Kung Chen Fur Corp. v. United States

DISSENTING OPINION

Mollison, Judge:

I must respectfully dissent from the decision of the majority sustaining the plaintiff’s protest claim for duty under paragraph 1681 of the Tariff Act of 1930. The majority considers as controlling the decisions in the Rotberg & Krieger, Arnhold 7 Co., and Winograd Bros., Inc., cases cited therein.

I have carefully examined the decisions in each of these cases, and conclude that they are in no way controlling of the issue herein. Those cases related to dog and goatskins which had been classified and assessed with duty under the general provision in paragraph 1519 (a) for “Dressed furs and dressed fur skins.” The plates and mats at bar were classified and assessed under the provision for “plates, mats, linings, strips, and crosses of dressed dog, goat, or kid skins,” and I am of the opinion that our inquiry is not limited to the question, of the meaning Congress intended to be given to the term “dressed” but should extend to the class of goods that it intended should be embraced by the entire provision for “plates, mats, linings, strips, and crosses of dressed dog, goat, or kid skins.” As has been so frequently said in this and other courts, “The master rule in the construction of statutes is to so interpret them as to carry out the legislative intent.” United States v. Clay Adams Co., Inc., 20 C. C. P. A. (Customs) 285, T. D. 46078. See also Stoeger v. United States, 15 Ct. Cust. Appls. 291, T. D. 42472; Procter & Gamble Manufacturing Co. v. United States, 19 C. C. P. A. (Customs) 415, T. D. 45578; Hartranft v. Oliver, 125 U. S. 525, 31 L. ed. 813; United States v. Stone & Downer Co. et al., 274 U. S. 225; United States v. Katz et al., 271 U. S. 354; and United States et al. v. American Trucking Associations, Inc., et al., 310 U. S. 534.

*33In the ascertainment of the intention of the legislature in the enactment of tbe provision in question, I find tbe legislative bistory to be quite revealing. The tariff provision which preceded the one under which the merchandise at bar was classified appeared in paragraph 1420 of the Tariff Act of 1922 and read as follows:

* * * plates and mats of dog and goat skins, 10 per centum ad valorem * * *

and in Draeger Shipping Co. v. United States, 15 Ct. Cust. Appls. 190, T. D. 42234, kidskin plates were held to be classifiable under the foregoing provision for goatskin plates. It will be particularly noted that the word “dressed” did not appear in the 1922 act provision.

When the bill which ultimately became the Tariff Act of 1930 was under consideration by the Committee on Ways and Means of the House of Representatives, hearings were held at which interested parties might present their views. At that time there was presented to the committee a brief by the National Association of the .Fur Industry, stated to have been submitted on behalf of the National Association of the Fur Industry, the American Fur Merchants Association, the Fur Dressers and Fur Dyers Association, the Associated Fur Manufacturers (Inc.), the Fur Brokers Association, and the Rabbit & Sheep Skin Dressers Association. See p. 7366 et seg. of volume 14 of “Tariff Readjustment — 1929, Hearings before the Committee on Ways and Means, House of Representatives, Seventieth Congress, Second Session.”

In the said brief, the National Association of the Fur Industry, claiming to speak for the fur industry in all its branches (p. 7369), made a recommendation that the fur provisions of the Tariff Act of 1922 be amended to read in part, as follows:

Dressed furs and skins, excepting silver or black fox, including plates, mats, and crosses of dressed dog, goat, or kid skins, 25 per cent ad valorem.
Dyed furs and skins, excepting silver or black fox, including dyed plates, mats, and crosses of dog, goat, or kid skins, 35 per cent ad valorem.

As the basis for the recommendation the National Association of the Fur Industry submitted the following (pp. 7370-7371):

CHANGES NECESSARY FOR THE SAKE OF FAIRNESS AND REASON
There is no doubt that paragraph 1420 has, since it was given its present general form in 1913, become an absurdity, and is inequitable in some respects as well.
At that time (1913) a distinction was made between true furs and the skins of a group of domestic animals including Chinese dogs and goats, these skins being used principally for coats retailing at $12.50 to $17.50 and used by ranchers-and teamsters in the northwest.
Dog and goat skins were at, that time imported principally in the form of mats or plates; mats consisting of a single dressed skin with pieces added to make it regular in outline and oblong in form; plates consisting of two or more dressed *34skins sewn together in an oblong form. Then as now this sewing was crude and had to be ripped out and resewn to meet our standards, but there is an advantage in importing the skins in this form, rather than separately, as they are uniform in size while individual skins are not.
Plates, mats, and crosses of dog, goat, or kid skins are not further advanced than dressing and dyeing. They are not as far advanced as dyeing in fact. They cannot be used for manufacturing purposes until the seams have been resewn, often after the skins have been completely ripped apart. In the case of crosses of goat and kid, which for ages past the Chinese have made in this form, the arms of the cross must be cut off and seams ripped out and resewn. Hence there is no reason whatever for regarding goat and kid crosses as “Further advanced than dyeing” and the duty on them as well as on dog, goat, and kid plates and mats should not be higher than that on dressed furs, if they are merely dressed, or than that on dyed furs if they are dressed and dyed. They are not ordinarily imported dyed.
ACTS OP 1913 AND 1922 PERMITTED IMPORTATION OP PLATES AND MATS OP DOG AND GOAT AT LOWER RATE THAN DRESSED SKINS
While fixing the tariff in 1913 on these mats and plates of dressed dog and goat skins and at 10 per cent as against 40 per cent for true furs dressed and partially manufactured, Congress made no exception of dog or goat skins dressed but not sewn together, but deliberately left such skins to come in as dressed furs at 30 per cent, though making no mention thereof in the act.
This was done in the interest of certain American dressers who were then dressing raw Chinese dog and goat skins, and were hopeful of eventually developing their methods and processes to a point at which they could compete on a quality basis in spite of higher cost of labor. It was felt that with sufficient encouragement these concerns would eventually develop a satisfactory method of dressing these skins.
It is greatly to be desired that such a process should bé developed here as American dealers would willingly pay three or four times as much for dressing if they could have dogs, especially, dressed here, thereby avoiding a delay of several months in getting the goods on the market and also avoid the very high interest rates and risks attendant on tieing up capital in China for that length of time.
CUSTOMS RULINGS NULLIFY CONGRESSIONAL INTENT
The ink was hardly dry on the act of 1913 when the customs authorities ruled that Congress could not have intended dressed dog and goat skins to come in at 30 per cent and the same skins sewn together in mats or plates at only 10 per cent, hence dressed dog or goat, as individual skins should come in at the same rate specified for plates or mats.
The infant industry of dog and goat dressing was promptly deprived of the protection given it by Congress and has made no material progress since then.
CUSTOMS COURT RULING RESTORES PROTECTION ON DOG AND GOAT SKINS DRESSED, BUT UNDER THE IMPRESSION THAT CONGRESS DID NOT SAY WHAT IT MEANT
This protection was not restored until 1927 when the Customs Court rendered a decision that kid skins are entitled to the same tariff rate as goat skins, ruled that neither are entitled to 10 per cent, and that the Customs Bureau had erred in letting dressed dog and goat skins in during the past 13 years at 10 per cent. The court held that it could not put into the act a meaning not expressed in the language of the act, even though the resulting situation seemed absurd.
CONDITIONS CHANGE
In 1913 Congress had also provided 15 per cent for garments made of dog or goat skins.
*35Since 1913 a great change has taken place in the standard of living of even ranchers and teamsters. The $12.50 coat has vanished. Dog, goat, and kid skins are used for more expensive garments and for trimming on expensive cloth coats. Certain kid skin coats dutiable under the present act at 15 per cent are retailed at several hundred dollars.
There is absolutely no reason why dressed dog, goat, or kid skins, either singly or in the form of mats, plates, or crosses should pay less duty than any other dressed fur skins, namely, 25 per cent under the present act. We recommend that the act be amended to meet this condition. [Italics mine.]

Tbe foregoing excerpt from tbe brief of tbe National Association of tbe Fur Industry is, of course, not quoted as evidence of tbe facts recited therein, but as a statement made before a congressional committee wbicb was formulating a tariff bill and as indicating the basis for subsequent action by that committee and the Congress. It does appear, however, that much of tbe material contained in tbe excerpt confirms and dovetails with tbe evidence in tbe record before us. Testimony offered on behalf of both tbe plaintiff and tbe defendant establishes that kidskins have been imported either in tbe raw form or in tbe form of plates and mats, tbe individual skins in wbicb have been subjected to tbe so-called “China process” prior to tbe making of tbe plates and mats.

Plaintiff’s witnesses testified that tbe same process was used in tbe dressing of dogskins, goatskins, and kidskins, and was in universal use in China. Some of them referred to it as “Chinese dressing,” “China dressing,” or “tbe Chinese process of dressing.” Corroboration of this is to be found in defendant’s exhibit 9, being pages 2 and 3 of a pamphlet copyrighted in 1937 and entitled “Fairchild’s Manual of Furs- — -What Do You Know About Furs?” Tbe author of tbe pages referred to, comprising an article under tbe caption “Chinese Lambs and Kids,” was Jack Rosenblatt, an officer, prior to bis death, in tbe plaintiff corporation, and an authority on tbe subject. Tbe article, wbicb is in question and answer form, contains, among other things, tbe following:

Q. 5. Do the lambs and kids come in from China in a raw state?
A. The best skins all come in raw. Skins of poorer quality come into this country in plates, and plates always come in dressed.

In tbe same article tbe author refers to tbe plates as “Chinese-dressed plates.”

Thus it would appear to be obvious that tbe “dressed” skins and tbe “dressing” referred to in italics in tbe above-quoted excerpt from the brief presented to tbe Committee on Ways and Means were dressed by tbe so-called “China process” hereinbefore described.

Furthermore, it is obvious from a consideration of tbe excerpt as a whole that tbe changes sought related to plates, mats, and crosses of dog, goat, and kidskins in tbe same condition as those covered by tbe 1922 act provision, wherein tbe word “dressed” was not used. *36It is clear tbat it was not sought by tbe National Association of the Fur Industry to make any distinction between plates, mats, and crosses of dog, goat, or lddskins dressed by the so-called “China process” and those otherwise dressed, for the entire record and the legislative history indicate that plates, mats, and crosses of such skins were never imported in a condition in which the skins were dressed by any other process.

It must be remembered that at the time of the consideration and passage of the Tariff Act of 1930 the question as to whether furs were “dressed” by the so-called “China process” within the meaning of that term as used in the trade and commerce of the United States had not been the subject of judicial decision. Consequently, neither in the “Memorandum of Court Decisions Affecting the Tariff Act of 1922” nor in the “Summary of Tariff Information, 1929,” prepared for the use of the Committee on Ways and Means, House of Representatives, by the Tariff Commission in 1929, was there any suggestion as to the use of the term “dressed” as applied to plates and mats of dog, goat, and lddskins, and the first time in the legislative history of the provision that the word “dressed” appears is in the recommendation of the National Association of the'Fur Industry noted above.

In the bill introduced as H. R. 2667 the provision with which we are here concerned reads as follows:

Pah. 1520 (a) Dressed furs and dressed fur skins (except silver or black fox), and plates, mats, and crosses of dressed dog, goat, or kid skins, 25 per centum ad valorem; all the foregoing, if dyed, 30 per centum ad valorem.

It is obvious from the foregoing that the particular provisions of the bill as introduced followed the recommendation of the National Association of the Fur Industry.

In House Report No. 7, accompanying H. R. 2667, no specific reference was made to the fur provisions, but the following statements appear on pages 132 and 133 as indicating the general intention with respect to the changes in rates and phraseology which had been made in schedule 14 of the 1922 act:

REQUESTS FOR CHANGES AND MATERIAL CONSIDERED

At the recent hearings in connection with tariff readjustments American manufacturers requested changes in rates and phraseology affecting about 80 per cent of the 60 paragraphs in this schedule.
In the preparation of Schedule 14 [Schedule 15 in the new act] the committee gave careful consideration to the testimony of the witnesses and to the briefs submitted. It also had available the Summary of Tariff Information, 1929, prepared by the United States Tariff Commission as well as the commission’s reports to the President and to the Senate, preliminary statements of information issued to the trade and other data obtained by the commission in the course of cost and other investigations. The experts of the commission also furnished additional information on various commodities.

*37CHANGES IN PHRASEOLOGY AND RATES

Changes were made in phraseology mainly for the following reasons: (1) To make more clear the intent of the Congress with respect to classification of commodities upon which there has been considerable litigation. (2) To provide separate rates of duty on a greater number of specific commodities in order that records of imports might not be unavailable due to their falling in basket clauses and losing their identity. [Italics added.]

* * ijc if! * * ,*

Thus it is clear that there was no intention by the inclusion of the word “dressed” or of the word “kid” in the then new tariff bill to cover other plates and mats of dog, goat, and kidskins than those which had been included under the designation in the 1922 act of “plates and mats of dog and goat skins.”

There was no discussion on the floor of the House concerning the provisions here involved, and on May 28, 1929, H. ft. 2667 was passed by the House of Representatives, with no change in the paragraph in question save that it was renumbered as paragraph 1519.

Hearings were held before the Senate Committee on Finance at which time a brief was presented by the National Association of the Fur Industry requesting the insertion of the words “linings” and “strips” after the word “plates” in the provision passed by the House. A brief was also filed by the Fur Dressers’ and Fur Dyers’ Association (Inc.), which is particularly interesting in view of the fact that it points out that the dressing process applied to dogskins in China (which, as has been stated, is the same as that applied to kidskins) “is done * * * in open lots, thereby avoiding the expense and upkeep of the building which the American firms have to maintain through the year,” and that “ Chinese dressing is cheaper because it is done in open fields or lots by coolie labor at starvation wages” [italics added], which statements are very largely confirmed by the record in the case at bar and further indicate that the “Chinese dressing” to which the attention of Congress was called was the same as the so-called “China process” with which we are here concerned. (See pp. 288-292 of a volume entitled “Tariff Act of 1929, Hearings before a Subcommittee of the Committee on Finance, United States Senate, * * * Volume XV.”)

As the bill was reported to the Senate by the Finance Committee on September 4, 1929, the provision in question read as follows:

* * * dressed dog, goat, or kid skins, and plates, mats, linings, strips, and crosses thereof, 10 per centum ad valorem; any of the foregoing, if dyed, shall be subject to an additional duty of 5 per centum ad valorem.

and the accompanying Senate Report No. 37 states:

Dressed dog, goat, or kid skins, and plates, mats, etc., thereof, are made dutiable, at the rate of 10 per cent ad valorem. The words “linings, strips,” have been added in order that importations under the classification will receive the same rate as plates, mats, etc.

*38The bill was passed by the Senate as reported by the committee, went to conference, and the Senate and House conferees recommended the following (Report No. 1326) :

Amendment numbered 761: That the House recede from its disagreement to the amendment of the Senate numbered 761, and agree to the same with an amendment as follows:
In lieu of the matter proposed to be inserted by the Senate amendment insert and plates, mats, linings, strips, and crosses of dressed dog, goat, or kid skins, 25 per centum ad valorem', all the foregoing, if dyed, SO per centum ad valorem; and the Senate agree to the same. [Italics in original.]

and the managers on the part of the House made the following statement with respect to the action:

Amendment No. 761: The House bill imposed a duty of 25 per cent ad valorem on plates, mats, and crosses of dressed dog, goat, or kid skins. The Senate amendment reduces this duty to 10 per cent and makes a clarifying amendment. The House recedes with an amendment restoring the rate of duty in the House bill and making a clarifying amendment.

Action was taken by both Houses and the bill as passed and approved by the President contained the provision recommended by the conferees.

It is clear from the foregoing that as understood and used by those who proposed its inclusion in the provision in the Tariff Act of 1930 for plates and mats of kidsldns, and as understood and used by the congressional committees which labored on the bill and by the Congress which passed the same, the term "dressed,” applied to plates and mats of kidsldns, included the treatment by which the sldns in such plates and mats were known as “China dressed” or “Chinese dressed” and which is the so-called “China process” here involved. It cannot, therefore, be questioned that among the commodities which were the subject of the foregoing legislative history of the provision in question, on which commodities Congress intended to impose the 25 per centum rate of duty, was the commodity which we have before us, i. e., plates and mats of kidsldns dressed by the so-called “China process.”

The legislative intent being thus manifest, it is immaterial whether, as hotly disputed in the record, the plates and mats in question were usable in their imported condition without the application of an American dressing and dyeing operation, whether the sewing done in China was permanent or not usable, or whether in fact the plates were subjected to processes of dressing subsequent to their importation. The sole issue is whether the plates and mats at bar are such as were intended to be covered by the provision under which classification and assessment were made, and I am satisfied that they are.

In my view, therefore, the judgment of the court should overrule the protest claims.