Field v. United States , 19 C.C.P.A. 366 ( 1932 )

Bland, Judge,

delivered the opinion of the court:

This is an appeal from a judgment of the United States Customs Court which overruled appellant’s protest and held certain linen and cotton handkerchiefs dutiable as assessed under paragraph 1529 of the Tariff Act of 1930, the material portion of which paragraph follows:

Par. 1529. * * *

(b) Handkerchiefs * * * embroidered (whether with a plain or fancy initial, monogram, or otherwise, and whether or not the embroidery is on a scalloped edge), * * * all the foregoing, finished or unfinished, of whatever material composed, * * * valued at more than 70 cents per dozen, 4 cents each and 40 per centum ad valorem; * * *.

Importer claims that the merchandise is dutiable under paragraph 1016 or under paragraph 918 of the same act the material portions of which paragraphs read:

Pab. 1016. Handkerchiefs, wholly or in chief value of vegetable fiber, except cotton, finished or unfinished, * * * hemmed or hemstitched, * * * 50 per centum ad valorem.

Pab. 918. Handkerchiefs and woven mufflers, wholly or in chief value of cotton, finished or unfinished, not hemmed, shall be subject to duty as cloth; hemmed or hemstitched, 10 per centum ad valorem, in addition.

The briefs contain no discussion of the question as to whether appellant has made proper claims in its protest, but during the argument in this court some question was raised by the Government challenging the sufficiency of the protest in warranting this court in holding that certain parts of the merchandise were dutiable under one of the paragraphs urged by appellant.

In view of our conclusions that the merchandise is properly dutiable as assessed and as found by the lower court, we think it unnecessary to discuss the sufficiency of the protest to raise the particular question to which reference has been made.

Three exhibits, Exhibits 1, 2, and 3, representative of the merchandise, were introduced as part of the record. As far as the issues at bar are concerned the exhibits are identical. The sole question presented is whether or not certain stitching on the scalloped edges of the handkerchiefs brings the same within the language used in paragraph 1529—

embroidered (whether with a plain or fancy initial, monogram, or otherwise, and whether or not the embroidery is on a scalloped edge), * * *.

Around the scalloped edge of each handkerchief is a narrow border of thread stitching which is stitched over a cord or thread which follows the entire edge of the handkerchief. The cord is placed parallel to and against the edge of the cloth and does not overlap the cloth. The stitches extend from the outer edge of the cord into the handkerchief for a distance of probably a little more than one thirty-second of 1 inch. One of the exhibits is a pink handkerchief with white silk-thread stitching over a white cord; another is a blue handkerchief with white silk-thread stitching over a white cord; the third is a white handkerchief containing figures in shades of brown and a tan silk-thread stitching over a tan cord.

Appellant contends that the stitching is not embroidery; that, notwithstanding the fact that it may give an otherwise plain handkerchief a fancy appearance, it can not be regarded in law as embroidered, since the stitching serves the useful purpose of preventing the raveling of the edges, and relies upon dictionary definitions and the decisions in the cases of Durbrow & Hearne Manufacturing Co. v. United States, 9 Ct. Cust. Appls. 148, T. D. 37993; United States v. Grass Bros., 13 Ct. Cust. Appls. 33, T. D. 40866; Mayer & Co. et al. v. United States, 13 Ct. Cust. Appls. 390, T. D. 41321; Kayser & Co. et al. v. Pevny, United States Impleaded, 13 Ct. Cust. Appls. 479, T. D. 41368, and Sloane v. United States, 7 Ct. Cust. Appls. 463, T. D. 37049.

The Government relies upon the decisions in Neuss, Hesslein & Co. v. United States, 142 Fed. 281; Billwiller Bros. v. United States, T. D. 44911; United States v. Waentig, 168 Fed. 570, and United States v. H. A. Caesar & Co., 18 C. C. P. A. (Customs) 106, T. D. 44067.

The provision “whether or not the embroidery is on a scalloped edge” in paragraph 1529, supra, is a new provision not found in previous tariff acts.

The court below, referring to this provision, said—

By the provision for “handkerchiefs embroidered * * * whether or not the embroidery is on a scalloped edge, ” in paragraph 1529 (b) of the Tariff Act of 1930, the Congress has clearly indicated its intention to bring within that provision scalloped handkerchiefs, on the edges of which there appears ornamental and decorative stitching which produces forms, figures, or designs, even though this stitching may also serve an incidental utilitarian purpose.

We agree with the conclusion of the court below in the above-quoted language. It is not denied that the stitching on the edge of the scallops served to ornament the handkerchief. When counsel for appellant was asked in this court to what Congress referred by the use of the language, unless it had in mind a stitching which served the same purpose as the stitching at bar, he replied that it had reference to stitching near the edge such as was shown in illustrative Exhibit A. Illustrative Exhibit A is a handkerchief, on the scalloped edges of which is a stitching quite similar, in some respects, to the stitching at bar. Near the stitched edge are embroidered dots which are within the scallops but which do not touch the edge of the handkerchief. Counsel could give no satisfactory rule for determining how close to the edge the embroidered dots were required to be placed in order that they respond to the language used in the quoted portion of paragraph 1529. While it seems clear to us that illustrative Exhibit A (leaving the stitched edge out of consideration) is an embroidered article under the new provision, it seems equally clear that it is an embroidered article under the language used in the Tariff Act of 1922. If what appellant points out is all that Congress had in mind by the use of the new phrase, it was a superfluous and futile use of language.

If the ornamental stitching was more elaborate and extended farther into the handkerchief than is shown in the merchandise at bar, it would, no doubt, give a greater ornamental effect. This, however, is a matter of degree only. We think that Congress, by the new language used in the paragraph under consideration, intended it to apply to merchandise like that at bar.

Before Congress, at the time of enacting the paragraph, in Summary of Tariff Information, 1929, at page 2027, was set out the following definition of embroidery—

Embroidery is ornamental stitching.

Webster’s New International Dictionary (1932) defines embroidery as—

1. Needlework used to enrich textile fabrics * * * etc.

2. Diversified ornamentation, esp. by contrasted figures and colors; * * * .

The stitching at bar enriches and ornaments the articles, and we think that this is its primary purpose.

It is not necessary for us to discuss the decisions relied upon by the appellant, which it contends sustain its position that a stitching which has a utilitarian purpose can not be regarded as embroidery. Regardless of whether these decisions are sound on the general proposition as to what is or is not embroidery, we must hold that, in view of the language used, Congress intended that such stitching as that in the case at bar should be regarded as embroidery.

The decision of the United States Customs Court is affirmed.