# United States v. Witte Cutlery Co.

> Court of Customs and Patent Appeals · June 6, 1916 · 7 Ct. Cust. 181

URL: https://www.frixlaw.com/law-library/cases/6827672

## Case

- **Full name:** United States v. Witte Cutlery Co.
- **Court:** Court of Customs and Patent Appeals
- **Decided:** June 6, 1916
- **Citations:** 7 Ct. Cust. 181; 1916 CCPA LEXIS 70; 1916 WL 21565
- **Precedential status:** Published
- **Opinion:** Dissent by Smith
- **Judges:** Barber, Martin, Montgomery, Smith, Vries
- **Cited by:** 1 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/6827672

## Opinion text

DISSENTING OPINION.
Smith, Judge:
I regret to say that I can not agree with the majority opinion as to the construction which should be placed on paragraph 128, and particularly on the first proviso thereof.
Paragraph 128, in so far as it is pertinent to the case, reads as follows:
128. Penknives, pocketknives, * * * erasers, * * * and razors, all the foregoing, whether assembled but not fully finished or finished; valued at not more than §1 per dozen, 35 per centum ad valorem; valued at more than $1 per dozen, 55 per centum ad valorem: Provided, That blades, handles, or other parts of any of the foregoing knives, razors, or erasers shall be dutiable at not less than the rate herein imposed upon the knives, razors, and erasers of which they are par ts. ⅜ * ⅜
*184 In determining the interpretation to be pnt upon the provision cited, it is important to note that the enacting clause did not provide for razors and other article's whether finished or unfinished. Had it done so, the enacting clause would have covered both assembled razors and unassembled razors. United States v. Auto Import Co. ( 168 Fed., 242 ); Park & Tilford v. United States ( 1 Ct. Cust. Appls., 34, 35 ; T. D. 31006); Isaacs v. Jonas ( 148 U. S., 648 ). The fact that Congress did not so provide, but preferred to insert the limiting words “whether assembled,” would seem to indicate a legislative intention to confine the enacting clause to assembled razors, and that conclusion is fortified by the language which Congress saw fit to use. The phrase “razors, « * * * whether assembled but not fully finished or finished,” as it stands, and without implying or adding other words, signifies razors if assembled, finished or unfinished, because the word “whether” may be employed as the equivalent of “if” or “in case.” (See “Whether,” Standard Dictionary.) Sometimes in using the word “whether” the correlative “or” or “or whether” is implied, but in the phra$e under consideration the “or” is present, and if “or whether” or “whether” be implied it results in the same construction; that is to say, the phrase as implied wóuld read, “razors, * * * whether assembled but not fully finished or assembled finished,” or it would read, “razors, * * * whether assembled but not fully finished or whether assembled finished.” It is true that sometimes an alternative is introduced by “whether” and an alternative in the negative is implied. Here, however, the phrase in question conveys the meaning which attaches to the words just as they stand, and there is absolutely nothing in the context which warrants the conclusion that the.words “or not assembled” must be implied to make sense. Indeed, that the words “or not assembled” can not be implied becomes fairly evident when it is considered that unassembled razors, finished, would be an anomaly. I think, therefore, that unassembled razors are excluded from the enacting clause, and that they were so excluded because it was the intention to cover them by the language of the proviso.
The words in the proviso “foregoing knives, razors, or erasers” can not be held to mean assembled knives, razors, or erasers, for the reason that the proviso would then become mere surplusage, in view of the fact that parts of assembled razors are dutiable under the enacting clause, not as parts, but as assembled razors. The same result would follow even if the enacting clause could be construed to embrace unassembled razors, because parts of unassem-bled razors would then be provided for in that clause as unassem-bled razors. The words “all the foregoing” must therefore be held to relate to knives, razors, and erasers, and not to assembled knives, razors, or erasers.
*185 The next question to be determined is, What is the scope of the proviso ? Is it confined to those articles which at the time of importation are actually parts of razors, or is it broad enough to include things which at the time of importation are not parts of razors, but are razor parts intended to be made up into razors in this country by uniting them to complementary parts of domestic manufacture ? I incline to the former interpretation, for the reason that the proviso requires that the parts of razors provided for shall bear the rate of duty imposed upon the knives and razors of which they are -parts.
The razor blades in controversy were imported, as shown by the evidence, to be made up into razors in this country by adding to them domestic materials, and consequently they could not be considered parts of any razor at the time it became the duty of the collector to classify and assess them for duty. Under the actual terms of the proviso the duty to be assessed ón parts of razors is that imposed on the razors of which they are parts, and as at the tin e of importation of the merchandise there were no razors of which the blades were parts it follows that the goods are not dutiable under the proviso. If it were held that the value of the razor after manufacture in this country should be taken as the basis of duty, it would result that duty would be assessed on the valuation of a domestic razor and not on the valuation which the statute very explicitly imports. Of course, if the phrase “razors * * * of which they are parts” could be construed as if it read “of the class of razors of which they are to be parts” the proviso might be held applicable to the goods in controversy, but where is the justification for concluding that Congress intended that the phrase should be so read ? I find none either in the paragraph itself or in its legislative history, and to so construe the proviso as to make it applicable to the importation would,-in my opinion, simply amount to judicial legislation.' It may be that in drafting the proviso there was a legislative lapse, but thero is nothing -tangible which would justify us in reaching .that conclusion. Indeed, for aught we know, it may be that Congress intended to favor the importation of parts of razors designed to be manufactured into razors by the addition of American materials'.
I do not believe that the proviso is confined to parts of razors which arc imported with their complements in the same shipment, as decided by the board. Indeed, I am of opinion that the language of the proviso is broad enough to cover parts of razors whether the,complementary parts come in the same or in a different shipment. Had Congress provided in terms for unassembled razors or for parts of unassembled razors there might be some excuse for holding that such •a provision required the contemporaneous importation of the several parts which were committed one to the other for the manufacture of *186 a particular class of razors. See United States v. Schoverling ( 146 U. S., 76 ); Isaacs v. Jonas, supra. But Congress did not so provide, and I can find no reason for limiting the proviso to such parts of razors as are imported at the same time with their complements.
It is my opinion, therefore, that the decision of the Board of General Appraisers should be affirmed.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/6827672. Public record. Not legal advice.