U S v. ECKSTEIN(1911)
Assistant Attorney General Wemple and Mr. Martin T. Baldwin, Special Attorney, for petitioner.
[222 U.S. 130, 132] Messrs. Wade H. Ellis and John A. Kratz, Jr., for respondent.
Mr. Chief Justice White delivered the opinion of the court:
This suit concerns the correct classification, under the tariff act of July 24, 1897, chap. 11, 30 Stat. at L. 151, U. S. Comp. Stat. 1901, p. 1626, 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 States, 76 C. C. A. 638, 146 Fed. 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 [222 U.S. 130, 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 clause.
The goods were classified by the collector at the port of New York as 'similar' to silk yarn, and reference was made to prior decisions, viz.: G. A. 4,939, 5,081, and 5,257. Duty was collected at the rate of '30 per centum 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 per cent, 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 non- [222 U.S. 130, 135] enumerated manufactured article at the rate of 20 per centum ad valorem, 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 by similitude 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 Fed. 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 Case, 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:
This writ of certiorari was thereupon allowed. [222 U.S. 130, 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:
In the brief for the government it is said: 'It is well established that the requirements of the similitude clause of 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.S. 125 , 27 L. ed. 675, 2 Sup. Ct. Rep. 371.
As said by the circuit court of appeals for the second circuit, in United States v. Roesseler & H. Chemical Co. 70 C. C. A. 346, 137 Fed. 770: 'It must be borne in mind that the statute does not require identity; if that were necessary, the statute would have no raison d'etre.'
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 [36 State. at L. 60, chap. 6, U. S. Comp. Stat. Supp. 1909, p. 717], special provision is made for these things in paragraph 405, as for 'yarns, threads, filaments of artificial or imitation silk, or [222 U.S. 130, 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 because '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:
As to use: Paragraph 302 of the act covers cotton yarns regardless of their use. Thus, yarns have four broad, general uses, viz.: knitting, weaving, sowing, 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 [222 U.S. 130, 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 affirmed.