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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1927
- **Citation:** 274 U.S. 225

## 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
United
United
United
United
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

3

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

5

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
I

(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.

(c) It disregarded rules of construction com-
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.

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6

(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.

II

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
I
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.

II
The Emergency Tariff Act of May 27, 1921

The preamble to the Emergency Tariff Act of
May 27, 1921 (42 Stat. 9), reads:

ee

9

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-

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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.

IV
History of the times

In United States v. Union Pacific R. R. Co., 91
U.S. 72, 79, this Court said:

hae eee

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11

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

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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

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13

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

14

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

15

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

16

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

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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.

18

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

19

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 =
.

20

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

i

~—-

é
:

agin SEL

21

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 |

22

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

99

“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

23

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

24

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

25

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.

Vv
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

26

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.

27
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

29

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.

ne

30

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.

O

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386006_0752%3A02. Public record. Not legal advice.