Cotton featherstitch braids are properly assessed at sixty
percentum as braids under the trimming schedule, par. 339, and not
at forty-five percentum as tapes or bindings under notions
schedule, par. 320 of the Tariff Act of July 24, 1897.
Where a conflict which had existed under prior tariff acts as to
the classification of articles had been settled, Congress will not
be presumed, in enacting a new tariff, to renew the conflict by not
adhering to the commercial and tariff meaning of the terms as it
had been settled.
The soundness of the judicial construction of a statute is
reinforced by the fact that it had been the construction given by
the Executive Department charged with its enforcement ever since
its adoption.
172 F. 342 reversed; 159 F. 294 affirmed.
The facts, which involve t he classification of cotton
featherstitch braids under the Tariff Act of 1897, are stated in
the opinion.
MR. CHIEF JUSTICE WHITE delivered the opinion of the Court.
This case concerns the proper classification of merchandise
imported in 1899, and subsequent years, by the
Page 223 U. S. 192
respondent at the port of New York, invoiced as "cotton
featherstitch braids." The goods consisted of articles ranging
variously from about one-fourth to one-half of an inch in width,
loom woven, of white or colored threads throughout, or of mixed
white and variously colored threads of cotton or other vegetable
fiber, and ornamented with raised figures in various designs, some
of which had plain and others scalloped or looped edges. They were
officially appraised as "cotton braids -- sixty percentum;" and
were accordingly classified by the collector as "braids" under
paragraph 339 of the Tariff Act of July 24, 1897, generally
referred to as the "trimmings" schedule, the pertinent provision of
which is as follows:
"Embroideries and all trimmings, including braids, edgings,
insertings, flouncings, galloons, gorings, and bands, . . .
composed wholly or in chief value of flax, cotton, or other
vegetable fiber, and not elsewhere specially provided for in this
Act."
Asserting that the articles should not have been assessed at 60
percent, but were dutiable at the rate of 45 percent
ad
valorem under paragraph 320 of said act, usually styled the
"notions" schedule, as "bindings" or as "tapes . . . made of cotton
or other vegetable fiber," the importers duly protested, and the
question of the proper classification was considered by the Board
of General Appraisers. That body, on July 24, 1906, sustained the
decision of the collector upon the authority of a ruling made in
the case of Straus Brothers & Company wherein the board but
acted upon the evidence taken in and applied the ruling made in
what is known as the
Vom Baur case. The importers carried
the case to the circuit court, and in that court additional
evidence was introduced by both parties. Upon such additional
evidence and the evidence taken before the board, the decision of
the board was affirmed on November 23, 1907. 159 F. 294. On appeal,
however, the circuit court of appeals
Page 223 U. S. 193
held the merchandise dutiable at 45 percent
ad valorem
as "binding," under paragraph 320, and the decision of the circuit
court was reversed. 172 F. 342. This writ of certiorari was then
allowed.
Under the Tariff Acts of 1890 (May 9, 1890, 26 Stat. 567, c.
1244), and 1894 (August 27, 1894, 28 Stat. 509, c. 349), braids
were enumerated in the "notions" schedule, which carried a lower
rate of duty than articles in the "trimmings" schedule.
In re Dieckerhoff, 54 F. 161, involved a review of the
decision of the Board of General Appraisers (G.A. 1301) in the
matter of an importation, in 1891, of articles similar to those
here in question, dutiable under the Tariff Act of 1890. The
controversy was whether the goods should have been assessed at the
rate of 60 percent
ad valorem as cotton trimmings, under
the "trimmings" schedule, paragraph 373 of the Tariff Act of 1890,
or assessed as cotton braids at 35 cents per pound, under the
"notions" schedule of the same act. The government, insisting on
the higher duty, contended that the articles should be classified
as cotton trimmings, and were not braids, because to be such, they
must be braided. The importers, however, contending for the lower
duty, urged that the goods were commonly known as featherstitch
braids, and should be classified as braids, and thus be brought
under the notion schedule bearing the lower duty. The court
overruled the contention of the government, accepted the commercial
designation, and sustained the ruling of the Board of General
Appraisers that the goods were braids, and dutiable as such. The
government acquiesced in this decision. The administrative rule
therefore under the Tariff Act of 1890, was to classify the
articles in question as braids embraced within the notions
schedule, and thereby cause them to carry a lower duty than they
would have carried had they been embraced in the trimmings
schedule, and under the Act of 1894, the
Page 223 U. S. 194
same practice was pursued. When, by the Act of 1897, upon which
this case depends, braids were taken out of the notions schedule
carrying a lower duty, and put in the trimmings schedule, which
carried the higher, the articles continued to be classed as braids,
and consequently, because of the change in the law, were assessed
for a higher duty. And this administrative construction was applied
under the Act of 1897 for a considerable number of years.
See G.A. 4326 (T.D. 20,515), decided January 3, 1899, and
G.A. 4929 (T.D. 23,073), decided May 27, 1901.
When the latter decision was rendered (May 27, 1901), however,
the importer appealed from the ruling, and the Circuit Court for
the Southern District of New York, in
Steinhardt v. United
States, 121 F. 442, reversed the decision of the Board of
General Appraisers and held that the articles were dutiable as
bindings under the notions schedule, and not as braids under the
trimmings schedule. The reasoning was this -- the court said:
"The articles in question appear to be narrow woven tapes of
cotton, used largely for covering the seams of underwear and
waists. The Standard Dictionary gives one definition of a 'braid'
as 'a narrow, flat tape or woven strip for binding the edges of
fabrics or for ornamenting them.' If these articles are braids
within this or a like definition, they are also bindings or tapes,
within paragraph 320."
Thus, finding the articles to be within the dictionary
definition of both braids and bindings, as the trimmings schedule
in which braids were embraced, paragraph 339 contained a general
qualification that articles therein named should be liable to the
duty therein specified when "not elsewhere specially provided for
in this act," the court held that as the braids in question were
within the dictionary definition of bindings, they were therefore
otherwise provided for, and should be classed within the notion
schedule, paragraph 320, and carry the lower duty. The government
did not appeal from this decision, under the
Page 223 U. S. 195
instructions of the Attorney General. Such instructions,
however, expressly directed that, in all future importations, the
decision should not be applied, but that duty should be assessed
according to the prior practice, so that a test case might be made.
T.D. 24,269. It is persuasively indicated by what we shall
hereafter state that this course was followed, because the record
in the
Steinhardt case did not contain what was deemed to
be adequate proof as to the accepted commercial designation of the
articles to afford a proper basis for testing the matter in that
case -- a deficiency which, it may well be surmised, arose from the
belief on the part of the government, in making up that case, that
the settled administrative practice, based upon the previous
judicial construction, would not be departed from.
The classification again came under consideration in what is
known as the
Vom Baur case, and much testimony was taken
before the board
"for the purpose of showing that the articles were commercially
known as braids, and were so commercially known at and prior to the
passage of the Tariff Act of 1897, and therefore dutiable under
paragraph 339."
In an exhaustive review of the evidence in that case, the board
held that the testimony established that there had been no change
in the commercial designation of the articles since 1892 at which
time, as heretofore stated, the goods were commercially known as
"featherstitch braids," and such had been judicially determined to
be the case by the circuit court in the
Dieckerhoff case,
supra. The board pointed out that, in the case before it,
the importers had taken a position the opposite to that which had
been assumed by the importers in the
Dieckerhoff case,
since, in that case, for the purpose of obtaining the lower duty
under the Act of 1890, they had insisted that the articles were
commercially known as braids, and were dutiable as such, and in the
case under consideration, the contention was that there was no
general and definite
Page 223 U. S. 196
trade designation of the articles as braids, since they were
known as bindings and tapes, as well as by the name of
featherstitch braids, and that they were in fact tapes, having been
produced by weaving instead of by braiding.
The following questions were considered by the board in
connection with an extended review of the testimony:
"First. Were these goods known in the trade and commerce of this
country at and immediately prior to July 24, 1897, as
'braids?'"
"Second. If the goods were commercially known as 'braids' at and
immediately prior to July 24, 1897, are they dutiable under
paragraph 339?"
On the record before it, it was found "as matter of fact:"
1. That the goods in question were generally known in the
wholesale trade of the United States at and prior to July 24, 1897,
as "featherstitch braids."
2. That the term "featherstitch braids" was the only general
commercial name under which the goods were known in the trade and
commerce of this country at and immediately prior to July 24, 1897,
and that the terms "seam bindings," "finishing tapes," and others
are subordinate names which have not been generally employed to
designate these goods.
The board concluded its opinion as follows:
"In view of these findings, we think the case is distinguished
from the
Steinhardt case,
supra. That case only
decided that, if the articles were braids within the
lexicographical definitions, they were also bindings or tapes, and
were therefore more specifically provided for in paragraph 320.
There was no satisfactory testimony in the case as to the
commercial designation of the articles, whereas it has now been
shown by competent testimony that they are generally known in the
commerce of this country as 'braids,' and not as 'tapes' or
'bindings.' The circuit court of appeals, in
Hiller v. United
States,, 106 F. 73, decided that cotton braids of all
Page 223 U. S. 197
classes are included within the scope of paragraph 339. The
decision of the court is in part as follows:"
"A comparison of the provisions of the cotton schedules in the
Acts of 1894 and 1897 in regard to the classification of braids is,
however, quite significant of the intent of Congress. Paragraph 263
of the Act of 1894, which corresponds to paragraph 320 of the Act
of 1897, imposed a duty of 45 percent upon cords, braids, etc.,
made of cotton, but braids are omitted in paragraph 320 of the new
act, which imposes the same duty. Paragraph 276 of the Act of 1894,
which corresponded to paragraph 329 of the new act, omitted braids,
which was inserted in paragraph 339 -- the one under consideration.
A comparison of the two acts indicates that Congress intentionally
took braids out of the 45 percent paragraph, where it had been in
1894, and put the article into a paragraph imposing the higher rate
of duty, and that it intended to impose the rate upon the articles,
irrespective of the use to which they might be applied."
"Under this decision, featherstitch braids, which were held in
the
Dieckerhoff case to be dutiable as 'braids' under the
Act of 1890, and which we have found were commercially known as
'braids' at the time of the passage of the Act of July 24, 1897,
are, in our opinion, dutiable as assessed under the provision of
paragraph 339 of the Act of July 24, 1897."
On the appeal of the importers, the decision was affirmed, "on
the opinion of the Board," which is set out verbatim in the report
of the case.
Vom Baur v. United States, 141 F. 439. An
appeal was taken from the decision, but it was subsequently
dismissed without prejudice.
As already stated, the Board of General Appraisers, in the case
at bar, rested their decision upon the evidence taken and its
ruling in the
Vom Baur case. As also stated, that evidence
was supplemented in the circuit
Page 223 U. S. 198
court by evidence taken on behalf of both parties to the
controversy. Such further testimony, it was observed by the circuit
court, did not tend to weaken the conclusion reached by the board,
"that these goods were known generally in the trade as
featherstitch braids prior to 1897," but "in truth it serves to
strengthen it."
In the opinion of the circuit court of appeals, reversing the
decision of the circuit court, the court referred to the
"merchandise in question" as consisting "of narrow woven strips
bearing
featherstitch' or `herringbone' oramentation," and
substantially conceded that the circuit court and Board of
Appraisers correctly decided "that, prior to 1897 it was generally
commercially designated as `featherstitch braid.'" Accepting this
commercial designation, however, and evidently relying upon the
reasoning of the opinion in the Steinhardt case, it was in
effect held that the braids in question were not used "for
ornamental purposes solely," but, "being used for the purpose of
binding seams, are, in our opinion, the kind of braids properly
called bindings." Referring to paragraph 320 of the Act of 1897 as
the "notions" paragraph, and paragraph 339 as the "trimmings"
paragraph, the court then said:
"And we think that it may fairly be assumed that, when Congress
inserted the word 'bindings' in the 'notions' paragraph, and
transferred the word 'braid' to the 'trimmings' paragraph, with
words of qualification, it intended to embrace in the latter
paragraph only such braids as were not bindings."
"If the articles are bindings as well as braids, the provision
in the 'notions' paragraph is the more specific. Bindings are
embraced without the words of restriction or qualification. These
articles as bindings are necessarily included, and they are
specially provided for elsewhere than in paragraph 339."
There is no substantial dispute as to the correctness of the
findings of the Board of General Appraisers that
Page 223 U. S. 199
the goods in question were generally known in the wholesale
trade of the United States at and prior to July 24, 1897, as
"featherstitch braids," and at such period that designation "was
the only general commercial name under which the goods were known
in the trade and commerce of this country." That the Tariff Act of
1897 was drafted and was adopted by Congress in the light of the
then fixed practice of the government to assess such articles as
"braids," irrespective of the subsidiary names which may have been
applied by some who used the articles, or without regard to some of
the special uses of which they were susceptible of being put, is
not open to reasonable contention. This being the case, we are
unable to conclude that Congress, knowing the commercial as well as
the tariff designation of the articles, reemployed the term
"braids" in the Act of 1897, and yet intended that some of the
articles embraced within the commercial designation should be taken
out of that designation and treated, for the purpose of assessment
of duty, as being that which they were not because they possessed
features of utility as well as ornamentation.
When the contentions which had arisen concerning the dutiable
character of the articles under the Act of 1890 are taken into
view, and the claims there made by the importers as to their nature
and character, for the purpose of subjecting them to a lower duty,
are borne in mind, we think the shifting of braids from the lower
duty of the notions schedule to the higher duty of the trimmings
schedule, without any change of phraseology to indicate that it was
the purpose to depart from the settled commercial meaning of the
word "braids," plainly manifested the purpose of Congress to accept
that designation and make it applicable, and hence to subject the
articles, under their accepted designation, to the higher duty
placed upon the articles embraced in the schedule to which braids
were transferred. Any other view would render
Page 223 U. S. 200
necessary the conclusion that it was the intention of Congress,
in using the word "braids," not to adhere to the then well settled
commercial and tariff meaning of the term, but to use the word in a
sense different from that which was accepted, for the purpose of
renewing a conflict as to the proper meaning of the word, which had
been flagrant under the prior act. While these conclusions need no
reinforcement, their soundness is additionally and cogently
sustained by the construction given to the act upon its adoption
and the consequent administrative enforcement of the same which
prevailed without question for so considerable a time.
The decree of the circuit court of appeals is reversed, and
that of the Circuit Court is affirmed, and the case is remanded to
the Circuit Court of the United States for the Southern District of
New York.