Turner v. United States

DISSENTING OPINION

Ford, Judge:

According to the official report of the collector of customs, submitted on customs Form 4297, “The merchandise covered by the annexed. protest was classified in liquidation as food cutting machines under paragraph 372 of the Tariff Act of 1930, as amended, and assessed with duty at the rate of 27K% ad valorem.”

The factual situation in this case is not in dispute. My disagreement with my associates is based entirely upon the construction which they have placed on paragraph 353 of the Tariff Act of 1930, as modified by the General Agreement on Tariffs and Trade, 82 Treas. Dec. 305, T. D. 51802.

As stated above, the merchandise was classified as “food cutting machines,” and, at the trial, it was agreed between counsel “that the slicing machine involved herein is a food cutting machine.”

So far as here pertinent, the provisions of paragraph 353, as amended, supra, are as follows:

*283Articles suitable for producing, rectifying, modifying, controlling, or distributing electrical energy, and articles having as an essential feature an electrical element or device, such as electric motors, fans, locomotives, portable tools, furnaces, heaters, ovens, ranges, washing machines, refrigerators, and signs; all the foregoing (not including electrical wiring apparatus, instruments, and devices), finished or unfinished, wholly or in chief value of metal, and not specially provided for:
* * * * * * *
Other articles (except machines for determining the strength of materials or articles in tension, compression, torsion, or shear; flashlights; batteries; vacuum cleaners; and internal-combustion engines), 15% ad val.

There is no attempt by the majority to classify the involved merchandise as “Articles suitable for producing, rectifying, modifying, controlling, or distributing electrical energy,” under the first part of said paragraph 353. The maj ority opinion contains the following:

To fall within the provisions of paragraph 353, supra, invoked by plaintiff, it is a positive requirement that an article be essentially an electrical device, * * *. *******
* * * It will be observed that said paragraph names the following exemplar articles: Electric motors, fans, locomotives, portable tools, furnaces, heaters, ovens, ranges, washing machines, refrigerators, and signs — a variety of articles widely differing in many mechanical and physical respects but all having the common attribute of being essentially electrical articles. Therefore, the meat-slicing machines in controversy are in the language of the Dryden case, supra, “within the class of articles named in this paragraph [353].”

The following is quoted from United States v. Dryden Rubber Co., 22 C. C. P. A. (Customs) 51, T. D. 47050, as being particularly applicable:

Two electric motors accompanied the machine. The exact capacity of these motors is not shown, although it is stated that one of them is “very small.” One motor furnishes the motive power for the machine. This motor is attached to the bottom plating of the machine. The other small motor is mounted on the “right-hand side” of the machine and'furnishes the motive power for two small emery wheels, each about 2 inches in diameter, which are in constant contact with the blade, one from the top and one from the bottom. This is shown to be necessary, as “the blade must be kept in a continuous sharp condition.”
When the machine was imported, bolt holes for the attachment of these two motors had been provided in the proper places. As to the grinding element, the invoice designates it as “1 grinding machine with motor starter (built-in).” . No photographs or exhibits have been furnished and our knowledge of the character and appearance of the machine is confined to the record, as above stated.
* * * * * * *
An examination of the language of the third division of this paragraph discloses that the articles therein eo nomine specified are of various types; they have, however, one characteristic in common, an essential electrical feature. A fan, a washing machine, and a sign seem to have little resemblance, but their analogy rests in the fact that electricity is the essential feature which causes them to function and perform their work. The language evidently was intended to be read, “articles * * * such as electric motors, fans”, etc., thus giving these named articles as examples of such as are intended to be covered by the paragraph.
*******
*284There are two inquiries, therefore, when the question of the classifiability of an article under this division of the paragraph is under consideration: First, is it essentially an electrical article? The electrical feature must be an essential feature, without which the article will not function, normally, for the purposes intended, for, it must be manifest, that if it be not an electrical article, it does not come within the division at all. Second, if it is such an electrical article, is it-an article named in the language, or within the class of articles named in this paragraph?

It should be noted that the above quotation was dealing with the “third division of this paragraph,” being paragraph 353 of the Tariff Act of 1930, and that the language there construed is identical with that contained in the General Agreement on Tariffs and Trade, which we are called upon to construe in this case.

Based upon the record in this case, it may be admitted that the involved machine answers the first inquiry in the Dryden case, supra, but it is the answer to the second inquiry, supra, with which I am here concerned, and as to which I feel the holding of the majority is in error. Is the involved article named in the language, or within the class of articles named in this paragraph? No electric motors accompanied the involved machine, as was true in the Dryden case. This record makes it clear that there was not imported with or as a part of the involved machine an electrical element or device, such as electric motors, fans, locomotives, portable tools, furnaces, heaters, ovens, ranges, washing machines, refrigerators, and signs, or any article ejusdem, generis therewith. It is my view that the absence of any of the articles named in said paragraph, or an article ejusdem generis therewith, precludes classification of the involved machines under this division of said paragraph.

If, as appears from the opinion, the majority rely for their conclusion upon the Dryden case, supra, that case, instead of supporting the conclusion reached by the majority, appears to require the conclusion that the involved machines are not covered by the language here involved. If it is intended to rely upon the motors, which were installed in the machines after importation, to bring them within the provisions of said paragraph 353, then the Dryden case has no application, because in that case “Two electric motors accompanied the machine.” Furthermore, in the absence of a provision to the contrary, imported merchandise must be considered for dutiable purposes in the condition in which imported. In the instant case, no motors and no article ejusdem generis with any of the exemplars named in said paragraph accompanied these machines. As stated in Ralph C. Coxhead Corp. v. United States, 22 C. C. P. A. (Customs) 96, T. D. 47080:

In order to come under this particular provision of the paragraph the importation must consist of an article containing, as an essential feature, an electrical element or device. Congress has given specific examples of articles which con*285tain electrical elements or devices as essential features thereof. In determining whether an imported article contains such an electrical element or device as an essential feature we should consider the examples which Congress has given.

My views herein appear to be in harmony with the holding by the Court of Customs and Patent Appeals in United States v. Nichols Copper Co., 29 C. C. P. A. (Customs) 186, C. A. D. 190, as expressed in the following quotation:

* * * We do not apply the doctrine of ejusdem generis as a rule of construction, but by the use of the words “such as” in the paragraph we are required to determine whether a substance not specifically named in the paragraph is like or similar to, or belongs to the same class as, the substances therein named. See Comey & Johnson Co. v. United States, 4 Ct. Cust. Appls. 285, T. D. 33493; Frankfeld & Co. v. United States, 7 Ct. Cust. Appls. 296, T. D. 36805; United States v. Seward, 9 Ct. Cust. Appls. 18, T. D. 37845; United States v. Dryden Rubber Co., 22 C. C. P. A. (Customs) 51, T. D. 47050.

The construction placed upon the provision here in question by the majority appears to ignore the words “* * * such as electric motors, fans, locomotives, portable tools, furnaces, heaters, ovens, ranges, washing machines, refrigerators, and signs.” It is my view that we may not ignore the exemplars which Congress and the trade negotiators have written into the statute. This view finds confirmation in the case of Ex Parte the Public National Bank of New York, 278 U. S. 101, from which the following is quoted:

* * * In effect, the contention for petitioner practically comes to this — that the general purpose of §266 being to safeguard state legislation assailed as unconstitutional from the improvident action of federal courts, the words “by restraining the action of any officer of such State in the enforcement . . of such statute” are without significance. In other words, we are asked to ignore the quoted words and read the section as though they were not there.
But we are not at liberty thus to deny effect to a part of a statute. No rule of statutory construction has been more definitely stated or more often repeated than the cardinal rule that “significance and effect shall, if possible, be accorded to every word. As early as in Bacon’s Abridgment, sect. 2, it was said that ‘a statute ought, upon the whole, to be so construed that, if it can be prevented, no clause, sentence, or word shall be superfluous, void, or insignificant.’ ” Market Co. v. Hoffman, 101 U. S. 112, 115. We are unable to perceive any ground for departing from the rule in the case before us.

Likewise, in the instant case, I am unable to perceive any ground for departing from the rule announced by the Supreme Court of the United States, supra, and construe the statute here involved as though the exemplars there given were not there. I do not feel that we are at liberty to thus deny effect to a part of a statute.

This record fairly establishes that the involved machines were, at the time of importation, wired for certain electrical purposes, and that, after importation, further wiring is installed in order to fit the machines for.operation by an electric motor. These machines, when imported, contain no electrical element or device, essential or otherwise, other than being wired for certain electrical purposes. The most *286that can be said regarding this wiring is that it was electrical wiring apparatus, instruments, or devices. The trade negotiators have made it clear that it was never their intention to include within the provisions of said paragraph 353, here under consideration, machines “wired for certain electrical purposes” by expressly excluding from the operations of said paragraph “electrical wiring apparatus, instruments, and devices.” Courts may not, by construction, include within the provisions of a statute merchandise which the framers thereof have in clear and unmistakable language excluded therefrom. It is apparent to me, therefore, that the involved machines, when imported, contained no electrical.element or device which would bring them within the provisions of said paragraph 353, as modified.

The views herein expressed appear to be in harmony with the holding of the Court of Customs and Patent Appeals in Julius Forstmann & Co. v. United States, 28 C. C. P. A. (Customs) 222, C. A. D. 149:

It is clear to us that in paragraph 363 Congress intended that all articles ejusdem generis with those named in the paragraph should, unless more specifically provided for elsewhere, take the rate of duty therein set out.

Based upon the record in this case, and being governed by the authorities herein cited, I would hold that since the involved machines do not contain any of the exemplars named in the involved paragraph, or any article ejusdem generis therewith, such machines are not included within its provisions, and are, accordingly, dutiable as classified by the collector.