VANTINE & Co. v. UNITED STATES (No. 936).1 SILK MUFFLERS, WHAT NOT. "Muffler," as commonly understood, refers to something worn round the neck or throat, and, perhaps, mainly for warmth. The merchandise of the importation, as appears from the evidence, is usually worn about the shoulders rather than about the neck or throat. The collector's classification is not shown to be incorrect. They are not mufflers and were properly assessed as silk wearing apparel under paragraph 402, tariff act of 1909. United States Court of Customs Appeals, February 12, 1913. APPEAL from Board of United States General Appraisers, Abstract 28475 (T. D. 32507). [Affirmed.] McLaughlin, Russell, Coe & Sprague (Edward P. Sharretts of counsel) for appellants. William L. Wemple, Assistant Attorney General ( Thomas J. Doherty, special attorney, of counsel), for the United States. Before MONTGOMERY, SMITH, BARBER, DE VRIES, and MARTIN, Judges. BARBER, Judge delivered the opinion of the court: The merchandise is described in the invoice as "silk Vantine scarfs." They were returned by the appraiser as "silk wearing apparel," and assessed for duty as such by the collector at the rate of 60 per cent ad valorem under paragraph 402 of the tariff act of 1909. The importers protested, claiming they were dutiable as silk mufflers at the rate of 50 per cent ad valorem under paragraph 400 of the same act. The material portions of the respective paragraphs are as follows: Veils or veilings, and articles made wholly or in part of any of the and articles of wearing apparel of every description, 402. * foregoing, * * * * * *. 400. Handkerchiefs or mufflers composed wholly or in chief value of silk, finished or unfinished, if cut, not hemmed or hemmed only, * * * At the hearing before the board no evidence tending to show that the merchandise was commercially known as mufflers was offered. A sample of the importation received in evidence, and which is before us, consists of a woven silk article of light texture, about 45 inches square, and apparently hemmed on all sides. It is sufficiently transparent so as not to materially obstruct the vision of objects generally. The only witness introduced before the board was an employee of the importers, who testified that he had seen these articles, which he said were used more by ladies than others, worn by them. Quoting his language, "folded most generally in three-corner sort of shawl shape, to wrap around the neck that way (illustrating), over the shoulders. Use them mostly under fur capes or coats, sort of an opera muffler." He further testified that he never knew them to be used as veils, and that they were too heavy for that use. 1 Reported in T. D. 33196 (24 Treas. Dec., 256). The Board of General Appraisers overruled the protest and held that the sample introduced was similar to articles passed upon by them in a prior decision, Abstract 26277 (T. D. 31788), in which they held, as appears by the record in this case, that the articles there involved were similar to scarfs worn by ladies over the shoulders, and that on account of their size and character they were not the kind of silk mufflers provided for in paragraph 400, but were silk scarfs, dutiable as silk wearing apparel under paragraph 402. Other than as stated in the board's opinion we have no information as to the merchandise involved in the decision cited by the board. From what has appeared it is manifest that the disposition of this case depends upon the common meaning of the word "muffler" as used in paragraph 400. Some applicable definitions of "muffler" taken from the dictionaries are as follows: Standard: A scarf of wool or silk worn about the throat. Century: A wrapper or scarf for the throat, usually of wool or silk; a large handkerchief so used. Murray's New English Dictionary: A wrap or scarf (usually of wool of silk) worn round the neck or throat, by both men and women, for warmth. Worcester: A wrapper for the throat. The Encyclopædia Britannica (11th ed.) does not define "muffler," but does define "scarf" as A narrow wrap for the neck or shoulders; the term is a wide one, ranging from a light band of silk, muslin, or other material worn by women as a decorative part of their costume to a warm knitted muffler of wool to protect the throat from cold. Aided by the foregoing definitions we are of opinion that the common understanding of the word "muffler," as applied to an article of wearing apparel, refers to something worn round the neck or throat and, perhaps, mainly for warmth. In T. D. 10864, decided in 1891, the Board of General Appraisers defined a "muffler" as A covering for the face; a wrapper used to envelop the head or neck. The testimony referred to only shows some of the uses to which these so-called scarfs are put, and although the witness testified that they were sold to be used as a neck wrap for protection against the cold, we think that must be limited by his statement of the use to which he had actually seen them applied, concerning which we have already quoted his testimony, and which was that they are used to wrap not only the neck but also the shoulders, which latter use is beyond that to which we think mufflers are commonly applied. The size and texture of these Vantine scarfs, as evidenced by the exhibit before us, also suggest that they may have uses other than those mentioned by the importers' witness, and an inspection of the sample might well be held to warrant the belief that they would be used as automobile veils by ladies. But however this may be, we think the importers' evidence has not overcome the presumption that the collector's classification as silk wearing apparel was correct. The judgment of the Board of General Appraisers is affirmed. STEGEMANN v. UNITED STATES (No. 962).1 BATTERY RODS MADE OF CARBON. The rods of the importation, when fitted with brass caps, make poles of a galvanic battery of a kind, though not completed poles. Reviewing the legislative history of paragraph 95, tariff act of 1909, and the construction it has received by the courts, the intention is manifest that articles like those described are not subject to the duties imposed by that paragraph upon articles and wares composed of earthy or mineral substances. The merchandise is a manufacture of carbon and is classifiable and dutiable as a nonenumerated manufacture under paragraph 480, tariff act of 1909. United States Court of Customs Appeals, February 12, 1913. APPEAL from Board of United States General Appraisers, Abstract 28757 (T. D. 32584). [Reversed.] Comstock & Washburn (J. Stuart Tompkins of counsel) for appellant. William L. Wemple, Assistant Attorney General (Charles Duane. Baker, special attorney, of counsel), for the United States. Before MONTGOMERY, SMITH, BARBER, DE VRIES, and MARTIN, Judges. SMITH, Judge, delivered the opinion of the court: The collector of customs at the port of New York classified certain carbon battery rods as articles not decorated, composed in chief value of earthy or mineral substances and not specially provided for. The goods were accordingly assessed for duty at 35 per cent ad valorem under that part of paragraph 95 of the tariff act of 1909, which reads as follows: 95. Articles and wares composed wholly or in chief value of earthy or mineral substances, not specially provided for in this section, whether susceptible of decoration or not, if not decorated in any manner, thirty-five per centum ad valorem; * The importers protested that the goods were dutiable at 20 per cent ad valorem either as carbon not specially provided for under paragraph 95 or as nonenumerated manufactured articles under paragraph 480, and that if not dutiable at 20 per cent ad valorem they were dutiable at 30 per cent ad valorem under the last clause of para 1 Reported in T. D. 33197 (24 Treas. Dec., 238). graph 95. The parts of paragraph 95 and of 480 upon which the importers rely are as follows: * Carbon, not specially provided for in this section, twenty per centum * composed wholly or in chief value of carbon, ad valorem: electrodes, * thirty per centum ad valorem. * * * * 480. That there shall be levied, collected, and paid on the importation of all articles manufactured, in whole or in part, not provided for in this section, a duty of twenty per centum ad valorem. The Board of General Appraisers overruled the protest and the importers appealed. As appears from the evidence in the case the goods in question are rods or sticks of carbon made from an amorphous carbon produced from coal in retorts used for the manufacture of illuminating gas. This carbon, after being removed from the gas retorts, is first ground and then made up into round rods or sticks, such as those imported. The carbon rods or sticks are designed to form part of an appliance for the generation of electricity, and when fitted with a brass cap they are ready for use as one of the poles of a dry battery. It is not claimed and there is no evidence in the case showing that the importation is similar in material, quality, texture, or use to carbons for electric lighting. The Government contends that the goods are articles or wares composed of earthy or mineral substances and therefore dutiable under the express provisions of the first clause of paragraph 95. We can not agree with this contention, and do not think that any such interpretation of paragraph 95 can be fairly deduced either from the wording of the paragraph or from the history of the legislation. Prior to the passage of the tariff act of 1894 there was no provision for articles or wares composed of earthy or mineral substances. Paragraph 86 of that act, however, provided specifically for "articles composed of earthen or mineral substances, * * * not specially provided for," and levied on them a duty of 40 per cent ad valorem if decorated and 30 per cent ad valorem if not decorated. Under this provision customs officials classified carbon points, sticks or pencils made of lampblack, natural graphite, or other carbon products as articles composed of earthen or mineral substances and charged them with the duties which that classification required. In time a ruling to that effect by the collector of customs at New York was protested by Dingelstedt & Co., who claimed that carbon points were not properly classifiable as articles composed of earthen or mineral substances and that such goods, notwithstanding the language of paragraph 86, were still dutiable as nonenumerated manufactured articles. The protests were overruled by the board, but subsequently on appeal to the Circuit Court of Appeals that decision was reversed and the contention of Dingelstedt & Co. sustained. Judge Lacombe, speaking for the Circuit Court of Appeals, said: The phrase, "all articles composed of mineral substances," standing alone, is one of great breadth, and would cover a great multitude of articles of the most diverse character. But in the tariff act now before us the phrase does not stand alone, and it * * * is a familiar rule of interpretation that general descriptive terms are often restricted in their meaning by reason of their collocation with other words and phrases. The collocation of paragraph 86 would seem to indicate most strongly that the phrase, "all articles composed of * mineral substances," was not used in its broadest sense, but restricted to articles composed of mineral substances similar to those enumerated in the schedule, if not in the subdivision. * * * * * If the phrase relied on were to be given the broad construction contended for, it would be wholly unnecessary to provide specially for lava tips; they would be included in the general phrase. Evidently Congress understood that this general phrase was used by it in such a restricted sense that it would not cover the lava tips, and therefore they were specially provided for. Construed as above indicated, the paragraph would not cover the carbons. now before the court. (Dingelstedt & Company v. United States, 91 Fed., 112.) From that language it would seem that the Circuit Court of Appeals intended to decide and did decide definitely that a provision for "articles composed of earthen or mineral substances" was not broad enough to cover articles of carbon. Moreover, that there was a distinction between articles of carbon and articles composed of earthen or mineral substances was recognized by Congress itself when it passed paragraph 97 of the tariff act of 1897 and therein made specific provision for articles of carbon. Paragraph 97 was amendatory of paragraph 86 of the tariff act of 1894 and was as follows: 97. Articles and wares composed wholly or in chief value of earthy or mineral substances, or carbon, not specially provided for in this Act, if not decorated in any manner, thirty-five per centum ad valorem; if decorated, forty-five per centum ad valorem. Apparently under the impression that the change accomplished in existing law by paragraph 97 was intended to meet the Dingelstedt case and taking no account of Judge Lacombe's intimation therein that the laying of a higher rate of duty on articles if decorated and a lower rate if undecorated indicated an intention on the part of Congress to impose the duty prescribed only on wares susceptible of decoration, collectors of customs were led to classify sticks or rods of carbon for electric lighting as articles of carbon within the meaning of paragraph 97 of the tariff act of 1897. The Supreme Court, however, in the Downing case, held that carbon sticks, points, or rods, made for electric lamps, but not ready for use, were not articles of carbon within the intention of paragraph 97, inasmuch as they were not susceptible of decoration. United States v. Downing (201 U. S., 354-358). That decision removed articles of carbon not specially provided for and not susceptible of decoration from the operation of paragraph 97 and, save such as could be classified by similitude to carbons for electric lighting, returned them all to the classification which they had borne under the tariff act of 1894, namely, nonenumerated articles, manufactured in whole or in part. From all this it seems clear that prior to the passage of the present tariff act the following propositions had been expressly settled by the courts: |