John A. Steer Co. v. United States

Rich, Acting Chief Judge,

dissenting.

I respectfully dissent from the conclusion that the imported coordinate plotters are not “mathematical instruments.” That they are drawing instruments, because used for drawing grid lines for map's, I have no doubt; but if they are properly termed mathematical instruments, within the common meaning of that term, then they are more than drawing instruments and not classifiable as such. Or at least if the more exacting term “mathematical instruments” fits the imports then they should be so classified under the doctrine of relative specificity, considering that some mathematical instruments are also used for drawing, such as the pantograph in United States v. F. Weber Co., Inc., 25 CCPA 433, T.D. 49506 (1938).

I agree that the classification must be determined case by case on the basis of the evidence which is, in this case, of the utmost simplicity. We have some excellent photographs of the coordinate plotter and the testimony of a single witness with a considerable bias, since he was the sales manager of the importer, Aero Service Corporation, the nominal plaintiff being its Customs House broker. The testimony as a whole, notwithstanding its obvious careful preparation to support the protest, serves with the photographs to make it clear how the apparatus works and what it will do, though arguments of counsel on both sides considerably muddy the waters.

The majority opinion lacks a description of the coordinate plotter, wherefore I find it necessary to describe it and what it does. This instrument is a sort of glorified, mechanized T-square with the super-accuracy of a fine machine tool. Grid lines on maps, which, inter alia, it is designed to draw, consist of north-south' or “Y” coordinate lines and east-west or “X” coordinate lines. In the type of map involved, all Y lines are parallel and all X lines are perpendicular thereto and parallel to each other. The witness refers to latitude and longitude coordinates by way of example, but they do not run parallel and perpendicular as do grid lines. The essence of forming a grid is to space the grid lines equally. Various standard map scales are used and the evidence is clear that the plotters are imported with various scales.1 *75Grid spacing is generally related to scale, as anyone who has read such maps knows.2 Accurate maps require accurate grid lines and making them is the purpose of the plotters.

The plotter consists of a table top, 47.25 x 47.25 inches (1200 x 1200 mm), along one edge of which is a fixed X rail or abscissa rail. It is machined to provide a track and along the track are scales against which may be read the movement of the T-square member which rides on this track. On the head of the T-square member there is also a rotating dial with numbers and a pointer which evidently ties in with the scale on the X rail. The description on Exhibit 2 states: “Counters with interchangeable dials for each scale.”

The T-square member, as I have termed it, is described by the witness as the Y rail or ordinate rail. Hiding along the X rail it maintains a position perpendicular thereto. It too carries accurately machined tracks and scales, along which moves a wheeled carriage and on this carriage is another dial like the one on the head of the Y rail. The carriage supports a microscope in which is a reticle3 having a cross hair or circle, utilized, as the witness said, “to observe an intersection or the start of one of the lines that you would draw and the centering of the cross hair at a position would be in the optical system so that you would be able to place the X and Y character precisely at that location.”

The microscope is a combination unit referred to in Exhibit 2, the description attached to the photograph being as follows:

Pricker-microscope which incorporates pricking point and microscope in one unit, avoids errors due to multiple prickers.

We are not told what is meant by “multiple prickers” but it seems clear that the pricking point associated with the microscope is for use to make a point, measured as to its location from coordinates and located on the paper by use of the coordinate scales on the plotter, which is the opposite of the microscope’s function of viewing marks already made and centering the plotter on them. This obviously is not a mere drawing function and the instrument is not just used to draw lines.

I find two flaws in the reasoning of the majority opinion as to this piece of apparatus: (1) It accepts uncritically the bald assertions of appellant’s counsel that the plotter performs no “mathematical opera*76tion.” (2) It adopts a too restricted definition of mathematics, as beginning with addition, subtraction, etc. In my view, according to lexicographers and other authorities, mathematics begins with numbers, counting, measurement and, in particular, precise measurement, which we are dealing with here;' is deemed to be included in mathematics. As to the relevant evidentiary fact, the plotter locates points with an accuracy of ±0.0015 inch (0.04mm) in 47.25 inches. As to the definitions, Webster’s New International Dictionary, 2d Ed. (1937) contains these relevant definitions:

mathematics n. That science, or class of sciences, which treats of the exact relations existing between quantities, or magnitudes and operations, and of the methods by which, in accordance with these relations, quantities sought are deducible from others known or supposed; the science of serial, spatial, quantitative, and magnitudal relations; the science of order.
mathematical a Of, pertaining to, or according to mathematics; hence, theoretically precise; accurate; as, mathematical geography, instruments, precision.

Now, a careful effort was made in presenting the testimony of the single witness to create the impressien that the coordinate plotter will do nothing more than enable a draftsman to draw lines, hence is nothing more than a drawing instrument. But one need do no more than contemplate its construction and operation and look more critically at some of the testimony dragged from the witness on cross examination to see that this is not so.

In the first place, the plotter will admittedly make very accurate measurements, and measurement is part of mathematics. Hogben, in his “Mathematics for the Million” (W. W. Norton & Co., Inc., 1937), titles his Chapter II “First Steps in Measurement or Mathematics in Prehistory.” The above definition shows that instruments for making precise determinations of spatial relations are mathematical instruments, and that is what the plotter does. The very name “coordinate plotter” signifies mathematical function. I will quote some testimony omitted by the majority (all emphasis mine) :

XQ. Can you tben explain bow this instrument is used? A. Certainly. Tbe unit is used to draw tbe grid wbicb would ultimately control tbe completed map. Now, longitude and latitude are tbe coordinates upon wbicb civil engineering maps are predicated. We must lay out a grid, network with a certain size grid, 5 inches, two inches, or whatever it may he on a manuscript wbicb is normally 45 inches square that fits very conveniently on a plotting surface. * * *
* * * *
XQ. By wbat method on tbe Exhibit Number 1 which is tbe instrument involved here, can you determine the length of the lines wbicb you are drawing? A. Almost tbe same as you would with a ruler. A ruler has numbers on it and you can either draw a line of 12 inches or you can measure a line and it reads 12 inches. This unit is a rack and pinion so that you can either draw a line of *77a given dimension or you can look at your manuscript and determine if that line is drawn at the correct length.
XQ. In other words, you can determine the length of a line by the use of this instrument? A. You can measure the length of the same as you had drawn the line.
XQ. How is the distance betioeen parallel lines determined by this instrument, Exhibit 1? A. How is the distance between—
XQ. Parallel lines determined? A. Almost again, you must use a ruler, establishing zero in one corner and you wish to draw a line 12 inches long, you would draw it out in ink to 12 inches. If you wish to draw the line parallel to that, you could index the length, 5 inches perhaps, north, and then draw the next line parallel.
XQ. If you wanted to measure the distances between two points, it would not always be necessary to draw a line between those two points but you could put point 1 and 2 and measure the distance? A. You could determine its coordinate location.
XQ. That is distance? A. Yes.
XQ. That is measurements? A. Yes.

A little later in his testimony the witness answered a question as to whether the microscope with its reticle could he used for measuring and said “it can be I guess used for measuring if you want to go back to something that had originally been drawn.”

Clearly the instrument can be and normally is used for measuring and it is transparently clear that in making grids that is one of its primary functions and is the purpose of the attached scales and the microscope — to measure accurately, extremely accurately, with mathematical precision, the distance between the grid lines, utilizing the indexing function of the scales and dials. This plain fact is contrary to the testimony on direct examination that the instrument is used only to draw lines, which testimony and the arguments of counsel predicated on it I consider entitled to no weight. The exhibits speak for themselves, eloquently, and on cross examination the witness contradicted himself.

The name “coordinate plotter” clearly conveys to me another elementary function which I consider mathematical in character. Given either a grid or a map with a grid on it, one plots positions indicated by coordinates by starting accurately from the particular X and Y grid lines indicated by the first digits of the coordinates and then lays off within the square of the grid thus located the position determined by the remaining digits. This is done by drawing additional lines parallel to X and Y and the position is located on their intersection.4 This is elementary map reading or making technique and what one would expect to do with a “coordinate plotter.” It is determination of spatial relations by means of numbers, starting from an ordinate and an abscissa, which has the distinct odor of mathematics. At any *78rate, one with no knowledge of mathematics would have a hard time doing it.

Surely this instrument is as “mathematical” as the pantograph in the Weber case which I think the lower court properly followed.

I am of the opinion the judgment of the Customs Court was clearly correct and it should therefore be affirmed.

Those available per Exhibit 2 are 1: 250, 1: 5.00, 1:1000, 1: 2000 in the metric system and 1:1200, 1: 2400, 1: 4800, 1: 6000 in the English system.

“Grid” is defined in Webster’s Seventh New Collegiate Deetionary as: "6.- a netwoi’k of uniformly spaced horizontal and perpendicular lines for locating points by means of coordinates.” The same dictionary defines coordinates as: “Za: any of a set of numbers used in specifying the location of a point on a line, or surface, or in space.” Thus with coordinates any point on a map having a grid can be accurately located or such a point can be placed on the map in the course of making it.

For those who do not know the term, Webster’s Seventh New Collegiate Dictionary defines reticle as: “a system of lines, dots, cross hairs, or wires in the focus of the eyepiece of an optical instrument.” Appellee’s brief refers to it is a “rectile.”

The witness said : “XQ. What are coordinates? A. They would be the values which would locate something precisely, such as longitude and latitude.”