Koons, Wilson & Co. v. United States , 8 Ct. Cust. 333 ( 1918 )

MONTGOMERY, Presiding Judge,

delivered the opinion of the court:

Three separate shipments of clay, one during the life of the act of 1909 and the other two since the act of 1913 took effect, were imported by the appellants. Those imported under the act of 1909 were assessed at the rate provided by that act for unwrought clays and those imported under the act of 1913 were assessed under a like provision of that act. The paragraphs under which the assessments were made are substantial’^ similar except as to the rate qf duty, and we quote paragraph 90 of the act of 1909 as.follows:

90. Clays or earths, umvrought or unmanufactured, not specially provided for in this section, $1 per ton; wrought or manufactured, not specially provided for in this section, $2 per ton; * * *.

The importers protested that the importations were entitled to free entry under the freeJist provisions of the several acts in force at the date of importation. These provisions being identical, we quote from the act of 1909:

534. Clay: Common blue clay and Gross-Almerode glass-pot clay, in cases or casks, suitable for the manufacture of crucibles and glass melting pots or tank blocks.

The Board of General Appraisers overruled the protest and the importers appeal.

• The question presented is whether the clay represented by the samples is common blue clay suitable for use in the manufacture of crucibles and glass pots. It seems to be taken for granted that glass pots are a form of crucibles, and if it is shown that these are suitable for glass pots, it would follow that they are suitable for a form of crucibles, and within the terms of the statute.

The testimony would apparently indicate that the clays introduced are suitable for the purpose of making glass pots. The board appeared to be of the opinion that the case in this respect had not been made out, on the ground that the uses which were shown to have been made were still experimental. We think the testimony, however, fairly shows that the clays are suitable for this use. The testimony upon this point is undisputed and only needs lo be construed.

Mr. Kerr, a director of the research laboratory of the Pittsburgh Plate Glass Co., was called as a witness and in answer to the question, “ Have you had any dealings in this clay, other than from a merely chemical standpoint?” testified, “The clay has been all bought and used under my supervision.”

Q. Are you personally familiar with the use or uses to which clays like Exhibits 1, 2, aud 3 are put?—A. I am; that has been a large part of my duty with the company.

Q. What are those uses?—A. The making of clay pots in which the glass is melted.

Q. Are these typical glass-pot clays?—A. They are.

Corroborative testimony to the same effect is given by Jules Delforge, of Belgium, taken by deposition.

It remains to be considered whether they are common blue clays within the meaning of that term as used in this statute. It is no easy matter to define common blue clay. The only definition to which attention has been directed appearing in the dictionaries is that which differentiates blue clay from other clays, given in the Dictionary of Chemicals and Raw Products, by George H. Hurst,' published in 1901, which defines blue clay (p. 107) as “clay of grayish color which is much employed in the making of common pottery; it burns white or nearly white, and has the composition shown in the following analysis: ’ ’ (Analysis follows.)

Mr. Ken-, in answer to the question, “Do you know of any clays that are used or are suitable for use in the manufacture of crucibles and glass melting pots or tank blocks that have any more bluish tinge than these samples which you produce?” testified, “I know of none.” . •

Mr. Munger, a witness also produced by the importers, stated that he had never come in contact with cla,ys used or suitable for use in the manufacture of crucibles and glass melting pots or tank blocks that had any bluer tinge than the samples exhibited, 1 and 2.

The examiner of merchandise at Philadelphia produced a sample of clay which was marked- as “Illustrative Exhibit A,” and stated that it was known to him as common blue clay, invoiced as such, and known to him as such, and passed as common blue clay suitable for the manufacture of crucibles. The witness Munger, comparing this clay with the samples introduced by the importers, testified that it was not bluer than any of these samples. •

It would seem, therefore, that so far as actual color is concerned this clay answers the dictionary definition and corresponds to that which the Government by its officers has treated as answering to the term “blue clay.” It also appears, as already, pointed out, that it is clay suitable for use in the manufacture of glass pots.

It also appears from the testimony in the case that the color has nothing whatever to do with the suitability of the clay for the manufacture of glass pots; that the ingredient which gives- the clay its color is eliminated in heating it preparatory for use. It may be asked, therefore, why this designation of blue clay % The only answer which has occurred to us is that it is to differentiate it from a kind of clay which the testimony shows would be unfit for use in the manufacture of crucibles or glass pots—that is, a reddish clay containing too much iron. This element would not be eliminated by heating and would be objectionable for the uses indicated by the statute.

If any particular intensity of blue was intended, the word “ common” was most inappropriate, for certain it is that a deep-blue colored clay is very rare anywhere and in many localities would be considered unique. But, however important the color may be deemed, it is clear that the Congress provided for glass-pot clay, and that no construction is open which renders this provision inoperative if there is a clay answering in any sense to the term “blue clay,” which is- also glass-pot clay. It would seem that the clay here in question, though of a grayish tinge, is known as. blue clay, both to lexicographers and to Government officials, and that those familiar with the glass-pot industry know of no clay used in making glass pots of a bluer tinge.

If it be said that the use of the word “common” implies ubiquity, this possible construction is rebutted by the controlling provision, “suitable for use in making crucibles or glass melting pots.”

Nor is the chemical composition important. If, in fact, it answers to the color of the common blue clay and is of a quality suitable for the use prescribed, its varying chemical content (varying doubtless in different samples) becomes immaterial.

A portion of the clay imported came packed in bags. The question is raised as to whether clay in such covering is included within the free-list provision of either of the two tariff acts under consideration. The board, relying upon a previous board decision construing a provision of the tariff act of 1897 providing for free entry of “ common blue clay in casks, suitable for the manufacture of crucibles” as warranting the introduction of clay in bulk in any form, held that the style of the packing does not determine the dutiability of the commodity.

After the decision cited, Congress, by the act of 1909, changed the phraseology of this free-list provision to read as quoted above, so that provision was made in these two enactments of 1909 and 1913 for free entry of clay in two different forms. This makes manifest the fact that the attention of Congress was directed to the subject of the container when the act of 1909 was adopted, and Congress specifically restricted by the terms employed the free entry of clay to that imported in cases or casks.

There is no ambiguity in this language, and where there is no ambiguity the rule is well settled that the language of the- statute must control the courts. We may be able to see little occasion for making a distinction in rate between clay imported in bags and clay imported in casks, and yet we can conceive that there may have been in the mind of Congress some ground for such distinction. It suffices to say that the distinction was made and it does not lie within our power to set aside the plain terms of the statute. Authorities are hardly required, but a reference may be made to our own decisions in Breck & Son v. United States (2 Ct. Cust. Appls., 26; T. D. 31576), Maltus & Ware v. United States (6 Ct. Cust. Appls., 525; T. D. 36146), and United States v. Innis (7 Ct. Cust. Appls., 3; T. D. 36254), in which case it was said:

The language of the statute being plain and unambiguous, we are not warranted in disregarding its terms or in entering the field of speculation with a view to ascer, taining an unexpressed -intent or in ascribing to the language employed a meaning other than that which the plain terms import.

Citing Breck v. United States and Maltus & Ware, supra.

It results that the decision must be reversed, but that reliquidation is' directed only as to importations in barrels or casks.

Reversed.