Aris Gloves, Inc. v. United States

DISSENTING OPINION

Wilson, Judge:

I regret that I find it necessary to dissent from the majority opinion in this case. The conclusions reached in the prevailing opinion are not, I believe, supported by either the facts, or the law.

The facts in the case are not in dispute. As set forth in the majority opinion, certain women’s leather gloves were assessed by the collector with duty at the rate of 35 per centum ad valorem under paragraph 1532(a) of the Tariff Act of 1930, as modified by the Torquay Protocol to the General Agreement on Tariffs and Trade, T.D. 52739. The claim of the plaintiff is for duty at the rate of 25 per centum adl valorem under the provisions of paragraph 1532(a) of the Tariff Act of 1930, as modified by the General Agreement on Tariffs and Trade,. T.D. 51802.

The plaintiff’s position is that the duty increase set forth in the-Torquay protocol making effective the rate increase on leather gloves,, such as those involved in this case, was null and void because the notice-given of intention to negotiate certain changes in tariff rates, including those upon the type of merchandise here involved, was not “reasonable public notice” to the interested parties, as provided and intended under the provisions of section 4 of the Trade Agreements Act of 1934, as amended, and paragraph 5 of Executive Order No. 10082.

*269It is conceded, as it must be, that tbe notice given to interested parties in the form in which it was given was duly and legally given so far as its form and method of publication are concerned. This point has already been adjudicated in a case involving the exact type of merchandise now again before the court. Aris Gloves, Inc. v. United States, 38 Cust. Ct. 131, C.D. 1854, affirmed on appeal in Aris Gloves, Inc. v. United States, 46 C.C.P.A. (Customs) 41, C.A.D. 693. It is also admitted that the merchandise now before the court was adequately described in the notice as given. The only contention of the plaintiff is, therefore, that while the notice was duly and legally published, and while it properly described the merchandise in which the plaintiff is interested, the said notice was defective in that it did not adequately set forth the scope of the hearings to be conducted by the Committee for Reciprocity Information and was, therefore, insufficient to constitute reasonable public notice so that any interested person might have an opportunity to present his views to the said committee. In my opinion, the whole matter of reasonable notice was settled by our appellate court in the Aris Gloves case, supra, for, in that case, the court held, page 43, that “The sole issue to be decided here, as it was below, is whether ‘reasonable public notice of the intention to negotiate’ the Torquay protocol was given, as required by statute.” The court held that such notice was given.

Section 4 of the Trade Agreements Act of 1934 (48 Stat. 943, as amended, 63 Stat. 698; 19 U.S.C. §1354), prescribing that notice must be given prior to the conclusion of a trade agreement, reads as follows:

Before any foreign trade agreement is concluded with any foreign government or instrumentality thereof under the provisions of this Act, reasonable public notice of the intention to negotiate an agreement with such government or instrumentality shall be given in order that any interested person may have an opportunity to present his views to the President, or to such agency as the President may designate, under such rules and regulations as the President may prescribe; * * *.

The President’s Executive Order No. 10082, paragraphs 4 and 5, issued by authority of the foregoing congressional enactment, reads as follows:

4. Before entering into the negotiation of a proposed trade agreement under the Trade Agreements Act, as amended, the Trade Agreements Committee shall submit to the President for his approval a list of all articles imported into the United States which it is proposed should be considered in such negotiations for •possible modification of duties and other import restrictions, imposition of additional import restrictions, or specific continuance of existing customs or excise treatment. Upon approval by the President of any such list, as originally submitted or in amended form, the Trade Agreements Committee shall cause notice of intention to negotiate such agreement, together with such list of articles, to be published in the Federal Register. * * *
5. Any interested person desiring to present his views with respect to any article in any list referred to in paragraph 4 hereof, or with respect to any *270other aspect of a proposed trade agreement, may present such views to the Committee for Reciprocity Information, which shall accord reasonable opportunity for the presentation of such views. [Italics mine.]

A reading of the foregoing paragraph' from the Trade Agreements Act of 1934 and paragraphs 4 and 5 of Executive Order No. 10082 indicates that the whole controversy in this case must be resolved by ■determining whether or not the contents of the notice given by the Interdepartmental Committee on Trade Agreements satisfies the requirements for a “reasonable public notice of the intention to negotiate an agreement,” as set forth in section 4 of the Trade Agreements Act of 1934.

The notice in question so far as applicable herein, reads as follows:

Pursuant to Section 4 of the Trade Agreements Act, approved June 12, 1934, as amended (48 Stat. 945, ch. 474, Public Law 307, 81st Cong.) and to paragraph 4 of Executive Order 10082 of October 5, 1949 (14 F.R. 6105), notice is hereby given by the Interdepartmental Committee on Trade Agreements of intention to conduct trade-agreement negotiations with the following countries •* * *. It is proposed to enter into negotiations with these countries for the purpose of negotiating mutually advantageous tariff concessions. * * *
There is annexed hereto a list of articles imported into the United States to toe considered for possible modification of duties and other import restrictions, imposition of additional import restrictions, or specific continuance of existing customs or excise treatment in proposed trade agreement negotiations with the above countries.
* * * * * * *
No article will be considered in the negotiations for possible modification of duties or other import restrictions, imposition of additional import restrictions, or specific continuance of existing customs or excise treatment unless it is included, specifically or by reference, in the annexed list or unless it is subsequently included in a supplementary public list. No duty or import tax imposed under a paragraph or section of the Tariff Act or Internal Revenue Code other than the paragraph or section listed with respect to such article will be considered for a possible decrease, although an additional or separate duty on an article included in the annexed list which is imposed under a paragraph or section other than that listed may be bound against increase as an assurance that the concession under the listed paragraph or section will not be nullified.
* * * * * * *
Pursuant to Section 4 of the Trade Agreements Act, as amended, and paragraph 5 of Executive Order 10082 of October 5,1949, information and views as to any aspect of the proposals announced in this notice may be submitted to the Committee for Reciprocity Information in accordance with the announcement of this date issued by that Committee.

In my opinion, the foregoing notice, if read as a whole, which it must be, clearly advised all interested parties that in the negotiation of the proposed agreement both tariff reductions and tariff advances would be considered. To reach any other conclusion requires that the second paragraph of the notice stating “There is annexed hereto a list *271of articles imported into the United States to be considered for possible modification of duties and other import restrictions, imposition of additional import restrictions, or specific continuance of existing customs or excise treatment” must be completely ignored. Clearly, in determining the meaning and effect of a notice, its whole contents must be considered. One of the primary rules of statutory construction is that the entire contents of a statute must be considered and effect given to all the language contained therein, if possible. Nestle’s Food Co. (Inc.) v. United States, 16 Ct. Cust. Appls. 451, T.D. 43199; Cassard Romano Co., David A. Haagens v. United States, 19 C.C.P.A. (Customs) 191, T.D. 45294. The notices such as those here under consideration should be likewise so construed.

“Reasonable notice” is defined in 66 C.J.S., page 642, as follows:

“Reasonable notice” is defined to be such notice or information of a fact as may fairly and properly be expected or required in tbe particular circumstances.

In support of the foregoing statement, C.J.S. cites the case of Sterling Mfg. Co. v Hough, 68 N.W. 1019, 49 Neb. 618, which, in turn, cites Black’s Law Dictionary. Can it be said that the notice under attack did not impart “information of a fact” such as might “fairly and properly be expected or required in the particular circumstances”? Black’s Law Dictionary, fourth edition, under the heading of “Notice,” makes the following statement:

Knowledge of facts which would naturally lead an honest and prudent person to make inquiry constitutes “notice” of everything which such inquiry pursued in good faith would disclose. Twitchell v. Nelson, 131 Minn. 375, 155 N.W. 621, 624; German-American Nat. Bank of Lincoln v. Martin, 277 Ill. 629, 115 N.E. 721, 729.
In another sense “notice” means information, an advice, or written warning, in more or less formal shape, intended to apprise a person of some proceeding in which his interests are involved, or informing him of some fact which it is his right to know and the duty of the notifying party to communicate.

In my opinion, the notice in question properly advised the plaintiff herein that merchandise of the type now before the court would be considered in certain tariff negotiations not only for the purpose of arriving at desirable concessions, but also for the purpose of “possible modification of duties and other import restrictions, imposition of additional import restrictions, or specific continuance of existing customs or excise treatment.”

In the case of Baker v. Baker, 274 S.W. (2) 322, it was pointed out that the “Requirement of reasonable notice is flexible and pliable, not rigid and unyielding,” and that “Reasonable notice is such notice or information of a fact as may fairly and properly be expected or required in particular circumstances.”

*272In the case of In re Hansen’s Guardianship (Iowa), 295 N.W. 429, it was held that:

A notice is sufficient, even though conflicting statements are made therein, if there is no reasonable ground for believing that the defendant was misled to his prejudice.

While the immediate effect of the majority opinion is to hold only that the Torquay agreement is invalid, insofar as it changes the duty rate on merchandise of the type in which the plaintiff is now interested (women’s leather gloves of a certain kind), yet, the practical effect of the decision is to throw into question the whole agreement as to all merchandise upon which tariff rates were increased. Surely, such results should be anticipated, and a holding such as that set forth in the majority opinion should not be promulgated except upon more substantial grounds than those set forth in the prevailing opinion. I am well aware of the fact that the court may adjudicate the question of the validity of such agreements and of the notices given prior to the negotiation of such agreements. However, I am of the opinion that the notice here given would be adequate under any circumstance to apprise the parties involved of the extent of the negotiations contemplated, to say nothing of the applicability of the reasoning to the international reciprocal trade agreements, which have been in effect for some 26 years, and under which a great volume of international trade has been conducted.

The majority opinion relies on the case of Carl Zeiss, Inc. v. United States, 23 C.C.P.A. (Customs) 7, T.D. 47654, as its authority in reaching the conclusion that the notice in the instant case and the Presidential proclamation were void. However, that case is clearly distinguishable and is not controlling in the instant case. In the Zeiss case, supra, the merchandise consisted of a prism binocular, 6 by 24, the figure “6” indicating a magnification by 6 times, and the figure “24” indicating the diameter of the lens in millimeters. The merchandise, imported from Germany, was appraised in Hew York at the American selling price, as provided in section 402(g) of the Tariff Act of 1930, in accordance with a Presidential proclamation, dated December 14, 1932 (62 Treas. Dec. 674), issued under authority of section 336 of the said act. In its appeal to reappraisement, the importer claimed that the involved merchandise, which it was conceded was dutiable under paragraph 228(a) of the Tariff Act of 1930 at 60 per centum ad valorem, should have been appraised at its foreign or export value, whichever was higher, rather than upon the basis of American selling price. In this connection, appellant, in the Zeiss case, supra, contended that a notice published by the Tariff Commission relative to its investigation authorized under section 336, supra, was not a valid and legal notice of the investigation, because, *273it was claimed, the Commission did not coniine its investigation within the limits of the published notice. Section 336 authorizes and directs the Tariff .Commission, under certain conditions, to investigate cost of production in the United States and abroad, and, in connection with the investigation, or investigations, to conduct hearings after giving “reasonable public notice thereof.” After its investigation, the Commission was required to make recommendations to the President, who is authorized to proclaim new rates.

Paragraph 228(a), supra, provides for “prism binoculars, * * * frames and momitings therefor, and parts * * * ” and for many other instruments. Subsection (b) of that paragraph also provides for many instruments including “opera or field glasses (not prism binoculars), telescopes, microscopes * *

The Senate of the United States adopted Senate [Resolution. 219 directing the Tariff Commission to investigate by authority of section 336 of the Tariff Act of 1930 the difference in the cost of production in the United States and abroad of optical instruments, as described in paragraph 228 (a) and (b) of the act. Later, Senate Resolution 219 was rescinded by that body, and Senate Resolution 227 was adopted directing that the investigation cover “Optical instruments of a class or type used by the Army, Navy, or air force for fire control and parts thereof.”

From the foregoing resolutions, it is obvious that the Senate, in vacating the original resolution (219) directing an investigation covering all optical instruments, as described in paragraph 228 (a) and (b), supra, and adopting a restricted resolution (227), limiting the investigation to optical instruments of a class or type used by the Army, Navy, or Air Force for fire control or parts thereof, had specifically in mind limiting the scope of the investigation to be made. Nevertheless, the investigating body proceeded to extend its investigation to include optical instruments “suitable for use” by the Army, Navy, and Air Force. [Italics added.] The court found that “optical instruments of a class or type used by the Army, Navy, or Air Force for fire control” and optical instruments, suitable for use by the Army, Navy, and Air Force, referred to entirely different types of merchandise and that, therefore, a notice of investigation of optical instruments of the first class gave no notice of an investigation concerning optical instruments constituting an entirely different type of merchandise, to wit, optical instruments suitable to be used by the Armed Forces. The court, in the Zeiss case, supra, accordingly held that the proclamation of the President with respect to optical instruments “used by the Army, Navy, or their respective Air Forces for fire control” was without authority of law, illegal, and void. In the instant case, it is conceded that the merchandise in which the plaintiff is in*274terested was properly described, so it is difficult to understand the application of the Zeiss case, supra, to the facts of the present case. Indeed, it is not only not controlling but is not applicable to the facts now before us.

Inasmuch as it is conceded and has been adjudicated that due legal notice was given in this case, and that the merchandise in which plaintiff is interested was properly described in said notice, and that part of said notice imparted the information that the articles described would be considered for “possible modification of duties and other import restrictions, imposition of additional import restrictions, or specific continuance of existing customs or excise treatment,” I am of the opinion that the notice given under all the circumstances constituted reasonable public notice to the plaintiff, as contemplated by section 4 of the Trade Agreements Act of 1934 and paragraphs 4 and 5 of Executive Order 10082. I am, therefore, of the opinion that the plaintiff’s protest should be overruled and the classification and assessment of the merchandise by the collector ordered to stand.