United States v. Belgam Corp.

DISSENTING OPINION

Bland, Judge:

I regret that I cannot agree with either the conclusion or the reasoning of the majority in this decision.

In Hawley & Letzerich et al. v. United States, 19 C. C. P. A. (Customs) 47, T. D. 44893, this court held definitely that the wiping rags involved were “crude'’. I dissented there.

In the present case, attention was called to the fact that in Pacific Iron & Metal Co. et al. v. United States, 15 Ct. Cust. Appls. 433, T. D. 42605, this court held that wipers or wiping rags which had not been processed as much as the ones at bar were nonenumerated manufactured articles; that they had been processed with the definite purpose in view of mailing a new article of commerce — wipers; and that the processing was not a means of cleansing or getting the article by itself.

It is my understanding of the present decision that the majority does not intend to hold that the wipers are crude; but that an interpretation of the paragraph is given which requires that rags, even though not crude, be included in the term “paper stock, crude”, for the reason that they are specifically named in the including phrase. Following the decision in Wilbur-Ellis Co. et al. v. United States, 18 C. C. P. A. (Customs) 472, T. D. 44762, the majority holds that since “paper stock” is a designation by use, we must go to the chief use of the article at tbe time Congress used tbe term in order to ascertain if tbe imported merchandise is paper stock.

Although regrettable anomalies result in bolding that tbe dutiable status of one class of merchandise shall be determined by its use at tbe time of importation and that of another almost identical class of merchandise be' determined as of tbe date of tbe enactment of tbe statute, I am not disposed here to disagree with the majority as to its finding in this respect. It is simply a case of two well-settled rules'being in conflict: First, tbe meaning of terms must be ascertained at tbe time of their use by Congress; second, tariff acts are made for tbe future.

My trouble in tbe instant case arises from the fact that tbe majority by construing the paragraph as above indicated, have eliminated tbe word “crude” which Congress deliberately put in tbe paragraph. It may be suggested that tbe word “crude” may be given application to materials other than- those named in the including phrase. I am not so sure of this, but I am sure that the wipers are not now or were not at the time of the passage of the act, crude rags, and I am equally of the impression that they were not rags at all within the meaning of that paragraph. We held in the Pacific Iron & Metal Co. case, supra, that the wipers there involved were junk, old, before being processed. They also were paper stock, crude, then, if chiefly used for paper making. If they were crude then, they certainly are not crude now. The old rags in this instance have been processed until they are finished manufactured articles ready for use. They have been bleached and otherwise made ready for wiping oil, and while broadly one may call them “wiping rags”, they are interchangeably called “wipers”.

It is conceded in this case that these articles are not paper stock today but are wipers.

It will be noticed that the paragraph reads: “paper stock, crude, of every description, including all * * * rags”. I am not so sure but what if the interpretation of the paragraph which the majority now have decided upon is to maintain, “all” rags may be free irrespective of their paper-stock character. Let us suppose that goods identical with those at bar come in without having been processed and the proof shows that such goods are not used chiefly for paper stock. Would they be free under this paragraph? There certainly is some doubt about this question in view of the holding in the Hawley cfe Letzerich case, supra, that the term in the latter part of the paragraph “used chiefly for making paper” relates only to “old gunny bags”. It might be contended that the term “all rags” might not include non-paper-making wipers under the interpretation of the majority on account of the term “paper stock, crude”. That is probably true if we give any effect to the word “crude”. But the majority declines to permit the word “crude” to modify “rags”. The meaning of “paper stock” must be determined as of 1922, but I know of no authority for holding that the meaning of the word “crude” should be ascertained as of 1922 since “crude” is not an eo nomine designation by use.

In conclusion I must point out that it certainly was not the intent of Congress in the enactment of paragraph 1651, Tariff Act of 1922, to permit the free importation of enormous quantities of finished wipers, used almost solely for wiping purposes, simply because some time someone might be able to prove by certain witnesses that in 1922 they were chiefly used for making paper. It brings about a result which I think could be and should be avoided. It could be avoided, even under the interpretation of the majority, by holding that the wipers in this instance are not rags within the meaning of the paragraph.