United States v. Astra Bentwood Furniture Co.

DISSENTING OPINION

Lenroot, Judge:

I respectfully dissent from the conclusion reached by the majority in this case. The court, as I construe the opinion, holds that the articles here involved are in fact “wood screws” within the common meaning of those words, of which we may take judicial notice, and are therefore classifiable under paragraph 338 of the Tariff Act of 1930; and also that the record indicates that the articles are “commonly called wood screws.”

Paragraph 338 of said act reads:

Par. 338. Screws, commonly called wood screws, of iron or steel, 25 per centum ad valorem.

Had it been the intention of Congress to embrace within the paragraph all screws coming within the common meaning of the term “wood screws,” then it seems to me that Congress would simply have used the words “screws, commonly known as wood.screws”; but when Congress made the qualification, “commonly called,” I think it is clear that it did not intend that all screws coming within the broad meaning of the term “wood screws” should be classified under the paragraph, but only such as were commonly called wood screws; and that such screws as were commonly called by other names should not be included in the paragraph.

If this be true, and I see no escape from this conclusion, then it became a matter of proof as to whether the articles here involved are *348“commonly called” wood screws; and the ordinary rule as to burden of proof and preponderance of evidence is applicable.'

In the case at bar the Government offered no evidence, all of the evidence taken having been introduced by the appellee. The burden was upon appellee to establish that the articles were commonly called wood screws.

The first witness called was one Frank J. Mano, the manager of appellee. He testified as follows:

Q. Under what name or names do you purchase Exhibits 1 and 2? — A. Under lag bolts, under coach screws, under lag screws.
Q. Any others? — A. No. [Italics mine.]

He testified further that they are used solely in wood, and that they are also called wood screws.

Oscar Linke, another witness in behalf of appellee, whose trade was that of manufacturing bentwood chairs, testified with respect to the articles in question as follows:

Q. Under what names have you known Exhibits 1 and 2 during the course of your years of experience? — A. Exhibits 1 and 2, I refer to them the same as the salesman that comes around. Some call it lag bolt; some call it lag screw; some call it coach screw. But it has always the same meaning; it is this screw.
Q. Those names are used interchangeably as regards these particular articles, Exhibits 1 and 2? — A. Yes; those names are known. If a salesman comes around and he offers it as lag bolt or offers it as coach screw, whatever expression he uses, I know it is this screw.

There was no testimony by this witness that the articles were ever called “wood screws.”

The last witness for appellee was one Edward A. Derby, a salesman for the National Screw and Manufacturing Co., who had been such salesman for twenty years. He testified in part as follows:

Q. To what class of purchasers have you sold articles like Exhibits 1 and 2? — ■ A. Why, to the wholesale hardware trade, nail supply, furniture manufacturers, piano manufacturers, the pole-line hardware trade, people that supply every telegraph and telephone company.
Q. Under what names have you sold merchandise like Exhibits 1 and 2?— A. Either lag screw or lag bolt. They are both the same. Some call them “bolt”; some call them “screw.”

Upon cross-examination the witness testified:

X Q. Have you ever seen the term “lag screw” used for “wood screw”, or vice versa? — A. Have I what?
X Q. Ever seen the term “wood screw” used for “lag screw”? — A. No.
X Q. When you refer to “lag bolt” or “lag screw”, that is similar to Exhibits 1 and 2? — A. That is correct.

It will thus be seen that two of the importer’s witnesses positively negative the claim that the articles are commonly called wood screws, *349and only the manager of appellee, Mano, testified that they were called wood screws; but even he admitted that they were purchased under the names of lag bolts, coach screws, and lag screws, but never as wood screws.

The Customs Court weighed this evidence and found that the articles are not commonly called wood screws, but are known as lag screws, coach screws, and lag bolts.

I submit that if this were an action at law, tried before a jury, and the jury should find upon the testimony in this record that the articles were commonly called wood screws, the court would unhesitatingly set the verdict aside as being against the overwhelming weight of the evidence.

It is therefore clear to me that, if the words of the paragraph “commonly called” are to be given any significance, the burden was upon appellee to establish that the articles were “commonly called Vood screws.’ Its own testimony fails to' establish this, the trial court so found, and we cannot, without doing violence to well-established rules, set aside that finding.

The term “commonly called” is most unusual in tariff legislation. I have found it in no provision of our tariff laws, present and past, other than provisions for “screws,” and this fact is persuasive that Congress in the deliberate use of such words intended thereby to narrow, for the purposes of duty, the dictionary definitions of “wood screws.”

Moreover, I submit that there has been legislative adoption of judicial determination that the words “commonly called wood screws,” do not include all screws coming within the common meaning of the words “wood screws.”

Paragraph 169 of the tariff act of 1897 provided for “Screws, commonly called wood screws, * * *” being the identical language used in paragraph 338 of the Tariff Act of 1930. In 1904 the Board ■of General Appraisers (now the United States Customs Court) construed the phrase “commonly called wood screws,” T. D. 25711, 8 Treas. Dec. 492. “Screw spikes” were there involved. The board in its opinion stated:

Screw spikes are new to this country, although in use for many years in Europe. They are made in peculiar form to suit the purpose for which they are intended— i. e., to fasten rails to ties, taking the place of spikes. The articles have a square head on a round shoulder, and are screwed into the ties by means of a wrench, very much after the manner of inserting lag screws. They have neither slots nor points, and differ in every essential feature from the well-known articles commonly called wood screws. As the provisions of paragraph 169 are expressly limited to screws commonly known as wood screws, the articles here in question .clearly do not fall within that paragraph. * * *

*350I would first observe, witb respect to this decision, that screw spikes such as were there involved would, under the majority opinion in this case, unquestionably be classified as “wood screws,” for such screw spikes clearly come within the broad definition of wood screws found in some of the dictionaries relied upon by the majority. Furthermore, in the case last cited, it was judicially determined that screws “commonly called wood screws” have slots and points. While the screws here involved have points, it is conceded that they do not have slots.

It having been judicially determined that screws commonly called wood screws have slots and points, and Congress having in every tariff law since 1897 used the same phrase, “Screws, commonly called wood screws,” without modification, I submit there has been legislative adoption of judicial determination that screws commonly called wood screws must have slots, which the screws here involved have not.

The majority opinion relies upon said decision to establish that there has been legislative adoption of a judicial decision that the words “commonly called” are synonymous with the words “commonly known.” That question, so far as the decision discloses, was not in issue before the board, was not discussed, and the majority opinion in this case relies wholly upon the fact that the board in its decision, evidently inadvertently, used the term “commonly known” instead of the statutory words “commonly called.”

While treating as authoritative this expression of the board upon a question not in issue before it and not discussed by it, the majority declines to give any weight to the pronouncement of the board that the screws there involved had no slots, thereby clearly implying that screws commonly called wood screws have slots. I am unable to understand why weight should be given to an expression of the board upon a question not before it, and no weight is given to an expression of the board upon a question directly there in issue.

Moreover, even assuming that the words “commonly called” should be construed as synonymous with the words “commonly known,” I think the court has placed too great a reliance upon the scientific definition of the term “wood screws.” I say this in view of the decision of this court in the case of Meyer & Lange et al. v. United States, 6 Ct. Cust. Appls. 181, T. D. 35436, in which the importer contended that tunny fish were in fact mackerel and dutiable as such. It was conceded that, upon dictionary definitions and the testimony in the case, the tunny fish is a member of the mackerel family. The court held that, for tariff purposes, the term “mackerel,” as it is popularly understood and ordinarily used, does not include the tunny fish. In its opinion the court said:

*351Without doubt the tunny is, scientifically speaking, a member of the mackerel family, and that scientific classification is unquestionably recognized by most, if not all, modern dictionaries. Nevertheless, the fact remains that such a classification is purely scientific and can not be accepted as determinative of the common, ordinary, and popular meaning of the term “mackerel.” * * * As tariff acts are drafted not in the terms of science, but in the language of commerce, which is presumptively that in common use, it follows that even if the tunny fish be a mackerel according to scientific terminology, it can not be classified as such for customs purposes unless it be popularly or commercially so regarded. * * *

So in the case at bar, while the screws here involved may fall under a broad dictionary classification of wood screws, I‘venture to say that it is a matter of common knowledge that they are neither commonly called nor commonly known as such. I do not believe that any hardware store in the country would sell, or any purchaser call for, such screws as wood screws, but always under some other name, and the testimony in the record abundantly supports this assertion. Such testimony is in accordance with what seems to me is a matter of common knowledge, and, if there be any doubt about it, said testimony should be given weight as advising the court upon the subject. Instead of this, it seems to me that the majority chooses to rely upon dictionary definitions and scientific works which are in themselves only advisory and never controlling upon the court, and holds that the testimony in the case harmonizes with such definitions. I agree with the trial court that the testimony in the case, if to be considered at all, clearly shows that the involved screws are not wood screws within the provisions of paragraph 338.

I agree with the majority that, upon the record made, and especially upon the samples of the merchandise in evidence, the articles here involved are not bolts provided for in paragraph 330.

It follows that, in my judgment, the collector correctly classified the merchandise under paragraph 397, and the judgment of the Customs Court should be reversed without remand of the case.