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before the Board took the ground that, if not free under paragraph 633, their goods should pay the Russian duty. The Circuit Court held that these importations and also one from Germany (ex. "Moltke") were free of the countervailing duty of paragraph 626 because they were more specifically referred to in paragraph 633 as "Paraffin.”
We are unable to concur in this conclusion. It might, indeed, be a fairly arguable question whether the designation "all such products of petroleum as are commercially known as paraffin" is or is not more specific than the designation "all such products of petroleum as are produced in a country which imposes duty on similar products exported from the United States"; but we do not find it necessary to decide this question. The fundamental rule of interpretation is to ascertain the intent of Congress, and the language used in the statute evidences that intent quite plainly. It is no doubt the general rule that a proviso to a particular section does not apply to other sections, and that it is to be construed with reference to the immediately preceding parts of the clause to which it is attached. But such rule is not controlling, especially in such composite structures as tariff and appropriation acts. In U. S. v. Babbit, 1 Black, 55 17 L. Ed. 94, it was held that the particular proviso then under consideration was "not limited in its effect to the section where it is found, but that it was affirmed by Congress as an independent proposition, applying alike to all officers of "this class," including officers not mentioned in the section which contained the proviso. The true rule seems to be that, "while the position of a proviso in a statute has a great and sometimes a controlling influence upon the extent of its application, yet the inference from its position cannot overrule its plain general intent." Lewis' Sutherland Statutory Construction (2d Ed.) § 352, and authorities cited.
It will be observed that in paragraph 626 Congress enumerates as free of duty "petroleum, crude or refined." When, however, it provides in the same section for a retaliatory duty, it does not repeat the phrase "petroleum, crude or refined," nor does it import that phrase into the proviso by the use of the words "such petroleum." On the contrary, it makes a highly significant change of phraseology, laying retaliatory duty on crude petroleum and on "the products of crude petroleum." There are other products of crude petroleum besides refined petroleum, and the broad language it has used showed that Congress intended by the proviso to reach more than the crude and refined petroleum of paragraph 626. Any construction which would restrict the proviso to the articles already mentioned in the section would defeat that intent. Manifestly, Congress sought to induce reciprocity in petroleum products by discriminating against any country which discriminated against the United States. It has used language apt to express that intent, and we see no reason why the proviso should not be read into every section of the tariff act which enumerates a product of petroleum. The two sections may fairly be read together to effect such intent, as follows:
"Articles known commercially as paraffin shall have free entry, but if any of them is a product of crude petroleum-a product of which crude petroleum
is the component of chief value-and was produced in a country which lays duty," etc., "it shall pay an equal duty."
The evidence in this case would seem to indicate that all commercial paraffin is not a product of petroleum. As indicated above, two varieties are now under consideration: Paraffin Liquid and Paraffin Molle. The liquid came from Germany, accompanied by a declaration of the manufacturer that the "product consists of a mixture of ceresia and refined petroleum, * * * and that the ceresia represents the greater value and the refined petroleum the smaller value." Ceresia or ceresin is a mineral wax, and paragraph 695, referred to in the protest, accords free entry to "wax, vegetable or mineral." It is not petroleum, nor produced from petroleum. The government chemist testified before the Board that he had examined the liquid paraffin, and did not find any traces of ceresin in it; that it was a distillation product of petroleum, composed entirely of petroleum. Upon this testimony, and there was no other as to the nature of liquid paraffin, the finding of the Board that it was a product of petroleum is controlling. It should pay a countervailing duty under the retaliatory clause.
The Paraffin Molle was accompanied by a sworn statement from the manufacturer or shipper that it consisted of "a mixture of ceresin and refined petroleum, * * * and that in the manufacture ceresin represents the greater value and refined petroleum the smaller value." The government chemist confirms this by testifying that his analysis showed that it was a product of four parts liquid paraffin mixed with one part of ceresia. There was evidence, and the Board finds, that the article was probably identical, although under another name, with the albolene which was before the Circuit Court in Ropes v. U. S., 123 Fed. 990, and was held not chargeable with the countervailing duty because it was not composed in chief value of petroleum. There was evidence tending to show the value of ceresin in Germany and the value of liquid paraffin in Belgium, but none showing the value of both components in either country. The determination as to component material of chief value is to be in reference to the values of the components in the country where the compound is produced. There is nothing, therefore, in the record to overcome the sworn statement, which came with the goods; and the finding of the Board that the Paraffin Molle is composed in chief value of petroleum is without testimony to support it, and must be disregarded.
The result is that the particular Paraffin Molle now under consideration cannot be held subject to the retaliatory duty, since it is not, shown to be a product of petroleum.
The decision of the Circuit Court in the Schoellkopf Case must, therefore also be reversed.
COXE, Circuit Judge (dissenting). I cannot agree with the majority of the court as I think Judge Wheeler's decision was right and should be affirmed. Paraffin appears eo nomine on the free list. Paraffin is a well known article of commerce not necessarily a product of petroleum, as the court has found in the case at bar. When paraffin
comes to our ports and the collector finds it specifically mentioned, without condition or qualification, in the tariff act, it would seem that he need look no further-his work is done. I cannot believe that in order to levy duty upon an article thus declared free, resort can be had to the mere proviso of a separate and distinct paragraph in which that article is not named at all. Paraffin is either crude or refined petroleum, or it is not. If not, paragraph 626, Free List, Tariff Act July 24, 1897, c. 11, § 2, 30 Stat. 199 [U. S. Comp. St. 1901, p. 1685], has no application whatever. If it be refined petroleum it is entitled to free entry unless dutiable under the proviso and its status for tariff purposes is fixed; no further legislation is needed.
The subsequent specific provision for paraffin by name without the words "not otherwise specifically provided for" makes it clear that Congress intended to admit this particular article free of duty notwithstanding previous general provisions which might include it. In any view it seems to me that the construction placed upon the law by the opinion of the court is not free from doubt. If Congress intended to impose duty upon an article appearing on the free list it should have made its intention manifest by plain and unambiguous language. It cannot be pretended that it has done this and it is a cardinal principle of tariff interpretation that the importer should not be compelled to pay under a doubtful interpretation of the law.
HARDT VON BERNUTH & CO. v. UNITED STATES.
(Circuit Court of Appeals, Second Circuit. January 16, 1906.)
CUSTOMS DUTIES-CLASSIFICATION-IMITATION SILK YARN-SIMILITUDE.
Appeal from the Circuit Court of the United States for the Southern District of New York.
This cause comes here upon appeal from a decision of the Circuit Court, Southern District of New York (133 Fed. 800), affirming a decision of the Board of General Appraisers (G. A. 5,257, T. D. 24,155), which sustained the collector of the port of New York in the assessment of certain imports under the tariff act of 1897. Frederick W. Brooks, for the importers.
Charles Duane Baker, Asst. U. S. Atty.
Before WALLACE, LACOMBE, and TOWNSEND, Circuit Judges.
PER CURIAM. The article in question is a yarn which is known as imitation silk, the fabric woven therefrom being known and sold as "nearsilk," a fancy name, indicating that, though the fabric may present silk-like effects, it is not in fact silk. There are two provisions for yarns in the act, viz.: "Par. 385 (Act July 24, 1897, c. 11, § 1, Schedule L, 30 Stat. 185 [U. S. Comp. St. 1901, p. 1668]). * * * Silk threads or yarns of every description * * *thirty per centum ad valorem"; and "Par. 302. Cotton thread and carded * * * on yarn, warps or warp yarn, colored, bleached, dyed, etc. all numbers exceeding number twenty and up to number eighty, onefourth of one cent per number per pound." Act July 24, 1897, c. 11, § 1, Schedule I, 30 Stat. 175 [U. S. Comp. St. 1901, p. 1655.]
It is conceded by both sides that the yarn here imported is not silk and is not cotton, and therefore that it is not directly covered by either of these paragraphs; also, that it is not enumerated in the schedules of the act. Both sides refer to the similitude clause, section 7 (30 Stat. 205 [U. S. Comp. St. p. 1693]), which reads:
"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," etc.
The board held that:
"The yarns are similar to silk yarn in three of these characteristics-namely, quality, texture, and use-and are not similar to cotton yarns as to any of
the characteristics named in section 7."
We are unable to assent to these propositions, in view of the findings of the board as to these particular importations. It would appear from a suggestion in the record that some imitation silk yarns have been made from silk waste, but the board finds that these yarns are made from cotton waste. The cotton waste is dissolved in a solution of cup-ammonium, a salt of copper and ammonia, and this solution is forced through fine apertures, discharging into a bath of acetic acid, forming threads of cellulose. The board describes the process as consisting in "dissolving cellulose, without decomposing the same, and causing the same to flow in a thread or fiber-like stream into a bath containing a precipitant of cellulose, whereby the latter is precipitated from its solution in a thread of fiber-like form.' The analysis shows that except for 10 per cent. of moisture the substance is non-nitrated cellulose; cotton consists of nearly pure cellulose. The board finds that the yarns thus made require treatment in dyeing more ne.urly resembling the dyeing of cotton yarn than that of silk yarn, and that they are woven in the same manner as cotton yarns. In texture they are similar equally to cotton yarn and to silk yarn, consisting of fibrous threads or filaments. So in the use to which they may be applied, silk yarns, cotton yarns, and these yarns are all woven into fabrics for dress goods, into fabrics for dress goods, upholstery purposes, and what not. So far as quality is concerned, they certainly
resemble cotton yarn as much as they do silk yarn. As to material,
HENRY E. FRANKENBERG CO. v. UNITED STATES.
1. CUSTOMS DUTIES-CLASSIFICATION-BEADS TEMPORARILY STRUNG.
Beads are not to be included within the provision in Tariff Act July 24, 1897, c. 11, § 1, Schedule N, par. 408, 30 Stat. 189 [U. S. Comp. St. 1901 p. 1673], for beads "not threaded or strung," because they are strung only temporarily.
2. COURTS-COMITY-CONFLICTING DECISIONS.
Two Circuit Courts of Appeals reached differing conclusions in cases involving the same question, and another like case was presented to the court making the earlier decision. Held that, unless the court is persuaded by the decision of the other court that its former conclusion was wrong, the better course is for it to adhere to its former ruling, leaving it to the Supreme Court to secure uniformity by determining which of the conflicting decisions is correct.
[Ed. Note.-For cases in point, see vol. 13, Cent. Dig. Courts, §§ 314, 327.]
Appeal from the Circuit Court of the United States for the Southern District of New York.
This cause comes here upon appeal from a decision of the Circuit Court, Southern District of New York (144 Fed. 704), which affirmed a decision of the Board of General Appraisers, G. A. 5,878 (25,891), which sustained the action of the collector.
Frederick W. Brooks, for the importers.
Before LACOMBE and COXE, Circuit Judges.
PER CURIAM. The articles in question are metal beads, which have been strung on cotton threads, and the only question is whether they are dutiable under Tariff Act July 24, 1897, c. 11, § 1, Schedule N, par. 408, 30 Stat. 189 [U. S. Comp. St. 1901, p. 1673], which reads, "beads of all kinds, not threaded or strung." Precisely similar articles, except that they were made of glass, were before this court in Re Steiner, 79 Fed. 1003, 24 C. C. A. 690. It appeared in that case as in this that the beads were strung on very thin cheap cotton thread; that such stringing was temporary only, for transportation and for con