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UNITED STATES v. BARUCH.

decided: February 19, 1912.

UNITED STATES
v.
BARUCH.



CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE SECOND CIRCUIT.

Author: White

[ 223 U.S. Page 191]

 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

[ 223 U.S. Page 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 (30 Stat. 151, 181, c. 11), 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 per cent. but were dutiable at the rate of 45 per cent. 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 Bros. & Co., 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 Fed. Rep. 294. On appeal, however, the Circuit Court of Appeals

[ 223 U.S. Page 193]

     held the merchandise dutiable at 45 per cent. ad valorem as "binding," under ยง 320, and the decision of the Circuit Court was reversed. 170 Fed. Rep. 342. This writ of certiorari was then allowed.

Under the tariff acts of 1890 (May 9, 1890, 26 Stat. 105, c. 200) 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 Fed. Rep. 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 per cent. 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

[ 223 U.S. Page 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 nunber 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 Fed. Rep. 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 (p. 443): "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 ...


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