IN RE SCHILLING.
81
gress to provide in this paragraph a rate of duty for both varieties, or rather for all three varieties, of handkerchiefs,-the embroidered and hemstitched, the embroidered, and the hemstitched,-nor does there seem to be any illogical or absurd or peculiar result which would be reached by interpreting them as they are written. The latter part of the paragraph, the proviso, may be fairly interpreted as laying upon embroidered handkerchiefs the same rate of duty which other embroideries of the same kind would pay. That being so, I see nothing to support the contention of the collector in any the evidence which is presented here, or in any of the references to the proceedings of congress, except it be the mere casual circumstance that a clerk of the finance committee, in preparing a tabulation for the use of his superiors, has made an index which indicates that he understood that this phrase referred to two different varieties of handkerchiefs, rather than to a single kind. That being so, I do not feel warra:llted in so construing the act as to make it read otherwise than is expressed upon its face. The result is that the hemstitched handkerchiefs which have no embroidery upon them should be classified for duty under the provision of handkerchiefs in section 349; the embroidered handkerchiefs which are not hemstitched should be classified for duty as textile fabrics which have been embroidered by hand or machinery, and must therefore pay the same rate of duty is paid by embroideries of the material of which they are composed, which, I understand, is cotton. Therefore, they should pay the same rate of duty as the other articles enumerated in paragraph 373. The decision of the board of appraisers is therefore reversed, and the collector directed to assess the duty in accordance with this opinion. In re SCHILLING et al. (CircuIt Court of Appeals. Second Circuit. October 25, 1892.)
1.
CUSTOMS DUTIES- CONSTRUCTION OF STATCTE-DECLARATIONS OF CONGRESSIONAL COMMITTEES-SWF.ETENED CnocoLATE.
The official statements of members of the conference committees on the tariff act of 1890 (26 St. at Large. p. 567) that by a clerical mistake paragraph 318 of Schedule G was made to read. "Chocolate. (other than chocolate confectionery, and chocolate commercially known as . sweetened chocolate,') two cents per pound;" but that the parenthesis should have ended after "confectionery," although supported by the history of the bill and its amendments, the attention of congress having been called to the mistake. and no action taken. do not authorize the courts. when construing the statute. to change the punctuation actually made. in the absence of other evidence that the intent of the statute required such change. The article commercially known as "sweetened chocolate" is not dutiable at 50 per cent. ad valorem as chocolate confectionery, under paragraph 239. Schedule E. of the tariff act of 1890. (26 St. at Large. p. 567.) nor as similar thereto, under the similitude section, nor at two cents per pound, under paragraph 318 of Schedule G. but should be classed as "cocoa. manufactured, not specially provided for." under paragraph 319 of Schedule G, dutiablll at two cents per pound. 48 Fed. Rep. 547. affirmed.
2.
SAME-CLASSIFICATION-SWEETENED CHOCOLATE.
Appeal from the Circuit Court of the United States for the (;outh· ern District of New York. Affirmed. v.53F.no.1-6
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FEDERAL REPORTER. vol. 53.
It. S. Atty.,jmd Henry C.Platt, Asst. U. f6rappel1ant. " , W. Wickham Smith, for appellee. Before WALLACE and SHIPMAN, Circuit Judges.
s.
SHIPMAN, Circuit Judge. This is an appeal by the United States from a decree of the circuit court for the southern district of New YOl'k, (see 48 Fed. Rep. 547,) which reversed the decision of the board' of United States general appraisers upon the rate of duty properly to be assessed upon importations of sweetened chocolate, under the tariff act of October 1, 1890, (26 St. at Large, p. 567.) The importations were made in October and December, 1890. "Cocoa, crUde," or the cocoa bean, is upon the free list. Chocolate is the cocoa be8.n'roasted, cracked, shelled, crushed, grQriIld" and molded in half a pound each.' It contams no sugar, and is of cakes of general use 'in families. Sweetened ,chocolate,an article which is well kll.dwn by that commercial name, is manufactUred in the same way<from the' COMa but the paste is mixed with sugar, and it is principally by confectioners to make chocolate'confectionery. It is made in various sizes, from ten·pound cakes to wafers. A part of the illiportations in question was ,til, ten-pound cakes, and the rt!· mainder,wasin ,small ca.kes of, about two inches in length by one inch in ,,'itltl1. and covered with papers of, variOUS colors. The article in commerce "prepared cocoa" is made from cocoa which, 'are roasted, shelled, and ground into a liquid co;ndi· In this"state it is put through a hydraulic press, where the butter is pressed out, and it becomes a powder. Paragraph 238 of Schedule E of the act of October 1, 1890, places a duty of five cents per pound upon sugar candy and all confectionery, including chocolate confectionery, made wholly or in part of sugar of a speciftedvalue. Paragraph 239 places a duty of 50 per cent. ad valorem upon all other confectionery, including chocolate con· fectionery; not specially provided for in the act. The collector assesseda duty upon the importations of 50 per, cent. ad valorem, under paragraph 239 and the similitude upon the ground that the merchandise assimilated in material, quality, and the use to whioh, itw,ay be applied to chocolate confectioJ;l.ery. The importers protested, ·,claiming that the article was duti.able at two cents per pound,. either under paragraph 318 or paragraph 319 of Schedule G of the slUl1e act. 318 reads as follows: "Chocolate, (other than chocolate confectionery, and chocolate commercially known as 'sweetened chocolate,') two cents per pound." Paragraph 319 is as:fallows: "Cocoa, prepared or manufactured, not specially provided for in this act, two cents per pound." The board ofgeneral being of opinion that paragraph 318 was improp· erly punctuated, that the parenthesis should end at the word "confectionel'Yl' and, that punctuation was no part of it statute, reversed the action of the collector, and adjudged that the article was dutiable at two cents per; pound under paragraph 318. The circuit court reversed the decision of the board of appraiSers, and adjudged that
IN BE SCHILLING.
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the
confectionery. The twqartic1es differ from each other in fact and in commercial designation, and, while sweetened chocolate in the form of wafers or sticks may often be used as a confection, it is a different. thing from chocolate confectionery, which is sweetened chocolate mixed with cream or fruits, or covered with sugar or other flavoring material. Neither can the similitude section be resorted to if the article was enumerated in the existing tariff acts, either by specific or general designation. The question of interest in the case is whether the parenthetical punctuation of paragraph 318 can be so disregarded that the sentence can be construed as follows: "Chocolate, (other than chocolate confectionery,) and chocolate commercially known as 'sweetened chocolate,' two cents pel' pound." The legislative hist{>ry of this paragraph seems to be that, as it passed the house of representatives, it was in the following form: "Chocolate, other than chocolate confectionery, and chocolate commercially known as 'sweetened chocolate,' three cents per pound." As it passed the senate it was in the following language: "Chocolate, two cents per pound." As reported to the two houses by the conference committees, and as passed. by congress, the paragraph was in the form in which it is now printed. It was subsequently officially, and, no doubt; truthfully, stated by members of each branch of the committees of conference, that the clerks of the two committees, in preparing the report, made a mistake by ending the parenthesis in the wrong place. The error has not been corrected by congress, although the subject has received its attention. It is truly said that punctuation is no part of a statute, and tllat, therefore, punctuation can be changed in accordance with the obvious intent Of the legislature; and it is also said that the inclosing It portion of a sentence in brackets is simply punctuation. A "parenthesis" is defined to be "an explanatory or qualifying clause, sentence, or paragraph inserted in another sentence, or in the course of" a longer passage, without being grammatically connected. with it." Cent. Diet. It is used to limit, qualify, or restrict the meaning of the sentence with which it is connected, and it may be designated by the use of commas, or by a dash, or by curved lines or brackets; but the use of CllI'VeS or of brackets unmistakably shows that the clause thus included 'was supposed by the author or by the scrivener to limit or restrict a general meaning of the language with which it is connected, or to be of importance in explaining the meaning. The curved lines or brackets are, it is true, punctuation, but they are made with forethought, and f01' the purpose of dearness and definiteness. They designate much more distinctly than by the use of comuas the character of the clause which is included. Apart from the declarations of the members of the conference committees upon the 11001' of congress, it could hardly be claimed that the intent of the statute plainly required a change in the punctuation. Ail inference could be drawn from the history of the statute before it reached the committees of conference, but, in view of the manifest limitation by the parenthesis, such an inference would not be controlling.. .Are,
It cannot safely be contended that the import&tioDs were chocolate
hare
clasElUied for duty lUlder paragraph 319.
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FEDERAL nEPORTER,
voL 53.
of membetii of the committeeseufficient to'authQriie a court to change the manifest f:J:t.ffining of a statute as it passed the legislative body and received the approval of the presi· dent" and to construe it ill accordance with the intention of the comniittees2 I think that such a judicial construction of a statute is akin· to judicial legislation, which, as congress has refused to act upon the s"llbject, it is well to avoid. The remaining question, whether sweetened chocolate can be clas· sified under paragraph 319, is a more doubtful one. It is ob'ious that if the article was enumerated in the act of October 1, 1890, it lllUSt ni'lcessarlly have been included in very general terms. All the have been described are in fact manufactured from crude cocoa. The term ."cocoa, manufactured" is not a commercial term, and is broad enough to include the preparations of chocolate which are. not more specifically mentioned in the comprehensive statute of 18$0, and within that paragraph the article in question finds an appropriaoodutiable place. . decree of the circuit, ,court is affirmed. THUM et a1. v. ANDREWS'et al. (Circuit Court, D. Massachusetts. December 28, 1892.) No. 2.893. 1. PATENTS FOB INV:ENTIONS..;..INVlllNTION-FLY
rounded by a margin of less adhesive material, so 'as to prevent it from spread· ing over the edges, and the third claim of letters patent No. 305,118. issued September 016. 1884, to the same person. covering the fly paper with adhesive faces placed together, so as to be packed without folding. and adapted to be separated when ready for use. are not invalid for want of invention because plasttlr& for the body had long been made with an adhtlsive margin surrounding the less sticky substance of the medicinal compouud. 2. AND SALE-EVIDENCE.
Letters pa,tent No. 278,294. is.sued May 22, 1883, to Otto Thurn for a sheet of fly paper partially covered with a sticky composition, the latter being sur·
A patent cannot be invalidated because of prior use and sale on the evidence of witnesses who, after the lapse of over 10 years. testify loosely and entirely from recollection, and do not produce samples of the articles sold, and when tbeir statements are. contradicted by the alleged purchasers thereof.
Equity. Bill by Otto Thum and others against John A. An· dre'ivs and. others for infringement of patents. Decree for complainants. ' Thomas J. Johnston and Chauncey Smith, for JohnlfcO. Perkins, for defendants. District Judge. .This is It bill in equity to enjoin an .of letters patent No. 278,294, issued May 22, 1883, to Otto Thurn., of th.e third of letters patent No. September 16, .1884, to said Otto Thurn. The claim\:; alleged to be infringed are as follows, respectively: "A sheet of fly paper partiaij.y covereli with sticky composition, the latter being surrounded with a bando!' margin of less, but still slightly adhesive, rna· tenaL"