United States v. Damrak Trading Co.

Worley, Judge,

dissenting.

Contrary to the majority holding, I seriously question whether the doctrine of ejusdem generis can properly be applied to paragraph 1021 of the Tariff Act of 1930 in such a way as to exclude therefrom the rubber mats involved in the'instant appeal. The record shows that the mats are used to cover floors in kitchens, hallways, basements, and porches in the same general way as rag rugs. In my view, therefore, the mats are floor coverings in both the literal and the ordinarily accepted meaning of that term. Accordingly, if they are to be excluded from the paragraph it must necessarily be on the basis of texture *84alone, because there is no distinction in use between such mats and the floor coverings provided for go nomine in that paragraph.

The statement by the majority that this court has relied on the rule of ejusdem generis in three prior decisions involving interpretation of paragraph 1021 of the Tariff Act of 1930 is, in my opinion, inaccurate. Those cases are Gimbel Bros., Inc. v. United States, 22 C. C. P. A. (Customs) 146, T. D. 47111; United States v. J. L. Hudson Co., 23 C. C. P. A. (Customs) 313, T. D. 48177; and United States v. Inter-Maritime Forwarding Co., Inc., 41 C. C. P. A. (Customs) 107, C. A. D. 537. The first case does not interpret paragraph 1021 of the' Tariff Act of 1930, but paragraph 1022 of the Tariff Act of 1922. Those paragraphs are similar but not identical. The second case involves paragraph 1021 of the Tariff Act of 1930 as it was prior to its modification by the General Agreement on Tariffs and- Trade, T. D. 51802. As a result of that modification a specific reference to felt-base fabrics was added to the paragraph. Therefore, the third case, Inter-Maritime, is the only one of the three cited which interprets paragraph 1021 of the 1930 Act as it now stands.

Moreover, neither Girnbel nor Inter-Maritime applies the doctrine of ejusdem generis to paragraph 1021 of the 1930 Act on the basis of material and texture alone. In each of those cases the primary basis for the decision was that the mats involved were not used as floor coverings within the meaning of the paragraph, and the differences in texture and material between those mats and the goods provided for eo nomine in the paragraph were mentioned merely as supporting that conclusion.

Under such circumstances, it seems inaccurate to state that the three cases cited constitute a “long and consistent judicial interpretation” of the matter in issue in the instant case. Actually the Hudson decision is the only one of the three which applies the doctrine of ejusdem generis to paragraph 1021 of the 1930 Act on the basis of material and texture alone; but, as noted above, the paragraph has been modified since that decision was rendered.

The decision in the Hudson case is based largely on the proposition that the Summary of Tariff Information, 1929, Vol. 2, page 1662, indicates that paragraph 1021 of the 1930 Act “relates to floor coverings made of vegetable fibers or vegetable substances.” It may be noted that the rubber mats here are of vegetable origin, as distinguished from the fur rugs involved in the Hudson case. The decision in that case appears to overlook the fact that the 1929 Summary of Tariff Information, Yol. 2, pages 1666 and 1668, also specifically lists, felt-base floor coverings and rubber tile as falling under paragraph 1022 of the 1922 act. Felt, of course, is of animal origin. Moreover, since the Hudson decision was rendered, paragraph 1021 of the 1930 Act has been modified to include an express reference to felt-base *85floor coverings. In view of that modification, the position that that paragraph is limited to vegetable floor coverings is clearly untenable.

As I see it, none of the above decisions cited by the majority provides a controlling precedent which would justify, much less require, reversal of the holding of the lower court in the instant case. Paragraph 1021 of the Tariff Act of 1930 now provides, eo nomine, for felt-base floor coverings as well as for those of vegetable origin. The sponge rubber mats at bar are used in such a way as to compete with the floor coverings provided for eo nomine. Such differences in texture and material between the sponge rubber mats and the floor coverings specifically named in paragraph 1021 do not justify exclusion of those mats from that paragraph.

While I am in thorough accord with the desire of the majority to follow established judicial interpretations, at the same time such disposition should not prevail when it clearly contravenes, as I think is the case here, the express intent of the Congress.

In my opinion the majority below reached the correct conclusion. I would affirm.