Frank & Co. v. United States

DISSENTING OPINION.

De Vries, Judge:

I am unable to concur in the majority opinion. That opinion adopts as the line of dutiable demarcation in drawn or open work the very uncertain criterion of whether or not the article is “ornamental.” Aside from the very capricious character of such a standard its employment was expressly and affirmatively rejected by the Congress, and, in my opinion, one of certain, definite trade understanding written in the law in lieu thereof, to wit, that the goods should of necessity be found to be ornamented or decorated wholly or in part by tambouring, appliqué, embroidering, or scalloping.

It seems plain that the court here adopts a standard which was expressly rejected by the Congress. The legislative and judicial history which prompted this legislation had distinguished two distinct-classes of drawn or open work, as follows:

1. Drawnwork formed solely by withdrawing threads or cutting or punching, and into which no extra or added threads have been introduced save to properly adjust the remaining threads not drawn from the fabric or bind or otherwise finish the drawn, cut, or punched areas, and which added threads do not per se form any figure or design. This class was held exempt from the higher rates of duty.

2. Drawnwork formed by withdrawing threads or cutting or punching and into or upon which extra or added threads have been introduced by which per se some figure or design is formed in or upon the fabric. This was the class the subject of extended litigation.

There criteria were founded upon definite, tangible, physical effects determinable alike by all concerned, while what is or is not ornamental would be vague and uncertain, differing according to the judgment of different appraisers and importers.

The paragraph evolved as a result of long litigation and legislative consideration in so far as pertinent reads:

349. Laces, lace window curtains, and all other lace articles; handkerchiefs, napkins, wearing apparel, and all other articles made wholly or in part of lace or laces, or in imitation of lace; * * * wearing apparel, handkerchiefs, and all other articles or fabrics embroidered in any manner by hand or machinery, whether with a plain or fancy letter, initial, or monogram, or otherwise, or tamboured, appliquéd, or scalloped, by hand or machinery, for any purpose, or from which threads have been drawn, cut, or punched to produce openwork, ornamented or embroidered in any manner herein described, in any part thereof, however small; * * *.

*281It would seem that if that view must prevail the context of the paragraph read in the light of its judicial and legislative history would well warrant the adoption of this well-settled line of demarcation.

That the dutiable test adopted by the court, of whether or not drawn or open work was ornamental, was not only not the intention but expressly repudiated by Congress is demonstrable.

While suggestions made to Congress in Notes on Tariff Revision (438-439), quoted in the majority opinion, observed these distinctions, 1 and 2 sufra, they were hot observed by the responsive paragraph of the bill as reported into and passed by the House, the language of which would include both said classes of drawnwork. In so far as pertinent it read:

345. Laces, lace window curtains, and all other lace articles; handkerchiefs, napkins, wearing apparel, and all other articles made wholly or in part of lace or laces, or in imitation of lace; * * * wearing apparel, handkerchiefs, and other articles or fabrics embroidered in any manner by hand or machinery, whether with a plain or fancy letter, initial, or monogram, or otherwise, or tamboured, appliquéd, scalloped, or hemstitched, by hand or machinery, or stitched in any manner for the purpose of ornamentation or embellishment, or from which threads have been drawn, cut, or punched to produce openwork; * * *.

Obviously this language would include class 1 of drawnwork, which has therein threads of adjustment and hemstitching in finishing the parts of the fabrics cut or drawn or punched, not alone in adjusting the remaining undrawn threads into fancy effects, but in protecting and probably embellishing the edges left unfinished by the drawing, cutting, or punching.

As reported in the Senate this paragraph retained the number of 345 and in so far as pertinent was amended to read as follows:

345. Laces, lace window curtains, and all other lace articles; handkerchiefs, napkins, wearing apparel, and all other articles made wholly or in part of lace or laces, or in imitation of lace; * * * wearing apparel, handkerchiefs, and other articles or fabrics embroidered in any manner by hand or machinery, whether with a plain or fancy letter, initial, or monogram, or otherwise, or tamboured, appliquéd, or scalloped, by hand or machinery, or from which threads have been drawn, cut, or punched to produce ornamental openwork, except hemstitching; * * *.

In this form the paragraph passed the Senate and went to conference.

The amendments thus made by the Senate are instructive. There is a perfectly apparent purpose of restoring the scope of the paragraph so -that it would not include drawnwork of class 1, but would include that of class 2, thus observing their clear distinction noted in G. A. 6452 and other decisions which conformed with the long-continued customs practice.

In effecting that purpose the Senate struck out the words “or hemstitched,” thereby relieving that class of simply constructed goods from this paragraph. What are “hemstitched” fabrics? They are more frequently a class of fabrics with drawn or punched threads, the drawn or punched parts óf which have introduced *282therein threads of adjustment ^perfecting and embellishing the same but not per se making a figure. By this amendment the Senate struck from the paragraph fabrics named in the paragraph as “hemstitched. ” This seems an infallible key to the Senatorial purpose. The Senate then proceeded to strike from the paragraph all other language of similar general scope by eliminating the words “or stitched in any manner for the purpose of ornamentation or embellishment. ” Plainly every ornamented or embellished article or fabric by stitching was not to be included herein. The Senate then proceeded to add the word “ornamental” before the word “openwork,” thereby confining the scope of the “ornamental” test in the paragraph to drawnwork alone.

In this imperfect and indefinite state the' paragraph went to conference, from which it emerged and became a law further changed to its present form as and numbered paragraph 349, which in these particulars reads:

349. Laces, lace window curtains, and all other lace articles; handkerchiefs, napkins, wearing apparel, and all other articles made wholly or in part of lace or laces, or in imitation of lace; * * * wearing apparel, handkerchiefs, and all other articles or fabrics embroidered in any manner by hand or machinery, whether with a plain or fancy letter, initial, or monogram, or otherwise, or tamboured, appliquéd, or scalloped, by hand or machinery, for any purpose, or from which threads have been drawn, cut, or punched to produce openwork, ornamented or embroidered in any manner herein described, in any part thereof, however small; * * *.

As coming from conference we find the paragraph, without infract-ing the rule of Congress that a conference result must not introduce a new subject of legislation, nevertheless more clearly and aptly expressing a precise purpose. The changes indicating that purpose are very suggestive. The word “ornamental” occurring before openwork was struck out. The words “not hemstitched” added by the Senate after the word “openwork” were likewise struck out. The words substituted were those following “openwork” as follows: “Ornamented or embroidered in any manner herein described, in any part thereof, however small. ” These words were substituted for “ornamental.”

The substituted phrase limits the classes of included ornamentation to those “in any manner herein described” which is tambouring, scalloping, applique, or embroidery, all superimposed by adding an extra thread to form independently or upon the fabric a figure per se. The purpose of the Senate and conference to eliminate hemstitched goods from this provision is obvious. If these words do not modify “openwork,” the conference defeated this very patent object, for otherwise such goods would fall within the described “openwork.” The conference substituted the language for that of similar though more extended effect “ornamental” as a term modifying “openwork” by placing this phrase immediately after that word. It could not *283well or grammatically- have been otherwise placed and by all tbe rules of grammar and legal construction should be held to modify "openwork.”

If it does modify and limit openwork, only openwork of the classes therewithin are so dutiable. How can it be said after reviewing this precise and studied effort of the Senate and conference to limit the paragraph by expressly striking out "ornamental” to say that it meant "ornamental” ? There would seem to be no warrant in the statute or its history where Congress expressly struck out "ornamental” as modifying "openwork” and substituted therefor modifying words expressing a limited number of kinds of ornamentation, that Congress meant to include all kinds and methods of ornamentation. It may be true that in so doing Congress defeated what otherwise may be inferred as its purpose, but in the presence of plain unmistakable language it is for the courts to follow such rather than inferences of a purpose not expressed, but on the contrary negatived by the congressional words. In my view, whatever construction may be put upon other language of the paragraph, whatever transposition may be made of the words of the statute, we must under all rules hold that the words "ornamented or embroidered in any manner herein described” modify "openwork.” We can not under any rule deny that modification, and being so unable I can not agree that the phrase includes all kinds of "ornamental” openwork.