Section 7 of the Dingley Tariff Act of June 24, 1897, c. 11, 30
Stat. 159, known as the similitude clause, does not require that
there shall be similarity of material, quality, texture, and use in
all four particulars, but a substantial similarity in one
particular may be adequate to classify an article thereunder.
Imitation horsehair was properly classified under the similitude
clause with cotton yarn enumerated in paragraph 302 of the Tariff
Act instead of with silk yarn under paragraph 385, there being a
substantial similitude with the former both as to material and use,
even if not as to quality or texture.
167 F. 802 affirmed.
The facts, which involve the correct classification, under the
Tariff Act of 1897 of artificial horsehair, are stated in the
Page 222 U. S. 133
MR. CHIEF JUSTICE WHITE delivered the opinion of the Court.
This suit concerns the correct classification, under the Tariff
Act of July 24, 1897, c. 11, 30 Stat. 151, of artificial or
imitation horsehair, imported by the respondent into the port of
New York on October 5, 1904.
Artificial or imitation horsehair is made from cotton waste by
two processes, the Fremery and the Chardonnet. By the first
process, referred to in the opinion of the Circuit Court of Appeals
for the Second Circuit in Hardt von Bernuth & Co. v. United
146 F. 61, the cotton waste is dissolved in a solution
of cup-ammonium, a salt of copper and ammonia, and this solution is
forced through fine openings, discharging into a bath of acetic
acid, forming threads of cellulose. By the second process, the
cotton waste, or raw cotton, is at first turned into gun cotton.
This gun cotton is then mixed with alcohol and ether and dissolved
into a liquid, and this liquid is forced by pressure through pipes
at the end of which there are a number of small openings. The
material is subsequently subjected to a process which it is not
necessary to describe.
In the manufacture under both processes, the single filaments
are not allowed to solidify, although they are made
Page 222 U. S. 134
to stick together, whereas, in the manufacture by the like
process of artificial silk, the fine filaments are grouped and
twisted together and solidified. The imitation horsehair is usually
died black, imported in skeins, and sometimes on spools.
Imitation horsehair is not expressly mentioned in the Tariff Act
of 1897, probably because it was not commercially known when the
act was passed.
The provisions of the Act of 1897 which are required to be
considered in the determination of the question to be decided,
briefly, are these, viz.:
Section 6, providing for duty on
nonenumerated articles; § 7, the "similitude clause;" paragraph
302, the cotton yarn clause, and paragraph 385, the silk yarn
The goods were classified by the collector at the port of New
York as "similar" to silk yarn, and reference was made to prior
G.A. 4,939, 5,081, and 5,257. Duty was
collected at the rate of
"30 percentum ad valorem,
under paragraph 385, the silk
yarn provision, as a result of applying § 7 of the 'similitude
clause.' The importer protested, claiming the merchandise to be
dutiable at the rate provided by paragraph 302, by similitude to
cotton yarn, or at the rate of 20 percent, under § 6, as a
nonenumerated manufactured article."
Before the Board of General Appraisers, testimony was seemingly
directed on the part of the importers to establishing that the
material was, and on the part of the government that it was not, a
yarn. On June 22, 1906, the board reversed the action of the
collector and sustained the alternative claim of the importers that
the merchandise was dutiable as a nonenumerated manufactured
article under § 6. G.A. 6,387, T.D. 27,442. It is worthy of remark,
however, that, pending the hearing before the board, the Secretary
of the Treasury, in Treasury Decisions 27,350, May 15, 1906,
directed collectors of customs that duty should be assessed on
imitation horsehair as a nonenumerated
Page 222 U. S. 135
manufactured article at the rate of 20 percentum ad
under § 6.
By appropriate proceedings, Eckstein, the respondent here,
invoked the exercise of jurisdiction by the Circuit Court for the
Southern District of New York for the review of questions of law
and fact involved in the decision of the Board of General
Appraisers, and in that court contended that the merchandise was a
yarn, and was by similitude dutiable under paragraph 302 as a
cotton yarn. The court, after hearing additional testimony, decided
that the merchandise was not yarn, could not
be assessed as cotton yarn or yarn of any other kind, and that the
board properly assessed it under § 6 as a manufactured article not
otherwise provided for. 160 F. 287.
The circuit court of appeals reversed the judgment, and held
that the merchandise should be classified under § 7 of the act as a
nonenumerated article similar to cotton yarn, and the duty should
be assessed under the paragraph (302) relating to cotton yarn.
Referring to its previous opinion in the Bernuth
already referred to, wherein it was held that artificial silk,
which, as we have already said, is made by similar processes,
should be so classified, the court said:
"The judge of the circuit court affirmed the government's
classification, distinguishing that case on the ground that
artificial silk was found to be a yarn, whereas artificial
horsehair, being solid, and not composed of twisted or spun
filaments, is not a yarn. Admitting that this is so, still,
artificial horsehair is like cotton yarn in material, each being
composed almost entirely of cellulose, and like it in use, being
largely used as glazed cotton is in making hat braids, shoe laces,
binding braids, tapes, and imitation horsehair. We think these
resemblances establish its similitude to cotton yarn even if the
texture of the two articles is different."
This writ of certiorari was thereupon allowed.
Page 222 U. S. 136
The question is simply this: did the circuit court of appeals
properly classify the merchandise?
The portion of § 7, the similitude clause of the Act of 1897,
with which we are concerned, is as follows:
"Section 7. That each and every imported article not enumerated
in this Act which is similar, either in material, quality, texture,
or the use to which it may be applied, to any article enumerated in
this Act as chargeable with duty, shall pay the same rate of duty
which is levied on the enumerated article which it most resembles
in any of the particulars before mentioned. . . ."
In the brief for the government, it is said:
"It is well established that the requirements of the similitude
clause of section 7 are satisfied if there be shown a proper
similarity in any one of the four particulars -- material, quality,
texture, or use --"
enumerated in the section. Arthur v. Fox, 108 U.
As said by the Circuit Court of Appeals for the Second Circuit
in United States v. Roesseler,
137 F. 770: "It must be
borne in mind that the statute does not require identity; if that
were necessary, the statute would have no raison
The decisions of the Board of General Appraisers and of the
circuit court were placed upon the ground that the merchandise
produced by a chemical process was not structurally a yarn, such as
is produced by the mechanical process of spinning. It was not, by
either the board or the court, found that there was no substantial
similarity to cotton yarn in material or use. We think the evidence
justifies the contention of counsel for the importer that
commercially, the merchandise is a yarn. As we have before said,
the government originally contended that it was a yarn, and it is
reflex significance that, in the Tariff Act of 1909 (August 5,
1909, 36 Stat. 11, c. 6), special provision is made for these
things in paragraph 405, as for
"yarns, threads, filaments of artificial or imitation silk,
Page 222 U. S. 137
of artificial or imitation horsehair, by whatever name known,
and by whatever process made."
But assuming, for argument sake, as did the circuit court of
appeals, that the merchandise is not a yarn, let us consider, even
if the texture of the articles, be different, whether it was
correctly held that the similitude to cotton yarn was established
"artificial horsehair is like cotton yarn in material, each
being composed almost entirely of cellulose, and like it in use,
being largely used, as glazed cotton is, in making hat braids, shoe
laces, binding braids, tapes, and imitation horsehair."
As to material:
respondent does not claim similarity
between the merchandise in question and cotton because cellulose is
found in each; the contention is that there is similarity in
material because the proportion of the ingredients -- cellulose,
water, etc., -- is the same in the merchandise in question as the
proportion of the same ingredients in cotton. Counsel say, and the
contention is, we think, supported by the evidence:
"The goods are made of cotton fibers. Cotton consists of pure
cellulose with a small percentage of hydroscopic water. The
merchandise in suit is pure cellulose with a small percentage of
hydroscopic water. It differs only from the cotton fiber in that
the cell structure has been broken down. Other than this, cotton
and the merchandise in suit are identical in material. No element
is found in cotton which is not present in this merchandise, no
element is in this merchandise which is not found in cotton, and
the proportion of elements in both is approximately the same."
As to use:
Paragraph 302 of the act covers cotton yarns
regardless of their use. Thus, yarns have four broad, general uses,
knitting, weaving, sewing, and braiding, and
manifestly a given cotton yarn could not be used for all the
purposes of all cotton yarns. In the group of hard-twisted yarns is
found cotton yarn, used in the production
Page 222 U. S. 138
of hat braids, and in the same commercial group appears the
merchandise in suit. One of the many varieties of cotton yarn used
in making hat braids is what is known as glazed or polished cotton
yarn. It is asserted and not denied that such merchandise has been
uniformly classified for customs purposes as a cotton yarn, and so
far from being a highly specialized and unusual commodity, it has
been an important article of commerce for at least thirty years.
However, while imitation horsehair is generally used in the
production of hat braids, and is used interchangeably with glazed
cotton yarn for such purpose, it has, in common with cotton yarns,
other uses, which are referred to in the opinion of the circuit
court of appeals.
Upon the whole, we are of opinion that there is a substantial
statutory similitude between cotton yarns enumerated in paragraph
302 and the merchandise in question, both as to material and use.
As the requirement of the statute is not that there shall be
similarity in all of the four particulars enumerated in § 7, but a
substantial similarity in one of those particulars may be adequate,
the classification adopted by the circuit court of appeals was
proper, and its judgment is therefore