview of the second clause; and to construe worsted bindings to be without it, and woollen bindings to be within it, would be, not to interpret the clause upon its general import and the context, but to insert qualifications and limitations, where the act declares none. The motion, therefore, for a new trial upon the reserved point, must be overruled.