International News Co. v. United States , 1 Cust. Ct. 296 ( 1938 )

Kincheloe, Judge:

The merchandise the subject of this suit consists of certain German-English and English-German dictionaries. They were assessed with duty at the rate of 15 per centum ad valorem under the provision in paragraph 1410 of the Tariff Act of 1930 for “bound books of all lands * * * not specially provided for, if of bona fide foreign authorship,” and they are claimed to be properly free of duty under the provision in paragraph 1630 of said tariff act for “books and pamphlets printed wholly or chiefly in languages other than English.”

The only question presented is whether or not these dictionaries are printed wholly or chiefly in languages other than English, as contemplated by the provision in paragraph 1630.

Plaintiff introduced one witness who testified he is the head of the German department of the importing company. His testimony, in substance, merely consisted of identifying samples of the merchandise at bar and identifying certain pages of these books as being in the German language. His testimony in our opinion is of little probative value toward a determination of the issue that is before us.

The samples of the dictionaries in question, which were admitted in evidence, we consider to be the best evidence in reaching a proper conclusion in the instant case. It has been frequently held by the courts that a sample of the merchandise in suit is a potent witness in classification cases (United States v. Marshall Field & Co., 19 C. C. P. A. 331, T. D. 45483, and cases therein cited). That observation is applicable in this case, and for that reason we shall describe in detail the contents of the five exhibits of the articles in question.

Exhibit 1 consists of an edition of Muret-Sanders English-German dictionary. The title page is in the German language. The following copyright page is entirely in German except “Copyright 1910.” The preface, comprising the next three pages, is written in both the English and the German languages, half of each page being used for the explanatory matter given in both languages. Then follow twenty-four pages of explanation of pictured signs, etc., which are arranged in both languages, English and German. Following that are 1,115 pages, comprising an English-German dictionary, consisting of alphabetical lists of English words, each followed by its German equivalent. Then follow two buff-colored, perforated pages, containing only German language. The last eight pages of the book, devoted to advertisements, are printed entirely in the German language.

Exhibit 2 is an English-German and German-English dictionary. One title page is in the German language, and one in English. All of the copyright page, except “copyright 1931,” is printed in German. The preface, of two pages, and “Preliminary Remarks,” also of two pages, are printed in the two languages, half of each page being devoted to each language. Then follow two pages of explanation of the signs and abbreviations used. The explanation is given in both of the languages. Following this are two pages of irregular English verbs, giving the present, past, and past participle of each. Following this, and constituting 365 pages, is an English-German dictionary, consisting of an alphabetical list of English words, each followed by its German equivalent. Then follow three pages containing tables of weights and measures. The printing of those pages contains both the English and the German languages.

Exhibit 3 is a pocket-size German-English dictionary and guide book of approximately 200 pages, 182 of which comprise a German-English dictionary, consisting of an alphabetical list of German words with their English equivalent. The copyright page is printed in German, with the exception of “copyright 1912” and “Printed in Germany.” With the exception of two pages which are devoted to maps of London, the remainder of the book, consisting of advertisements, is printed exclusively in the German language.

Exhibit 4 is a German-English dictionary. There are two title pages, one printed in German and one printed in English. The copyright page is printed in the German language, except “copyright 1910.” Four pages comprising the preface are divided so that the English language is printed on one half and the German language on the other half. A “Short Guide to German Pronunciation,” consisting of eight pages, has the explanatory matter printed in English, with illustrations, relating to pronunciation, in German. Following this are 35 pages of “Explanation of Signs, etc.,” which are printed in both German and English. The following 1,183 pages of the book consist of a German-English dictionary, with an alphabetical list of German words, each followed by its English equivalent. Following this is what might be considered a supplemental German-English dictionary, similar in its contents to the preceding dictionary. This supplemental German-English dictionary is preceded by a title page and copyright page printed in languages similar to the ones appearing at the beginning of the book. Following the dictionary portions of the book are twelve pages of advertisements printed entirely in the-German language.

Illustrative Exhibit 5 is a German-English and English-German dictionary. The title pages are printed in both the German and the-English languages. The preface and certain introductory matter, comprising eight pages, are printed in the German language. Four pages of explanation of word signs and abbreviations that follow are-printed in both German and English. The following 530 pages comprise an English-German dictionary, consisting of English words, each followed with its German equivalent. Then follow 17 pages devoted to the conjugation of verbs, the explanatory matter of which is-printed in German with illustrations and lists of certain verbs given in both English and German. The second part of the book consists, of a German-English dictionary, with introductory pages arranged and printed the same as those in the beginning of the book. The-dictionary portion of the second part consists of 484 pages with an alphabetical list of German words, each followed by its English equivalent. Concluding the book are eight pages of printed matter consisting of advertisements entirely in the German language.

The controlling case on the issue that is presented herein is the-case of United States v. Nelson & Sons (15 Ct. Cust. Appls. 268, T. D. 42465). That case arose under the Tariff Act of 1922, but the competing provisions in that act, paragraphs 1310 and 1529, contain the same language as that employed in the provisions of paragraphs 1410 and 1630 of the present tariff act, and which raise the issue here. The merchandise involved in the Nelson case, supra,. consisted of certain Spanish-English dictionaries. In interpreting the provision in paragraph 1529 of the Tariff Act of 1922 for “Books, or pamphlets printed wholly or chiefly in languages other than English,” the court indicated that the word “printed” was of great, significance in that provision. They held that the language of that provision must be considered in its plain meaning. We quote from that decision:

It will be observed that paragraph 1529, under which free entry is claimed,, designates “Books or pamphlets printed wholly or chiefly in languages other than English.” Unless we are to disregard the plain meaning of this language, the-question in each case must be not what they are to be used for, or how useful they may be, but how they are printed. The Congress has made this the test and we are not at liberty to substitute some other. If they are printed wholly or chiefly in languages other than English, they are free; if not, they are dutiable..

With that interpretation in mind, an examination of each of the-five exhibits before us discloses that all of them consist largely of explanatory matter and dictionary definitions printed in two languages,, the German and the English. In many instances, a great many more-words of one language are used to express the meaning or the thought conveyed by a single word in the other language. The court in the Nelson case, supra, also determined the construction to be placed upon such a condition. In that connection they said:

This does not mean that in ease of bilingual books, where words, sentences, stories, or other literary productions are printed in two languages, the exact number of letters or words used to express the same thought must be counted to ascertain whether the book be chiefly printed in one or the other language. If the same thought be expressed by ten words in one language and by six in another, nevertheless, the language must, for the purposes of the act, be held to be the same and to predominate in favor of neither.

The rule laid down by the court in the Nelson case, supra, is, if the preponderance of thought is expressed in one language, the book is chiefly in that language. The merchandise before us is German-English and English-German dictionaries, and the purpose of these dictionaries is to assist or guide readers and writers of the German language, or translators engaged in translating from German to English or from English to German. It is a fair conclusion to say that the preponderance of thought conveyed by these dictionaries is in both languages, and, under the cited authority, neither language can be said to predominate.

Counsel for the plaintiff argue in their brief that because the copyright pages, and the buff perforated pages, which are removable to be used to notify the publisher of errors, together with twelve to fifteen pages of advertisements appearing at the end of some of these volumes are in the German language, the preponderance of material is in the foreign language. In effect, counsel for the plaintiff argue that because there are more words in the German language in each of the volumes, they are properly within the provision for “Books or pamphlets printed wholly or chiefly in languages other than English”, the tariff classification which they urge in this case. That is positively contrary to the construction placed upon that provision by the court in the cited authority.

The volumes in question are bilingual dictionaries. An examination of each of the exhibits in evidence is convincing that the preponderance of thought is expressed in both the English and the German languages. To hold that the copyright page and a few pages of advertising were controlling to fix the classification of these dictionaries under the quoted provision of paragraph 1630 would be contradictory to the principle enunciated by the United States Court of Customs and Patent Appeals in the Nelson case, supra.

The protest is therefore overruled and the decision of the collector affirmed. Judgment will be rendered accordingly.