Robinson-Goodman Co. v. United States , 1929 CCPA LEXIS 35 ( 1929 )

Lenroot, Judge,

delivered the opinion of the court:

This is an appeal from a judgment of the United States Customs Court, second division, rendered after a new trial had pursuant to a mandate of this court reversing a former judgment to the same effect as the one now appealed from (16 Ct. Cust. Appls. 243, T. D. 42842).

The merchandise involved is artificial flowers, and the question to be determined is its proper classification.

It was classified under paragraph 1430 of the Tariff Act of 1922, the appraiser describing it as consisting of “trimmings or ornaments in the form of flowers, fruits, or leaves, suitable for dress or millinery use, composed of silk, cotton, metal or other yarns, threads or filaments,” and duty was assessed thereon at 90 per cent ad valorem.

The appellant protested the dutiable classification by claiming that the merchandise is properly dutiable at 60 per centum ad valorem under paragraph 1419 of the said act.

The pertinent parts of the two paragraphs are as follows:

Par. 1430. Laces, lace window curtains, burnt-out laces, and embroideries capable of conversion into burnt-out laces,. nets and nettings, embroidered or otherwise, veils, veilings, flouncings, all-overs, neck rufflings, flutings, quillings, ruchings, -buckings, insertings, galloons, edgings, trimmings, fringes, gimps, ornaments; braids, loom woven and ornamented in the process of weaving, or made by hand, or on any braid machine, knitting machine or lace machine; and all fabrics and articles composed in any part, however small, of any of the foregoing fabrics or articles; all the foregoing, finished or unfinished (except materials and articles-provided for in paragraphs 920, 1006, 1404, 1406, and 1424 of this Act), by whatever name known, and to whatever use applied, and whether or not named, described, or provided for elsewhere in this Act, when composed wholly or in chief value of yarns, threads, filaments, tinsel wire, lame, bullions, metal threads, beads, bugles, spangles, or products of cellulose provided for in paragraph 1213 of this Act, 90 per centum ad valorem; * * *.

Par. 1419. * * * artificial or ornamental fruits, vegetables, grains, leaves, .flowers, and stems or parts thereof, of whatever material composed, not specially provided for, 60 per centum ad valorem; * * * boas, boutonniéres, wreaths, and all articles not specially .provided for, composed wholly or in chief value of any of the * * * flowers, leaves, or other material herein mentioned, 60 per centum ad valorem. * * *

The court below overruled the protest, sustained the collector’s dutiable classification, and entered judgment accordingly, upon the authority of Blumenthal & Co. et al. v. United States, 14 Ct. Cust. Appls. 17, T. D. 41531. The importer appealed to this court, assigning, among other things, error in the court below in excluding testimony offered by it, particularly in regard to whether the component material of the merchandise in question excluded it from classi fication under paragraph 1430.

This court found reversible error in excluding testimony offered, and remanded the case for a new trial. In its opinion, this court stated:

The excluded evidence was admissible. It tended to establish that the component material of the exhibits was not any one of the materials to warrant classification under paragraph 1430. Its purpose was not to show the chief value of any component, but was to show what in fact such component was.

Thereafter many othfer offers of evidence were made on behalf of the importer, which were excluded on the objection of the Government, concerning which error is alleged here. To consider them all in this opinion would extend it to an unreasonable length. Among them was an offer to prove that the artificial flowers involved in this case were not trimmings or ornaments, another that they were made out of woven cloth, another that trimmings and ornaments were certain specific things, dealt with as such in the wholesale trade throughout the United States prior to and since 1922, and did not include artificial flowers. We are unable to see why, as the ease stood before the court below, such evidence was not admissible, but refrain from discussing the issues raised thereby because we are clear that the exclusion of the evidence covered by the first offer was reversible error.

Upon the retrial of the case, much testimony was introduced by the appellant in support of its contentions. The Government placed no witnesses upon the stand, but introduced in evidence the record in the case of Blumenthal v. United States, supra.

The lower court expressly found that all of the merchandise was generally and uniformly known and designated in the trade as artificial flowers, and not as trimmings or ornaments; that much of the merchandise in question is used, and that it is all capable of being used, as trimmings or ornaments on hats, wearing apparel, dresses, cushions, and various other things; that the merchandise is composed in chief value of velveteen, plush, silk taffeta, satin, or sateen, and these various fabrics are woven of yarns, threads, or filaments, and therefore, under the ruling of this court in the case of Kayser & Co. v. United States, 13 Ct. Cust. Appls. 474, T. D. 41367, the merchandise in question was composed of yarns, threads, or filaments within the meaning of paragraph 1430.

Upon these facts found by the court, it was held that the decision of this court in the case of Blumenthal v. United States, supra, governed the case, and judgment was .entered for the defendant, overruling the protest. From such judgment this appeal is taken by the importer.

Appellant contends that the decision in the Blumenthal case does not govern the case at bar, asserting that none of the evidence in that record tends to contradict the evidence in this case; that the evidence in the present case establishes that artificial flowers and trimmings and ornaments are each specific things, and that each is a distinct class of merchandise universally recognized in the trade and commerce of the United States at the time of the passage of the Tariff Act of 1922, and for many years prior thereto; that the terms “trimmings'’ and “ornaments” do not now and never have included artificial flowers such as the merchandise involved in this case; that there are “trimmings” and there are “ornaments” which are known by other names than those mentioned specifically in paragraph 1430; that artificial flowers are not made out of yarns, filaments, threads, tinsel wire, lame, bullions, metal threads, beads, bugles, spangles, or artificial silk yarn; that the proof establishing the facts contended for by the appellant was not present in the Blumenthal case, and therefore the two cases must be distinguished.

Appellee contends that the merchandise in question is of the same character as that involved in the Blumenthal case, and that the decision of this court in that case should be followed herein. It was established upon the trial that the merchandise here m question is of the same character as that involved in the Blumenthdl case.

In the Blumenthdl case this court found that all of the goods there in question, as they crossed the customs line, are available for use, and are actually used, as trimmings for hats, corsages, fur pieces, and ladies’ coats. In this case, the lower coqrt found that much of the merchandise is used, and that it is all capable of being used, as trimmings or ornaments on hats, wearing apparel, dresses, cushions, and various other things. This finding is established by the evidence.

In the Blumenthdl case this court found that it was established without contradiction that the merchandise there in question was composed in chief value of textile yarns, threads, or filaments. In the case at bar it is contended by appellant that the proof shows that the merchandise here in question was not so composed, but the lower court has found that, under the ruling of this court in Kayser v. United States, supra, the merchandise was composed of yarns, threads, or filaments. We adhere to the ruling in the Kayser case, and the evidence establishes the fact found by the lower court in this respect.

The first question to be considered is whether this case is distinguishable from the Blumenthdl case so far as the facts proved are concerned. Appellant points out that in the Blumenthdl case no evidence was adduced to show what are trimmings and ornaments as these terms are used in trade and commerce; that no evidence was offered in that case to show that, in addition to these words being specific, there are things known by other names which are similar in kind and character to the things specified in paragraph 1430, and which are imported and dealt with at wholesale under the general name of trimmings and ornaments, and which are thus covered by the words ‘'all the foregoing * * * by whatever name known.” That such evidence was absent in the Blumenthdl case and was adduced in the present case is a fact. Appellant also points out that the legislative history of paragraph 1430 was not introduced in the Blumenthdl case but is a part of the record in this case.

The case turns upon the definition of the words “trimmings” and “ornaments.” It is very evident that in the Blumenthdl case this court applied the ordinary meaning of these terms as defined in the dictionaries, and upon the record in that case it was justified in so doing, there being no proof of commercial designation restricting the ordinary meaning of these words. The court below in this case has also applied the ordinary or common meaning of the words. There is, however, in this case that which was absent in the Blumenthdl case — proof of commercial designation of the words “trimmings” and “ornaments,” at the time of the passage of the Tariff Act of 1922. It requires no citation of authority to the point that if commercial designation is found to exist, such designation fixes the character of the article for the purposes of the tariff law, unless a different legislative intent is shown.

The designations of merchandise covered by paragraph 1430 are followed by these words: “all the foregoing * * * by whatever npe known and to whatever use applied, and whether or not named, described, or provided for elsewhere in this Act, when composed wholly or in chief value of yarns, threads, filaments * * * 90 per centum ad valorem.” It is clear that the phrase “by whatever name known” is limited by the phrase “all the foregoing”; so that, before there can be any application of the phrase “by whatever name known” to the words “trimmings” and “ornaments,” the meaning of these words as used in the paragraph must first be ascertained. If there be in fact a restricted meaning of these words as used in commerce and trade, the phrase “by whatever name known” does not enlarge the class, but serves to include within the class every article comprehended by these terms as used in commerce and trade, regardless of the fact that such articles may have other and different commercial designations. The record in this case convinces us that the words “trimmings” and “ornaments” did not in commerce and trade, at the time of the passage of the Tariff Act of 1922, have the same meaning as is given to those terms by dictionary definitions. In support of this statement, the following testimony produced at the trial in the court below is quoted:

Joseph Englander, a witness on behalf of the appellant, testified as follows:

Q. Do you know what trimmings are, Mr. Englander? — A. I know what trimmings are known to the trade as.

Q. We are speaking of the trade meaning of the word? — A. Yes, sir.

The witness was then shown a number of articles which he testified were known to the trade as trimmings or ornaments. He then testified:

Q. Mr. Englander, are there any other articles which are dealt with in the trade in this country as trimmings or ornaments which have the names other than the names which I read to you from paragraph 1430? — A. I believe there are some other materials that have been used as trimmings and ornaments not included in paragraph 1430.

Q. For example, paragraph 1430 doesn’t use the word “motif.” You said a motif is an ornament? — A. Yes.

Q. It is dealt with as an ornament? — A. No, it is dealt with as a motif.

Q. But it is an ornament? — A. We called them ornaments at that time.

Q. Can you think of any others? — A. Baby yoke; is that included there?

Q. Yokes are not mentioned here? — A. Baby yoke might be used as a trimming.

Q. Passementeries? — A. They are also trimmings.

Q. What are medallions? — -A. Medallions; these are also known as medallions. When separated that is called a medallion.

Q. Mr. Englander, are the articles that you mentioned like baby yokes, passe-menteries, motifs, and medallions imported and dealt with generally in the trade and commerce of this country as trimmings and ornaments? — A. They are dealt with as motifs, medallions, or if they are a colored trimming like that, it would come under the heading of trimming motifs, which is an embroidery.

Q. Is the motif the same as an ornament? — A. In my understanding it is.

Q. Then these things, are they in the general category of trimmings and ornaments? — A. Yes, sir.

On cross-examination, the witness testified as follows:

Q. Now you have testified certain articles shown you are trimmings, did you not? — A. They are known to the trade as trimmings.

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Q. So then some of these articles, in your opinion, are trimmings because they are used as trimmings? — A. No, they are known as trimmings.

The witness further testified:

Commercially I would not call it a trimming commercially, just because it is used as a trimming, they are used for trimmings.

Q. Does that make them trimmings? — A. No, that don’t make them trimmings, they are known as trimmings.

Charles T. Biotte, a witness on behalf of the appellant, testified as follows:

Q. From 1918 to 1922 you knew what were trimmings and ornaments, what were dealt in in the wholesale trade and commerce of this country as trimmings and ornaments? — A. Yes.

Q. You were familiar with that class of merchandise? — A. Yes.

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Q. During the time from 1918 until to-day, are trimmings and ornaments specific things dealt with as such in the wholesale trade throughout the United States? — A. It is a broad general term which embraces a great variety of articles. It is a complete line of various items, but there is a distinct trade which deals or which is known as the trimming trade.

Q. Well, do the designations in the trade, “trimmings” and “ornaments,” include artificial flowers? — A. No.

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Q. Do you know of any articles which are generally classified as trimmings which are not mentioned by name in paragraph 1430? — A. Well, there are a great many trade designations which refer to a specific item, which, while falling in the general classification of trimmings, have in addition thereto an additional name, such as passementerie, which is used in the trade frequently. There is a rosebud trimming; so there are a great many words which are used to designate some specific item, but all fall within the general class of trimmings.

Q. I show you illustrative Exhibit KK, what is that? — -A. Rosebud trimming.

Q. How is that sold? — A. By the yard.

Q. Is that article known in the trade and commerce of this country as an artificial flower? — A. No.

Joseph Mittelmark, a witness on behalf of the appellant, testified as follows:

Q. Mr. Mittelmark, do you know what trimmings and ornaments are? — A. Yes, sir.

Q. Are trimmings and ornaments a specific kind of merchandise? — A. They are.

Q. Dealt with as such?- — -A. They are.

Q. Throughout the wholesale trade and commerce of this country? — A. They are.

Q. Was that a fact prior to 1922? — A. It was.

Q. Do you know what artificial flowers are? — A. I do.

Q. Are artificial flowers a distinct and separate class of merchandise?' — A. They are.

Q. Dealt in as such? — A. They are.

Q. I hand you illustrative Exhibit AB, will you tell me what those articles are? — A. Medallions or a motif.

Q. Are they ornaments?- — -A. These are ornaments.

Q. Are medallions and motifs another name for ornaments? — A. Yes, another name for ornaments.

Q. In other words, medallions and motifs are ornaments by some other name? — ■ A. That is right.

Q. I hand you illustrative Exhibit 00, what are those articles? — -A. Braids.

Q. Are they known by another name? — A. Well, they are commonly known as braids. You might call them appliqué.

Q. Would you call them anything else? — A. Trimming.

Charles E. Turk, a witness on behalf of the appellant, testified that he was an importer of dress trimmings and had been engaged in such business at wholesale for 23 years. Witness produced a number of articles which he identified under different names, such as bead ornaments, tinsel braid, motifs, etc., after which he was asked the following questions:

Mr. Turk, are all these articles which you have identified and which have been introduced in evidence here, generally known in the trade of this country as trimmings and ornaments? — A. Yes.

Q. Have they always been known, since you have been in business and dealt with, as trimmings and ornaments? — A. Yes.

Q. Are you familiar with the business known as the artificial flower business?— A. Yes.

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Q. Is that business separate and distinct from your line of business? — A. Exactly.

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Q. Will you please again state why in your opinion an artificial flower does not conform to the characteristics which you say apply to a trimming? — A. Because it was never recognized in our particular business as a trimming.

Appellant produced a number of other witnesses who testified substantially to the same effect as the foregoing.

In Acker v. United States, 1 Ct. Cust. Appls. 328, T. D. 31431, this court, in discussing the question of commercial designation, said:

• The further requisite, however, is necessary in assigning to a phrase a commercial limitation or application that it must be proven not alone that the imported merchandise is not classed therewithin, but there must be assigned by proof to that phrase a scope and meaning which is clearly, definitely, and uniformly understood throughout the United States which includes some other merchandise and excludes the imported merchandise. Clafflin v. Robertson 38 Fed. Rep, 92; Sidenberg v. Robertson, 41 Fed. Rep. 763. It likewise must be shown in such cases that such meaning of the phrase in trade and commerce should differ from the ordinary dictionary meaning or that of common speech. Maddock v. Magone, 152 U. S. 368.

We believe the evidence in this case clearly brings it within the rule laid down by this court above quoted.

There was no proof of this character in the Blumenthal case, and holding as we do that commercial designation has been proved in the present case, it is our duty to give to the words “trimmings” and “ornaments” the meaning that they had in trade and commerce at the time of the passage of the Tariff Act of 1922.

In the case of Nady & Fleischer v. United States, 164 Fed. 44, the Circuit Court of Appeals, Second Circuit, construing paragraph 390 of the Tariff Law of 1897, which covered many articles embraced in the present paragraph 1430 of the 1922 Act, held:

In our opinion the word "trimmings” in the paragraph cited is not used in a descriptive sense. The cases relied upon such as Hartranft v. Meyer, 149 U. S. 544, 13 Sup. Ct. 982, 37 L. Ed. 840, construing the act of 1883, are not controlling, because the paragraph therein construed contained the phrase "used, for making or ornamenting hats, bonnets, and hoods.” The eo nomine designation should be given the meaning it has in trade and commerce.

This case was expressly approved by this court in the* case of Loewenthal v. United States, 2 Ct. Cust. Appls. 43, T. D. 31592.

If artificial flowers are trimmings or ornaments within the meaning of paragraph 1430, then the fact that they are known in commerce and trade as artificial flowers and not as trimmings or ornaments would be immaterial, for in such case the language, “by whatever name known,” etc., would be sufficient to bring them within the provisions of paragraph 1430; but if, as we hold the proof in this case establishes, the words “trimmings” and “ornaments,” as used in commerce and trade at the time of the passage of the Tariff Act of 1922, were specific things and did not include artificial flowers, the phrase “by whatever name known” has no application to such flowers, because they are not brought within the class to which the phrase applies. The proof in this case shows that there are many articles coming under the terms “trimmings” and “ornaments,” as used in trade and commerce, but which also have other names more specific, such as passe-menterie, motifs, medallions, rosettes, etc., and it seems clear that the intention of Congress in using the phrase “by whatever name known” was to bring articles of this kind within paragraph 1430, which were known to the trade as “trimmings” and “ornaments,” even though they may have also a more specific designation.

We are therefore compelled to hold that the words “trimmings” and “ornaments,” as used in trade and commerce, do not include artificial flowers, and did not at the time of the passage of the Tariff Act of 1922, and therefore such articles are not dutiable under the provisions of paragraph 1430, but are dutiable under paragraph 1419. Had the proof in this case upon the meaning of the words “trimmings” and “ornaments” been the same as in the Blumenthal case we should have adhered to our ruling in that case; but the proof in this case showing, as it does, a commercial designation restricting the ordinary meaning of these words, which was not shown in the Blumenthal case, we are led to a different conclusion as to the classification of artificial flowers.

The conclusion we have reached is in accord with the decision of the Supreme Court in the case of Pickhardt v. Merritt, 132 U. S. 252. That case involved the classification of certain dyes or colors. They were classified by the collector under a provision of section 2504 of the Revised Statutes, which read as follows: “Paints and dyes — aniline dyes and colors, by whatever name known.” The plaintiff claimed that the articles were not in fact aniline dyes, and should have been classified under another section carrying a lower rate of duty. He objected to the admission of evidence to show the signification of the words “aniline dyes and colors” as a commercial term in contradistinction to a descriptive term. In its opinion the court said:

The court instructed the jury that if the four articles in question, according to the understanding of commercial men, dealers in and importers of them, would when imported “be included in the class of articles known as aniline dyes, by whatever name they had come to be known,” they were subject to duty as aniline dyes, and the defendant was entitled to a verdict. We see no objection to this instruction. It was in accordance with the established rule that in interpreting customs statutes commercial terms are to be construed according to the commercial understanding in regard to them.

So as to the merchandise here in question, if at the time of the passage of the Tariff Act of 1922 artificial flowers, according to the understanding of commercial men, dealers, and importers of them, would when imported be included in the class of articles known as “trimmings” or “ornaments,” by whatever name they had come to be known, they were subject to duty as trimmings or ornaments under paragraph 1430, but if not included in the class of articles known as “trimmings” or “ornaments,” they were subject to duty under paragraph 1419.

We do not think that the conclusion here reached is in conflict with the decision of this court in the case of Kotzin Bros. et al. v. United States, 14 Ct. Cust. Appls. 99, T. D. 41589. In that case the language construed was the phrase “articles or fabrics embroidered in any manner by hand or machinery, ’ ’ in which it was held that commercial designation of the phrase was excluded. In that case Congress clearly expressed its intent that any article embroidered in any manner should be subject to the rate of duty provided. That the articles there in question were in fact embroidered was established, and in view of the express language of the statute, whether or not they were known in trade and commerce as embroidered articles was immaterial.

The judgment is reversed and the cause remanded for proceedings consistent with the views herein expressed.