Petition for Writ of Certiorari — United States v. Stone & Downer Co.

Supreme Court brief1927

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Text

Petition:

INDEX

Statement ._.-____

Question presented

Statutes invelved-

Reasons for granting writ

Brief in support:

I. Preliminary statement ‘ ee

I]. Emergency Tariff Act of May 27. 1921

II. Intent of Congress.

IV. History of the times

V. The testimony

Appendix ~

Cases:

AUTHORITIES CITED

American Express Co, vy, United States, 3 Ct. Cust. Appls.

475

Block v. Hirsh, 256 U.S. 135 :

Cadwalader vy. Zh, 11 U.S. 171

Carroll vy. United States, #15 of the past term of this

Court (not yet reported)

Church of Holy Trinity v. United States, 143 U.S. 457_.

Dupler Printing Press Co. v. Deering, 254 U.S. 443

Hahn vy. United States, 131 Fed. 1000

Heide \

Ozawa

*. United States, 2 Ct. Cust. Appls. 399

Levy Leasing Co. vy. Siegel, 258 U.S, 242

Marcus

Brown Co, vy. Feldman, 256 U.S. 170

Vv. United States, 260 U.S. 178

Roosevelt v. Maxwell (Fed. Case 12034), 20 Fed. Cas. 1155

Rosenberg & Co. v. United States, 7 Ct. Cust. Appls. 213

Stone & Downer Co. et al, vy. United States, T. D. 39473.

G. A.

8613, 43 T. D. 141

Stone & Downer Co. et al. vy. United Ntates, 12 Ct. Cust.

Appls. —, T. D. 40019, 45 T. D. 167 sae

Tilge v. United States, 2 Ct. Cust. Appls. 129-

United

Willenborg v. United States, 6 Ct. Cust. Appls. 451

States v. Anderson Co., 2 Ct. Cust. Appls. 350

States v. Hahn, 135 Fed. 349______-

States v. Pfitsch, 256 U.S. 547 ARERR SE cee ey ae

States v. St. Paul, M. & M. Ry. Co., 247 U. S. 310__

Biases ©. Taind, 26) 0; &. 266

States v. Union Pacific R. R. Co., 91 U.S. 72_-

Wright & Graham Co. vy. United States, 6 Ct. Cust. Appls.

Se ee

49960— 25-1 (1)

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Statutes: Page

Emergency Tariff Act of May 27, 1921, c. 14 (42 Stat. 9)_. 2,89

Par. 18, same act (42 Stat. 10) _.__._________ 2, 3, 4, 9, 11, 38

Ee. ee EU Pe, Oy en ae 2.5

Judicial Code, sec. 195, as amended August 22, 1914, e.

aE 0 PO i Se a a wwe wwe 1

Tariff Act of March 2, 1867, c. 197 (14 Stat. 559)_______- 20, 21

Tariff Act of March 3, 1883, ¢. 121 (22 Stat. 488, 508)____ 20,21

Tariff Act of October 3, 1913, ¢. 16 (38 Stat. 114) ~~ -_- __- 2

Far. goo, Same act (38 Stat. 143) _........___.-.._.... 8

Par. 650, same act (38 Stat. 164)_._._..._._.____. 3, 4,11, 18

Par. N, see. 3, same act (36 Stat. 18T)_................ 2

Miscellaneous :

Hearings before Ways and Means Committee, December

7 1 ee. Pe Se Bo 22, 23

House Report No. 1, 67th Cong., Ist sess—Report of

Ways and Means Committee on H. R. 2435 (Emergency

gi SRE OL A i Ae ete ae Bg RE shee ee a SO ee 2, 16

Lewis’s Sutherland Statutory Construction, vol. 2, see.

eh, Balin AES BAe See AE eh Sete er: eee ee eee 10

Original Emergency Tariff Bill, H. R. 15275, 66th Cong -_. 18.28

Senate Report No. 16, 67th Cong., Ist sess.—Report of

Finance Committee (Emergency Tariff Act) ~~~ --__-_~ 6

Inthe Supreme Court of the Anited States

OcToBER TERM, 1925

THe Unirep STares, vsenieiccaray

v. No. ——

Stone & Downer Co. ET AL. |

PETITION FOR WRIT OF CERTIORARI TO THE UNITED

STATES COURT OF CUSTOMS APPEALS, AND BRIEF IN

SUPPORT THEREOF

The United States prays that a writ of certi-

orari issue to review the judgment of the United

States Court of Customs Appeals in the above-

entitled cause rendered March 23, 1925, T. D. 40784.

This petition is filed pursuant to section 195 of

the Judicial Code, as amended August 22, 1914, e.

267, 38 Stat. 703.

On December 23, 1924, prior to the decision of

the Court of Customs Appeals, the Attorney Gen-

eral duly filed in the office of the Clerk of the

Court of Customs Appeals a certificate under sec-

tion 195 that in his opinion this case is of suffi-

cient importance to render expedient its review by

this Court.

(1)

PERLE RATS PURE DIL LONRAT el Se WEA POLL IR wars AP PIES. ARETE, I ES

STATEMENT

Certain importations of wool, wool varn, and

wool cloth were entered at the port of Boston dur-

ing the period from November 10, 1921, to July 3,

1922, and the collector of customs at that port

levied duties thereon under the provisions of the

Tariff Act of October 3, 1913, «. 16 (38 Stat. 114).

as amended by the provisions of the Emergeney

Tariff Act of May 27, 1921, ¢. 14 (42 Stat. 9).

More specifically, the wool was classified and

duty assessed thereon at the appropriate rate

provided in paragraph 18 of the Emergency Tariff

Act for:

Wool, commonly known as clothing wool,

including hair of the camel, angora goat,

and alpaca, but not such wools as are com-

monly known as carpet wools * * *,

The wool varn and wool cloth were classified

and assessed for duty under the specific provisions

therefor in the Tariff Act of 1913, supra, and in

addition thereto duty was levied at the rate pro-

vided in paragraph 19 of the Emergeney Tariff

Act on ‘‘ manufactures of which wool or hair of

the kind provided for in paragraph 18 is the com-

ponent material of chief value.”’

The importers, respondents, protested the action

of the collector of customs pursuant to the pro-

visions of paragraph N of section IIT of the Tariff

Act of October 3, 1913 (38 Stat. 114, 187), claiming

that the wool was entitled to exemption from duty

s Satan oo

E under paragraph 650 of the Act of 1913 (38 Stat.

: 164), and that the varn and cloth were not subject

to the additional duty provided in paragraph 19 of

said Emergeney Tariff Act.

| The Board of United States General Appraisers

sustained the protests of the importers, and on

appeal to the Court of Customs Appeals the judg-

ment of the Board of General Appraisers was

affirmed.

THE QUESTION PRESENTED

| The question presented is whether the importa-

tions of wool, which, it has not been disputed, are

commonly and chiefly used in the fabrication of

clothing, were properly classitied and assessed for

duty by the collector of customs under the pro-

visions of paragraph 18 of the Emergency Tariff

Act, supra, as:

Wool, commonly known as clothing wool,

including hair of the camel, angora goat,

and alpaca, but not such wools as are com-

monly known as carpet wools.

If the wool was properly classified under said

paragraph 18 of the Emergency Tariff Act, it au-

tomatically follows that the varn and cloth were

subject to the additional duty provided in para-

graph 19 of said act.

THE STATUTES INVOLVED

Paragraph 18 of the Emergency Tariff Act of

May 27, 1921 (42 Stat. 9, 10), under which the wool

was classified for duty:

— ee eee

Wool, commonly known as clothing wool,

including hair of the camel, angora goat,

and alpaca, but not such wools as are com-

monly known as carpet wools: Unwashed,

15 cents per pound; washed, 30 cents per

pound; scoured, 45 cents per pound. Un-

washed wools shall be considered such as

shall have been shorn from the animal with-

out any cleaning: washed wools shall be

considered such as have been washed with

water only on the animal's back or on the

skin; wools washed in any other manner

than on the animal’s back or on the skin

shall be considered as scoured wool. On

wool and hair provided for in this para-

graph, which is sorted or increased in value

by the rejection of any part of the original

fleece, the duty shall be twice the duty to

which it would otherwise be subject, but

not more than 45 cents per pound.

Paragraph 650 of the Tariff Act of October 5,

1913 (38 Stat. 114, 164), under which the court held

the merchandise was entitled to free entry:

Wool of the sheep, hair of the camel, and

other like animals, and all wools and hair

on the skin of such animals, and paper

twine for binding any of the foregoing.

This paragraph shall be effective on and

after the first day of December, nineteen

hundred and thirteen, until which time the

rates of duty now provided by schedule K

of the existing law shall remain in full force

and effect.

—— ee

Paragraph 19 of the Emergency Tariff Act (42

Stat. 10), under which the additional duty was

levied upon the wool yarn and wool cloth:

Wool and hair of the kind provided for

in paragraph 18, when advanced in any

manner or by any process of manufacture

beyond the washed or scoured condition,

and manufactures of which wool or hair of

the kind provided for in paragraph 18 is

the component material of chief value, 45

cents per pound in addition to the rates of

duty imposed thereon by existing law.

REASONS FOR GRANTING THE WRIT

(a) The Court of Customs Appeals erred in

holding that wool which is commonly and chietly

used in the manufacture of clothing is not ** wool,

commonly known as clothing wool.”

(b) It disregarded numerous decisions of that

court and of this Court in declining to review the

history of the times or to consider various mat-

ters of judicial notice surrounding the enactment

of the Emergency Tariff Act.

mon to the interpretation of customs law hereto-

fore adopted and followed.

(d) It improperly applied testimony as to the

commercial meaning of the term *‘ clothing wool =

to establish the common meaning of the term.

Bec wrers ees: oper

Sd, Pe

(ec) It did not give due force and effect to the

testimony introdueed on behalf of the Government

in aid of the common meaning of the term eloth-

ing wool.

The amount of refunds involved in this case is

over $200,000, and approximately 4,000 protests

against the decisions of the collector of eustoms

covering approximately 14,000 entries are pend-

ing. These protests involve the refund of more

than $10,000,000 (officially estimated), and their

disposition will depend upon the decision in this

case. Consequently this case is one of great publie

interest and of importance to the Treasury of the

United States in its administration of the rev-

enue laws and in disposing of the 4,000 suits

above mentioned.

For these reasons it is respectfully submitted

that the petition for a writ of certiorari should

be granted.

Wituiam D. MITCHELL,

Solicitor General.

Wma. W. Hoppin,

Assistant Attorney General.

JUNE, 1925.

- sea

BRIEF IN SUPPORT OF PETITION

Preliminary statement

As a preliminary statement it may well be

pointed out that the dutiable status of similar im-

portations of wool was originally presented to the

Court of Customs Appeals in the case of Stone &

Downer Co. et al. V. United States, 12 Ct. Cust.

Appls. —, T. D. 40019, 45 Treas. Dee. 167, In that

case the court was of the opinion (p. 178) that there

was ‘‘ no showing in this case that the term ‘ cloth-

ing wool’ has a common or ordinary use different

from its use among commercial men.”’

We submit, however, that there was clear evi-

dence in that case on behalf of the Government of

a common meaning different from the commercial

meaning as testified to by the witnesses for the

importers. However, in view of the above state-

ments of the Court of Customs Appeals, the Gov-

ernment in the instant case introduced the testi-

mony of five additional witnesses, to supplement

the evidence already introduced in the first case,

in aid of the common meaning of the term ‘‘ cloth-

ing wool” in contradistinection to the commercial

or technical meaning of the term as claimed by the

importers.

49960—25— —2

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That case, like the instant one, was instituted by

protests which were filed against the decisions of

the collector of customs at Boston in classifying

Importations similar to those in the case at bar

under the provisions of paragraphs 18 and 19 of

the Emergency ‘Tariff Act. The Board of General

Appraisers (one member dissenting) overruled the

protests of the importers in that case, but on ap-

peal to the Court of Customs Appeals the judg-

ment of the Board was reversed. Subsequently

the trial in this ease was had before the Board of

Generat Appraisers on other protests relating to

similar importations and while the record in the

former case was incorporated and made part of

the record herein, a great deal of additional testi-

mony was introduced in the present case to sub-

stantiate that introduced by the Government in

the former case, as already pointed out.

In the present case, made up as aforesaid, the

Board sustained the claims of the importers upon

the authority of Stone & Downer Co, et al. v.

United States, supra. The Board’s decision was

subsequently affirmed by the Court of Customs

Appeals, and it is now sought to have the judgment

of affirmance reviewed by this Court.

The Emergency Tariff Act of May 27, 1921

The preamble to the Emergency Tariff Act of

May 27, 1921 (42 Stat. 9), reads:

An Act imposing temporary duties upon

certain agricultural produets to meet pres-

ent emergencies, and to provide revenue ;

to regulate commerce with foreign coun-

tries; to prevent dumping of foreign mer-

chandise on the markets of the United

States; to regulate the value of foreign

money; and for other purposes. (Italies

ours. )

The title of the act and its declared purposes

would seem to suggest that if any doubt arises as

to the meaning of its provisions, Pquiry should

lead into an examination of the history of the

times preceding its enactment and due considera-

tion should be given to reports of Congressional

committees, statements of chairmen of such com-

mittees, and other faets of which judicial notice

may be taken in ascertaining the intent of Con-

gress. This the Court of Customs Appeals failed

to do, or, in any event, it declined to give due

foree and effect to such considerations in arriving

at the intent of the provisions of the Act.

That the importers, respondents, regarded the

meaning of the words:

Wool, commonly known as clothing wool,

ineluding hair of the camel, angora goat,

and alpaca, but not such wools as are

commonly known as carpet wools

in paragraph 18 of the Emergency Tariff Act

as of doubtful import, is indicated by the fact

that they found it expedient to introduce a great

deal of testimony from wool merchants regard-

WE RS ree #5 SE

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ing the commercial or technical trade classifica-

tion of the commodity. It will be noted that the

language in paragraph 18 is addressed to the

common rather than the commercial meaning of

the words ‘* clothing wool.”

In the first case of Stone d& Downer Co. et al. v.

United States, supra, the Board of General Ap-

praisers was divided two to one upon the mean-

ing of the language of paragraph 18, supra, T. D.

39473, G, A, 8013, 43 Treas. Dee. 141. As pointed

out, however, that decision was reversed by the

Court of Customs Appeals in Stone d& Downer

Co. et al. vy. United States, 12 Ct. Cust. Appls. —,

T. D. 40019, 45 Treas. Dee. 167.

III

Intent of Congress

It is a cardinal rule of construction that a legis-

lative act should be interpreted according to the

intention of the legislature. This is soeven though

the intent when ascertained may not be consistent

with the strict letter of the statute. Lewis’ Suth-

erland Statutory Construction, vol. 2, see. 363, p.

693, and cases cited. See also Church of Holy

Trinity v. United States, 143 U.S. 457, 459.

History of the times

In United States v. Union Pacific R. R. Co., 91

U.S. 72, 79, this Court said:

hae eee

ease

Courts, in construing a statute, may with

propriety recur to the history of the times

when it was passed; and this is frequently

necessary, in order to ascertain the reason

as well as the meaning of particular provi-

sions in it. (Italies ours.)

See also Ozawa v. United States, 260 U. 8S. 178

194.

It becomes important, then, in view of the pur-

pose of the Act, as recited in its preamble, to con-

sider the history of the times preceding its passage,

in order to ascertain the intent of Congress.

For a number of years prior to the passage of the

Emergeney Act of 1921, wool of the sheep, hair of

the came] ‘‘ and other like animals,’’ and all wools

and hair on the skin of such animals, were granted

freedom from duty. (Par. 650, Aet of 1913, 38

Stat. 164.) During that period the only similar

product upon which a duty was levied when im-

ported into this country was the ‘‘ hair of the an-

gora goat, alpaca, and other like animals.’? (Par.

305, Act of 1913, 38 Stat. 143.)

In the presence of these facts, what was the

object, purpose, or intent of Congress in framing

paragraph 18 of the Emergeney Act and earving

out of the free list ‘‘ wool, commonly known as

clothing wool, including hair of the camel, angora

goat, and alpaca’’? Mueh light is afforded in

answering this question by reference to Congres-

sional records and documents and to the history

of the times immediately prior to the enactment

i a

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Ser bh

nah IE

of May 27, 1921, and we shall take oeeasion briefly

to enumerate some of the considerations which

seem to have been uppermost in Congressional

thought and whose influence actuated the legisla-

tion which culminated in the provisions of the

Emergency Act involved in this proceeding.

Following the close of the World War in the

fall of 1918, there was a surplus of the world’s

siock of raw wool, and in 1920 there seems to

have been a general decline in wool prices—tinan-

cial stringeney, industrial stagnation, and unem-

plovinent being contributing causes. Fully recog-

nizing the principle that agriculture is the funda-

mental basis of prosperity in this country, Con-

gress, In order to avoid the possible destruction

of industries requiring vears to develop and to

avert serious financial difficulties then impending,

resorted to an emergency tariff as a temporary

means of rehef pending the enactment of a per-

manent bill As a result the Emergency Tariff

Act was placed upon the statute books May 27,

1921. In reporting the bill (HL. R. 2435) to the

House of Representatives, Mr. Young, of the

Committee on Ways and Means, submitted a re-

port, from which we quote the following (H. Re-

port No. 1, p. 2, 67th Cong., Ist sess.) :

One of the most serious obstacles to the

revival of industry is the paralysis of agri-

culture. Title I of this bill, to protect cer-

tain farm products, is submitted to Con-

gress for the welfare of the nation as a

aA RR CE TY LOLS

ee eromennnene

—

whole. It is not sectional. It is not for the

benefit of one class, because its passage will

he for the good of all. The purchasing

power of farmers has been in large part

destroyed and must be restored before good

times can be hoped for.

While it is true that we are in the grip of

a nation-wide industrial and business de-

pression, which has distressed many, im-

partial observers are of the opinion that

agriculture is the hardest hit of all. In

addition to abnormally low prices, and in

some instances no price at all, practically

everything the farmers buy is from 50 to

100 per cent higher than pre-war levels.

The consuming public and the commer-

cial public have an absolute and definite in-

terest with the farmer in helping him to

make cost of production and a fair profit.

The primary interest of the consuming

public in the farmer is that he keep on pro-

dueing food. The farmer will do that only

if he makes a profit on his productions. If

he must sell his commodities below cost of

production he must go out of business or

lower his standard of living to such an ex-

tent that he is a pubhie menace. tn either

event the consuming public will suffer.

At page 5 the report reads in part as follows:

The prosperity of this country is based

primarily on agriculture. If the American

publie permits class after class of Amer-

ican farmers to be driven out of their in-

dustries by competition from one source or

another, the whole country will be impov-

erished gradually but surely. The farmer

will not be the only sufferer; the whole pub-

lic will go down with him. This is the

teaching of history.

The sooner the average man _ realizes

that his interest is absolutely inseparable

from that of the agricultural producer, the

sooner will the entire country be on a more

prosperous footing.

With specific reference to the subject of wool,

we quote as follows from pages 7 and 8 of said

leport:

(1) In previous years the average pro-

duction of wool in the United States was

314,000,000 pounds and average imports

203,000,000 pounds.

During the war imports increased in re-

sponse to inereased manufacturing to about

445,893,000 pounds in 1919, and declined to

259,618,000 pounds in 1920.

(2) Both importation and consumption

of wool have decreased since May. How-

ever, there has been a large increase for

January and February, 1921. Importa-

tions in recent months appear to be specu-

lative, in anticipation of tariffs.

(3) The stocks of wool on hand were

large when the price slump came last May.

To the stocks on hand was added the new

clip of 280,000,000 pounds.

(4) The accompanying tables show the

wool supply in sight to be near 1,000,000,-

000 pounds. The normal consumption is

about 600,000,000 pounds, with about 400,-

000,000 pounds carried as stock. A year’s

supply is in sight at normal consumption.

At the present rate of consumption (about

two-thirds normal) the supply would be

sufficient for a year and a half.

(5) The effect of an embargo or high

tariff would be to gradually increase the

prices.

The justification for an emergency tar-

iff is:

(a) A fundamental industry that it takes

vears to develop is facing ruin.

(b) The prosperity of large numbers of

people, not sheep growers, is dependent on

the sheep industry. Hence, merchants and

bankers who have made large advances to

sheep producers are in serious financial

trouble and favor a wool tariff.

(¢) At present the supply of wool in the

United States is approximately 650,000,000

pounds, of which 175,000,000 pounds is held

by the producers. With the coming 1921

wool clip the amounts controlled by pro-

ducers would be approximately 450,000,000

pounds, while the dealers would hold approx-

imately 500,000,000 pounds. Therefore, the

henefit derived from a_ tariff would be

equally divided between producers and the

dealers and manufacturers. Undoubtedly

any tariff on wool would reflect in the price

of finished goods and the charge passed on

to the consumer.

(d) Wool dealers who purchased wool

stocks at higher prices than now obtain are

in serious financial straits and would be

directly benefited. Forced liquidation on

the part of wool dealers would make the

present bad situation worse and break a

trade organization of value to agriculture.

(e) It can be shown that the price of

wool is so small a factor in the ultimate

cost of manutactured goods that no large

burden need be placed on the consuming

public. [Italics ours. ]

The foregoing remarks quoted from the report

Which accompanied the Emergency Tariff Bill

when it was committed to the Committee of the

Whole House on April 13, 1921, present a very

clear picture of the distressing commercial, tinan-

cial, industrial, and economie eonditions whieh

prevailed at that time, and, as indicated, the

himergeney Act was enacted as a temporary

ineasure to relieve that situation. This report,

in so far as it related to wool and certain other

articles, was adopted without change by the Sen-

ate Finance Committee in reporting the bill to

the Senate. (Senate Report No. 16, 67th Cong.,

Ist sess. )

At the time the above report was submitted

all wool was on the free list. Not only had vast

stocks of wool accumulated in this country, but the

1921 domestie wool clip was in anti¢ipation as well

as tremendous shipments from foreign countries.

Congress therefore appreciated the necessity of im-

mediate legislative action to forestall serious em-

barrassment to wool growers and dealers in this

}

ee suet

country, as shown to exist in Mr. Young’s report.

Accordingly the Emergenev ‘Pariff Aet was en-

acted prescribing rates of duty on ** wool, com-

monly known as clothing wool,” the only specitie

exemption being ‘*sueh wools as are commonly

known as earpet wools.”?) This was urgent in

order to avert forced liquidations, as it appears

from the report that in many cases merchants and

bankers who had made large commitments to

sheep producers were in serious financial trouble

and favored a wool tariff. As the United States

is not a earpet-wool producing country, it nat-

urally and obviously follows that the acute situation

confronting merchants and bankers was created

through loans on stoeks of wool other than carpet

wool. To relieve this situation Congress imunedi-

ately enacted remedial legislation, as expressed in

paragraph 18 of the Emergenev Tariff Act. It

would be absurd to contend, therefore, that the in-

tent of Congress was not to protect the large body

of domestic wool producers, and that intent was

clearly expressed in the report which accompanied

the Emergency Tariff Bill. If the importers’ con-

tention were upheld, the very purpose of the legis-

lation would be defeated, as it would result in leav-

ing the large body of domestie producers of wool]

of the combing grade unprotected, and at the same

time protecting the small class of those producing

wool of the elothing grade.

From the foregoing it is obvious that Congress

deliberately intended to prescribe a protective rate

of duty upon all wool, and hair of the camel,

angora goat, and alpaca (exeept carpet wool and

certain skin wools), which under paragraph 650

of the Act of 1913 were exempt from duty. Con-

sequently, we find in paragraph 18 of the Emer-

gency Act that Congress has apparently divided

wools into two classes, namely clothing wools and

carpet wools, specifying that the former shall be

classified at 15 cents or 30 cents or 45 cents per

pound, according to condition, while carpet wools

should still remain on the free list.

It will be recalled that the original emergeney

tariff bill, H. R. 15275, which was passed by the

House and Senate, was vetoed by President Wil-

son a few days before the end of the 66th Con-

gress; and as the expression ** wool, commonly

known as clothing wool,’ appearing in paragraph

18 of the Emergency Tariff Act CHL R. 2435) of

May 27, 1921, is in language identical to the cor-

responding provision in the original emergeney

bill, it is profitable to consider the debates and

antecedent history of the original bill as well as

the one which was finally enacted into law.

An examination of the Congressional Record,

wherein the progress of the emergeney bill in

its various stages in the House and Senate is

shown, clearly indicates that Congress was legis-

lating with respect to two grand divisions of wool,

namely, clothing wool and carpet wool, which

terms collectively embraced all wools. References

to the Congressional Record are contained in the

Appendix to this brief, page 28.

In the trial court the importers, respondents,

introduced a great deal of testimony tending to

establish that in trade and commerce wools com-

monly used in the manufacture of clothing are ree-

ognized as (1) clothing wool, and (2) combing

wool; that the term “‘ clothing wool,”* as above ex-

pressed, relates to the short-fibered wools which

are not of sufficient length to be combed, and which

are utilized in the woolen system of manufacture;

that combing wools are wools of relatively long

staple which are combed in the process of manu-

facture and used in the worsted system.

The Government contends, however, that the so-

ealled combing wool is merely a grade or kind

of clothing wool and is in fact within the common

acceptation of the term known as ** clothing wool.”’

In its opinion the lower court remarked, T. D.

40734, pp. 48, 53, No. 15, 47 Treas. Dee. — (not

vet reported) :

In our former opinion we have set out

various expressions used in previous tariff

acts from Mareh 2, 1867, to 1921, when

Congress was referring to wool. The terms

used show that the framers of the para-

graphs knew the wool business and knew

the meaning of the terms used. The words

“clothing wools *’ were frequently referred

to, and finally ‘‘ clothing wools’’ were re-

fate =

ferred to as Class I. The trade understood

and the administrators of the act under-

stood what ‘clothing wools*’’ were and

what Class I was. They used the same

words with the addition of the words ‘* com-

monly known’ in the Emergency Tariff,

and now the Government contends that they

used the words in a different sense and that,

even if they did use the words “ clothing

wool *’ to describe a short-stapled wool in

the many preceding acts, in the emergency

tariff law they changed the meaning and

used the words in a different sense.

The record demonstrates that the importations

of wool here in question consist of Australian,

New . Zealand, and South American (Buenos

Aires) wool, all of which contain Merino blood.

All of these wools were in the Tariff Acts from

March 2, 1867, to 1921 (whenever wool was a duti-

able commodity), specifically designated in the

tariff either as ** Class I’ or, as in the Tariff Acts

of 1867 and 1883, as ‘‘ Class I, Clothing.”

For convenience, the provisions of the Tariff

Acts of 1867 and 1883 are here set forth.

The Tariff Act of March 2, 1867, ¢. 197 (14 Stat.

559), reads:

CLASS 1—CLOTHING WOOL

That is to say, merino, mestiza, metz or

metis wools, or other wools of merino

blood, immediate or remote; down eloth-

ing wools, and wools of like character with

any of the preceding, including such as

~—-

agin SEL

have been heretofore usually imported into

the United States from Buenos Ayres, New

Zealand, Australia, Cape of Good iLope,

Russia, Great Britain, Canada, and else-

Where, and also including all wools not

hereinafter described) or designated in

classes two and three.

The Tariff Aet of March 3, 1883, ¢. 121 (22 Stat.

188, 508), is in identical language.

Consequently, such wools as are here under

consideration had acquired a well-known desig-

nation as ** clothing wools *? based on blood rather

than on length of staple. The apparent reason

why such wools have also come to be technicaliv

known as combing wools is beeause of the great

development in the mannfaeture of combing ma-

chinery by which a great many wools which years

age were more commonly utilized in the woolen

system of manufacture are now well adapted

for the worsted system. But whether the wools

are carded or combed in being prepared for use

in the manufacture of clothing, it would seem

that they are properly and definitely described as

clothing wools.

While it is true that the Tariff Acts of 1867 and

1883 provided for ‘*Class I, Clothing Wool,’’ they

also provided for ‘Class II, Combing Wools,’’ the

latter embracing a few long-stapled wools of Eng-

lish blood, together with the hair of the alpaca,

goat, and other like animals. As we have pointed

out before, however, many wools, including Aus-

CAAA EMERG aS, fe |

tralian, New Zealand, South American wools, and

other wools of Merino blood, immediate or remote,

such as are involved in this proceeding, remained

under the heading ‘“‘Class I, Clothing,’’ even

though they were wools of the combing grade, as

shown by the record herein.

The distinctions between Class I and Class IT,

above referred to, were primarily blood distine-

tions, which were entirely dropped in the prepara-

tion of the Emergency Tariff Act.

It is clearly indicated in Part IV of the Hear-

ings before the Committee on Ways and Means,

House of Representatives, dated December 16,

1920, that wools of ‘Class I, Clothing,’’? and

“Class II, Combing,’’ as designated in earlier

tariff acts, were designed to be consolidated in the

Kmergency Tariff Act and provided for in the

provision for ‘* wool, commonly known as clothing

wool.’” We quote as follows from pages 134 to 135

of the above ‘* hearings ”’:

The CHarrMaAN. For the purposes of in-

formation, under the Payne and Dingley

tariff laws, the duty on carpet wools was 3

or 4 cents a pound, as I remember it—3

cents, I believe—when valued at not less

than 7 cents. Maybe it was a higher price

than that, perhaps 15 cents. And when

valued at more than 15 cents a pound, then

7 cents a pound. Those were the rates pro-

vided for in the Dingley and the Payne

tariff laws. I can get it accurately for you,

but that is about it. The 12 cents was the

duty at that time on wools of the second

class; your grease wools and fine wools

only paid a duty of 10 cents. Now, Mr.

Green puts both class 1 and class 2 wools

at 12 cents when fn the grease. [Italies

ours. |

2eference is here made to the history of the

original emergeney bill CH. R. 15275), which was

vetoed by the President, for the reason that the

language then adopted, ‘* wool, commonly known

as clothing wool, including hair of the camel, an-

gora goat, and alpaca, but not such wools as are

commonly known as carpet wools,’” was subse-

quently enacted into law without change (except

as to rate) in paragraph 18 of the Emergeney

Tariff Act of May 27, 1921. The above quotation

shows clearly the purpose to include all but carpet

wools in the dutiable class of paragraph 18.

The reports of the Court of Customs Appeals are

replete with cases in which, apparently, that court

has been largely, if not in fact expressly, guided by

its references to the Congressional Record, Tariff

Hearings, Notes on Tariff Revision, ete., in reach-

ing its conclusions. See, for example, Tilge v.

United States, 2 Ct. Cust. Appls. 129; United

States v. Anderson Co., 2 Ct. Cust. Appls. 350, 352,

353: Heide vy. United States, 2 Ct. Cust. Appls.

399, 402, 403: American Express Co. v. United

States, 3 Ct. Cust. Appls, 475, 478; Willenborg v.

United States, 6 Ct. Cust. Appls. 451, 454, 4095;

Wright & Graham Co. v. United States, 6 Ct. Cust.

Sle SOSA SPELT AS RR ARAL

Appls. 528, 529, 530, 531; Rosenberg & Co. y.

United States, 7 Ct. Cust. Appls. 213.

In this Court numerous cases may be cited

wherein its deliberations and conclusions seem to

have been greatly aided by consideration of Con-

gressional committee reports and the statements

of chairmen of committees. See, for example, Du-

plese Printing Press Co. v. Deering, 254 U.S. 445,

474.

See also Church of the Holy Trinity v. United

States, 1483 U.S. 457; United States v. St. Paul,

M. cd} M. Ry. Co., 247 U.S. 310, 318; United States

v. Pfitsch, 256 U.S. 547, 550, 551; and Carroll vy.

United States, No. 15 of the past term of this Court

(not vet reported).

As the case at bar is dealing specifically with an

emergency tariff act, the attention of the Court is

respectfully invited to its decisions relating to the

Kmergeney Housing Laws, namely: Bloch vy.

Hlirsh, 250 U.S. 135; Marcus Brown Co. v. Feld-

man, 256 U.S. 170; Levy Leasing Co. v. Siegel,

258 U.S. 242.

In view of the foregoing authorities it is re-

spectfully submited that the court below in declin-

ing to give appropriate force and effect to the his-

tory of the times and other matters of judicial

notice, failed to properly interpret the provisions

of paragraph 18 of the Emergency Tariff Act, or

to arrive at its obvious meaning and intent.

On the contrary, its conclusions would result in

depriving the paragraph of the meaning intended

SiR eae Rees

by its designers and render ineffective the remedy

prescribed by Congress for the emergency. In so

doing the court below not only departed from

rules of construction followed in many earlier

eases, but departed as well from principles of con-

struction frequently followed by this Court.

The testimony

Furthermore, the court improperly applied the

testimony introduced on behalf of the importers

with respect to the commercial or technical mean-

ing of the term ‘‘ clothing wool *’ in arriving at its

common meaning. It is not disputed that wool

merchants, in sorting and grading fleeces, separate

them into grades aecording to length of fiber, the

short fibered wools being carded for use in the

woolen system and the long fibered wools being

both carded and combed for use in the worsted sys-

tem: but nevertheless whether the different sorts

be technieally regarded as carding, clothing, or

combing wools, they are in substance, in faet, and

in name clothing wools within the popular coneep-

tion of that term. A great deal of testimony was

introduced on behalf of the Government from wool

producers who have had wide experience in the

great wool growing sections of the United States,

and from those sources we have clear evidence of

the common meaning of the term ‘* clothing wool.”

Rr ee

With reference to the common meaning of terms,

note: United States v. Thind, 261 U.S. 204; Ozawa

v. United States, 260 U.S. 178.

That the commercial meaning of a term used in

tariff statutes will not prevail where Congress has

already manifested a contrary intention is well

settled. Cadwalader v. Zeh, 151 U. S. 171, 176;

Roosevelt vy. Macwell (Fed. Cas. 12034), 20 Fed.

Cas. 1155: Hahn vy. United States, 131 Fed. 1000,

affirmed on appeal without opinion in United

States v. Hahn, 135 Fed. 349.

Furthermore, the provision in paragraph 18 of

the Emergeney Tariff Act in express terns is

addressed to the common rather than the com-

mercial meaning of the term ‘* clothing wool.”’

It is submitted, therefore, that the testimony

introduced in this ease on behalf of the Govern-

ment in aid of the common meaning of the term

‘** clothing wool *’ compelled a finding by the court

below that the importations in question were prop-

erly classified for duty by the collector of customs

under the provision—

Wool, commonly known as clothing wool,

including hair of the camel, angora goat,

and alpaca, but not such wools as are com-

monly known as carpet wools.

It is worthy of notice that hair of the camel,

angora goat, and alpaca, as shown by the record,

are long-fibered products which, like the wools

here in question, are usually combed in preparing

them for their ultimate use.

CONCLUSION

In view of the foregoing it is respectfully sub-

mitted that the writ herein applied for should

be granted.

Witniam D. MITCHELL,

Solicitor General.

Wa. W. Hoppiy,

Assistant Attorney General.

CHARLES D. LAWRENCE,

Special Attorney,

Of Counsel.

JUNE, 1925.

en aie tie saci]

APPENDIX

The following references to the Congressional

Record are here set forth.

Remarks in House on Bill H. R. 15275, imposing

cuties on certain agricultural products—Original

Emergency Bill, vetoed by President Wilson (ref-

erences are to the Congressional Record, vol. 60,

66th Cong., 3d sess.): Pages 594, 618 (the bill);

625 (Kinkaid), 631 (Blanton), 638 (Green), 642

(Quin), 648 (Smith, Mich.), 663 (Rainey), 664

(Fordne®), 665 (Green), 3488 (Disagreement to

Senate Bill), 3973 (Conference Report), 3975

(Conference Report), 3982, 4566, 4573, 4574, 4575,

4576, 4578, 4670, 4702, 4742.

Remarks in Senate, same bill: Pages 736, 738

(Smoot) ; 7438, 1294, 1673, 2005, 2054, 2063. ( Har-

rison); 2104, 2314 (Smoot); 2376 (Harrison) ;

2378 (Lodge); 3179 (Walsh) ; 3239, 3242 (Sim-

mons) ; 3247 (‘Table of Comparison) ; 3941, 4023

(Conference Report); 4024, 4084 (Conference

Report) ; 4039 (Reed).

Amendments in Senate: Pages 808, 1086, 1136,

1238, 1294, 1543, 1674, 1727, 2047, 2i04.

Conference Report (H. Report 1359): Pages

3824, 4023.

Estimated Receipts Emergency Act: Page 648.

‘*Comparison of Rates’? (Simmons): Page

3247,

The following references also are made to the

original Emergency Bill, H. R. 15275, appearing

in the Congressional Record, Volume 60, Part I,

pages 1 to 1084, 66th Congress, third session.

House: Page 625 (Kinkaid); 627 (Griffen) ;

631 (Blanton); 688 (Green); 642 (Quin); 648

(Smith); 663 (Rainey); 664 (Fordney); 665

(Olney) ; 665 (Hudspeth) ; 665 (Green).

Senate: Page 738 (Smoot); 738 (Harrison) ;

738 (Reed).

Remarks on final Emergency Bill, H. R. 2435,

and comparison of duties between the Emergency

Bill and the Payne-Aldrich Bill, Cong. Ree., vol.

G1, p. 1289, 67th Cong., Ist sess. :

Conference Report on bill (H. R. 2485) impos-

ing temporary duties on certain merchandise (H.

Report 79): Pages 1563, 1578, 1589.

Remarks in House on House Bill (H. R. 2435)

imposing temporary duties on certain merehan-

dise: Pages 217, 252 (the bill), 268 (old bill), 272

(Minority Report), 327, 1480, 1632, 1635.

Remarks in Senate (same): Pages 910, 1018,

1066, 1097, 1098, 1122, 1148, 1149, 1172, 1244, 1253,

1288, 8436.

Statistics relative to estimated revenue, Emer-

gency Bill: Page 1068.

Views of Minority: Page 269.

Amendment in Senate, Tariff on Wool: Page

1165.

Remarks in Senate on bill (H. R. 8643) to ex-

tend Emergency Tariff Act: Page 7538.

Statistical History of Tariff Acts from 1870 to

1920: Page 8421.

Statistics: Pages 1789, 3844.

Text of Booklet ‘‘ Tariff Information, 1921”’:

Page 3849.

Text of Emergency Act: Page 7544.

Note also the following publications:

‘“The Wool Growing Industry,’’ prepared by

the United States Tariff Commission, 1921, page

428,

The Report of the Tariff Board on Schedule K

of the Tariff Law on ‘** Wool and Manufactures of

Wool,’’ Vol. 1, part I, page 53, 1921. Also Vol. 2,

part 2, pages 299, 382, 413.

Summary of Tariff Information, 1921, page 952.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.