United States v. American Brown Boveri Electric Corp.

DISSENTING OPINION

Garrett, Judge:

It is possible to argue with plausibility that the limiting clause of paragraph 1620 of the Tariff Act of 1922, expressed in the words “to be used exclusively as models and in-, capable of any other use,” is tautological and, therefore, somewhat ambiguous. By the law of nature the use of any article is confined to that adaptation of which it is solely capable. If, therefore, the article is “incapable of any other use” it certainly must be used exclusively as a model.

Congress possibly could have reached the end which, from the language, I think was intended by omitting the words “to be used exclusively as models” and simply saying “models * * * incapable of any use except as models. ” The latter phrase, “incapable of any other use” is normally the broader of the two and it seems to me would include any use contemplated in the expression “to be used exclusively as models.”

However, it is assumed that the exact language was inserted out of an abundance of caution, and it is, of course, the duty of the court to interpret and make effective both phrases.

It seems to me that the natural, common-sense meaning of the paragraph -is that an article which is a model of invention or of improvement in the arts can be imported duty free when {a) the intention is that it is to be used exclusively as a model, provided (&) it is incapable of any other use. The importer, in the best of faith, may intend that an article is to be used exclusively as a model, but if by the nature of its structure or for any other reason it is capable, as imported, of being used otherwise, it must be barred from free entry.

Two factors, therefore, enter into the equation: (a) Intention of use and (b) capability of use. The purpose must be exclusive use as a model, and capability of any other use must be negatived; that is, it must be determined to be incapable of any other use. This negative factor may be ascertained in some instances from a mere inspection of the model. In other instances proof of function may be required to determine capability or noncapability. In the instant *336case the record, a part of which is one of the models filed as an exhibit,, appears ample to determine both elements.

The majority, apparently, are of the opinion that a certain kind of advertising was intended to be derived, and has been derived, from the distribution, principally among railway executives, of the articles involved; that this so-called advertising is a use other than the model use contemplated by the statute and, therefore, this particular use must bar them from free entry under the “ to be used exclusively as models phrase of the paragraph. It would appear to follow logically that if this be held a use other than as a model, it demonstrates a capability of “other use,” and hence falls under the ban contained in the second and broader phrase “incapable of any other use.”

I find myself unable, however, to agree with the conclusion of the majority that the particular alleged “advertising” derived from the exhibition of these models is of such a character or nature as to violate the true meaning of the phrase “to be used exclusively as models.” To my mind such “advertising” is inseparable from an inspection of the structure and is a legitimate part of the function of a model. The word “advertising” is not, indeed, happily or aptly used.

The Customs Court adopted the definition of the word “model,’* when used as a noun, given in the Standard Dictionary, to wit:

An object, usually in miniature, representing accurately something to be made or already existing.

An examination of other definitions develops none inconsistent with that adopted by that court, and I feel that it is the proper one for the instant case.

So, it may be inquired, What do the models at issue do? Obviously the answer is they show what the machine of which they are replicas looks like. One can look at the model and visualize the larger, practical machine. In this respect they do give publicity to or “advertise” the thing they represent, but this is not a kind of advertising which legitimately may be classified as “other-use,” as those words are set forth in the paragraph. This is an inherent, indisseverable element of use as a model. If a model be not a replica of the thing; it is intended to represent to such an extent as that it shows to one inspecting it what the thing is, I should hardly regard it as a model. If it does show what the thing is then this showing surely is a model attribute.

Applying what appears to me to be their erroneous finding based upon an improper deduction as to the meaning of the word “advertising” the majority have given to paragraph 1620 an interpretation the logic of which, if strictly applied, will lead to the paragraph’s emasculation.

*337It is true that they define the models which they think Congress intended to admit duty free, as “models which were to be used for the making or building of something, ” and, it is assumed, they intend it to be inferred that a model so used is classifiable under paragraph 1620. And yet, how may it be so classified and square with their fundamental finding, if in addition to this use, or while being so used, it discloses to those who may see it what it is or what it represents? That would be “advertising” under the meaning which the majority appear to give to that word and could be applied logically to both phrases if the limitation of the court should elect to do so. If it be responded that such “advertising” result is incidental to such construction use and,, therefore, unavoidable and so must be disregarded, the answer would appear to be that this is equally true as to the models not used to construct by, or from, but merely for exhibition.

One at least of the models contained in the importation involved was used for constructing, in this country, a complete machine. It met the condition of being “used for the making or building of something,” but it was also used,, or was capable of being used, for showing what it represented, and, quite logically, it falls, along with the others, under the ban of the majority opinion.

It seems to me the majority are arbitrarily making an artificial division of a subject matter which does not admit of a natural division. They are segregating from a model a use inherent in it as a model, and making that inseparable and indisseverable element the basis for-finding a nonexclusive use. I can not but feel that they have failed properly to distinguish between “advertising” and “exhibition” in the use of a model. Some models could perhaps be used for advertising purposes in a way that would clearly debar them from free entry, but it would have to be an advertising different from that publicity of which the models here involved, in their condition as imported, are capable.

I doubt whether the language is so tinctured with ambiguity as to necessitate invoking the legislative history in order to arrive at the-intent of Congress. But there is no objection to so doing of which I am aware, and, strangely it seems to me, the majority have done so. The history, as I view it, does not buttress their conclusion, but indicates rather that Congress did not intend any such narrow construction of the paragraph.

By reference to this history, as set forth in the majority opinion, it will be noted that when Congress was formulating the act of 1909 there was laid before.it the court constructions of paragraph-616 of ■the act of 1897, under which court constructions certain “Molders’ Patterns” and two “steamship models” had been admitted duty free. The attention of Congress was also directed to a Treasury *338ruling upon the paragraph 616 made prior to these court decisions in which that department said:

* * * a model * * * is construed by this department to mean an object, plan, or design from which working machines, devices, or structures are to be made.

This appears to me to have substantially the same meaning as the words of the majority “to be used for the making or budding of something/' when those words are taken in connection with the remainder of the text of their opinion. They have given to paragraph 1620 of the act of 1922 the very interpretation which the department gave to paragraph 616 of the act of 1897.

Did Congress so intend? I think not, and think the history sustains my conclusion.

The information as to the court constructions was placed before Congress in “Notes on Tariff Revision” and along with it was the suggestion that the department's ruling as quoted supra—

Would seem * * * more in harmony with the intention of the law makers.

With this information and suggestion before it, Congress formulated paragraph 629 of the Tariff Act of 1909 which has been since retained and is now the paragraph in issue, and did not use the Treasury ruling language.

Had Congress adopted the language of the Treasury ruling defining models, nothing else appearing, it would be very persuasive, perhaps practically conclusive, as to its intention. The language of the ruling is well chosen, clear, and free from ambiguity. But Congress did not do so and the fact that it did not, but instead chose other phrases that are certainly reasonably capable of (I think incapable of any other than) a broader interpretation, it seems to me, manifested a definite purpose not to restrict the importation of duty-free models to the extent contemplated by the old Treasury ruling of 1901 and now declared to be the law by the majority opinion.

It is quite true that “a change in the language of a statute has always been construed by us to import a change in meaning unless the contrary is made plainly to appear in other ways,” as stated in the majority opinion. The change in language appearing in the act of 1909 indisputably had the purpose of making a change in the theretofore existing law and the practice under it, but it does not follow from this that Congress intended to make the Treasury ruling the law as the majority now propose to do. Had it so intended, I can not understand why it did not adopt the well-phrased language of that ruling. My mind does not rest content in the conclusion that any such narrow limitation was intended or provided, because the language *339used by Congress does not mean what the language of the Treasury ruling means.

Changes were wrought, but what were they?

By entirely dropping the words “including patterns for machinery,” as they appeared in paragraph 616 of the act of 1897, Congress met the court decisions under which “Molders’ Patterns” (articles which were-not models in fact but the actual frames or forms used in molding-metal, which forms were coming in direct competition with similar articles manufactured in the United States) had been and were being admitted free of duty. It is possible, though I do not regard it as being here material, that the new language which Congress did adopt excluded from the free list such articles as the steamship models involved in the Boas case cited in the majority opinion. Those were not complete models, except as to the external features of the vessels of which they were miniature replicas, and they probably had practically none except a real advertising use, but it was entirely different advertising from that held in the majority opinion to bar the merchandise involved in this case. The steamship models advertised a steamship line in order to attract travel; the models involved here simply show what the thing is of which they are miniature replicas. Their admission under paragraph 1620 can bring no conceivable harm to any person or industry in the United States. The machine which the models represent is a patented article. If any person becomes interested enough to purchase and import a machine he will pay the duty on it fixed by law; if he acquires the right to construct a machine here it will give employment to home labor.

It is a conclusion of the majority that it was not—

The intention to permit a manufacturer in some foreign country with a subsidiary American corporation to prepare any desired number of miniature reproductions of goods which it had to sell and distribute them through the United States gratuitously (etc.).

This is, of course, using a possible matter of competition as a factor to assist in determining congressional intent, and I question whether we are called upon as a court to look to that. But in any event it does not seem to me to be applicable to the instant case.

Paragraph 1620 deals with models of invention, and of improvements in the arts, not with merchandise of trade. The models in issue do not compete with anything produced in the United States, and the essential part of the machine of which they are miniature replicas is an invention, patented, which is alleged to be an improvement upon certain existing art. Underlying the reasoning of the majority in the paragraph last quoted, there seems to me to be a confusion of the model with the machine itself.

Just how any citizen or industry can be injured by persons seeing such models with or without duty having been paid upon them, I do not quite comprehend.

*340In any.event, it is the statute properly interpreted which, controls, and it seems to me that the majority have read into it, by construction, a meaning which its language does not justify and which Congress itself, with fullest information before it, and notwithstanding Treasury suggestion, deliberately and designedly declined to place there.

The “advertising” use ascribed to the models involved is the only use found by the majority to inhibit their classification under paragraph 1620. Such other uses as are suggested by the record are by them correctly found to be trivial or fugitive. In my opinion, the so-called particular advertising use described is not an advertising use which is separable from the use of the models as models, so as to bar them under the phrase “to be used exclusively as models,” nor have I been able to conceive of any adaptation of them which could be violative of the second phrase, “incapable of any other use.”

I feel that the judgment of the Customs Court should be affirmed and, therefore, respectfully dissent.