according to the decision, was submitted upon a stipulation "that the merchandise consists of wire netting with no weft or filling wires." In view of the rather full testimonial and documentary record made here we do not believe that that case, which was not appealed, may be here applied.

The case of Cron & Dehn Hardware Corp., supra, likewise has no application here. In that case the opinion sets out that the involved merchandise consisted of galvanized wire netting composed of steel wires and used as reinforcement in cement walls and other structures. It was assessed for duty by the Collector of Customs at the port of San Francisco under paragraph 399 of the Tariff Act of 1922 (the prototype of paragraph 397 of the Tariff Act of 1930), as articles or wares composed of metal not specially provided for at 40 per centum ad valorem. The appellant protested the action of the collector and claimed the merchandise to be dutiable as woven-wire fabric at 25 per centum ad valorem under paragraph 318 of the Tariff Act of 1922. That paragraph provided for the dutiable status of "Woven-wire cloth: Gauze, fabric, or screen, * There was no evidence in

that case, as is pointed out in the opinion, that the merchandise contained filling or weft wires. The opinion further stated that it appeared from the evidence that the involved merchandise and wovenwire cloth were made by entirely different processes. This court affirmed the judgment of the lower court and held that the galvanized wire netting was properly dutiable under said paragraph 399. The court further held on the record therein and in accordance with definitions of the terms "weave" and "weaving" quoted from Funk & Wagnalls New Standard Dictionary and the Encyclopaedia Britannica that under the commonly understood meaning of those terms the merchandise was not woven.

The opinion in that case should be read in the light of the issue presented; i. e., was the merchandise properly dutiable as claimed by appellant? In concluding that it was not so dutiable this court stated: "It would seem to be clear that the Congress intended to limit the provisions of paragraph 318 to woven-wire cloth, whether gauze, fabric, or screen, having both warp and filling or weft wires." It is clear that the merchandise was not woven as cloth is woven and accordingly it was properly held to be not woven.

Inasmuch as in the Cron & Dehn case, supra, the narrow common meaning of the terms "weave" and "weaving" was applied to wovenwire cloth as contrasted with the imported merchandise the broader meaning of those terms was not quoted in the decision because not necessary thereto.

It will be readily observed that the record in the present case differs materially from that in the Cron & Dehn case, supra, in that it is shown herein that the involved merchandise was made on a loom

with warp, so-called weft wires, and bobbins, and it further appears that the apparatus and process employed in the manufacture of the merchandise herein are quite similar to those used in weaving textiles from cotton.

The merchandise involved herein is not woven as cloth is woven for the reason that there is no weft or filler which traverses the warp wires from selvedge to selvedge. As the finished article appears, all of the wires run generally in the same longitudinal direction and it would be difficult if not impossible to determine by visual examination which are warp wires and which are the so-called weft wires. In the fabrication of the article, however, it is clear that every second wire (so-called weft) is twisted alternately around the warp wires on either side of it, resulting in the hexagonal form of the mesh.

We do not think that the involved merchandise can properly be said to consist of warp and weft or filling wires as commonly understood. However, we are of opinion that the goods properly respond to the term "woven-wire netting" as that term is commonly known. They were invoiced as netting "galvanized after weaving"; one of appellant's witnesses testified the process of making the merchandise to be an "interweaving" of the wires which enter into its construction; the testimony of the witnesses for appellant was to the effect that the goods were woven; the documentary evidence describes articles such as those at bar to have been woven; Funk & Wagnalls New Standard Dictionary defines the verb "weave" broadly as "to insert by intertwining"; Webster's New International Dictionary contains a similar broad definition; and we find an article in the Encyclopaedia Britannica, Fourteenth Edition, 1929, volume 23 at page 674, reading as follows:

WIRE MANUFACTURES. In addition to steel ropes, cables, barbed wire, nails and wire springs (see sections under these headings), wire is woven or shaped into an almost infinite variety of articles; the chief of these being wire-netting which is manufactured in many designs and sizes. The commonest form of wirenetting is that which is hexagonal in shape and which is woven by the twisting together of wires, this operation being carried out with a very ingenious kind of loom.

As will be seen in the illustration the hexagonal meshes are respectively formed by the twisting together of two wires, this being brought about by the passing through the loom of line wires which are unwound from bobbins and wires which are pulled out from the shuttles-these latter wires being in the form of a spiral. The spirals or springs, as they are called, are very rapidly wound on to mandrils, this being carried out by four spindles running in parallel, the wire being guided on quite evenly and automatically until the required thickness of spring has been made. The spindles on to which the wire is wrapped are slightly tapered, consequently, after the full quantity of wire required has been spun on same they can be removed from the machine and the springs easily detached or slipped off by slight end knocking.

The shuttle on the loom is in the form of a cylindrical pipe with an opening on the side at the upper end, the ends of the shuttles being fitted to what are known as split pinions. The operator charges a shuttle with one of the springs, connecting

the free end of wire of the spring to the end of the wire on the netting which has just been drawn from the shuttle. The operation of twisting is carried out by a shuttle spinning round its corresponding free wire, which is shown passing up from the bobbin. Whilst the wire is being twisted the netting is at the same time carried forward by the driven rollers on top.

In this way the two wires are twisted and so form one of the sides of the hexagon mesh. After one set of twists is made the shuttles are then moved to right or left by two reciprocating horizontal beams which carry with them the half-split pinions at the top and bottom of the shuttle to join up with the half-split pinions of an adjoining shuttle. As soon as the split-pinions are fixed in their new position a toothed horizontal rack moves forward or backward as the case may be rotating the pinions and thus making the following twist on the wire. From this motion it will at once be seen that the twists on netting are alternately right-hand and left-hand. [Italics supplied, except see.]

In view of what has heretofore been said we think that the natural and ordinary meaning of the term "woven-wire netting" certainly includes merchandise such as is here involved. Therefore, the judgment appealed from is reversed.

COLUMBIA MALLEABLE CASTINGS CORP. v. UNITED STATES (No. 4424) 1 1. MALLEABLE IRON CASTINGS, GALVANIZED.

1

Certain galvanized malleable iron castings-the castings having been subjected to the galvanizing process after they were annealed and made malleableare properly dutiable as articles composed of base metal not specially provided for at 45 per centum ad valorem, under paragraph 397, Tariff Act of 1930, as held by the trial court, rather than as castings of malleable iron not specially provided for at 20 per centum ad valorem under paragraph 327, or as castings of iron at 10 per centum ad valorem under said paragraph, as modified by the trade agreement with Canada (T. D. 49752), as claimed by importer. Inasmuch as the articles have not been threaded, they have not been so advanced as to become "fittings ready for use," and the decisions in Dulien Steel Products, Inc., et al. v. United States, 27 C. C. P. A. (Customs) 285, C. A. D. 102, and Green Kay Corporation et al. v. United States, 29 C. C. P. A. (Customs) 216, C. A. D. 193, are therefore not controlling of the issues here.

2. LEGISLATIVE APPROVAL OF JUDICIAL CONSTRUCTION.

At the time of the enactment of paragraph 125, Tariff Act of 1913, in which it was provided for castings of iron not advanced and for castings of iron advanced, as well as for "castings of malleable iron not specially provided for in this section," the Congress is presumed to have had knowledge of the decision in the case of Byrnes & Lowery v. United States, T. D. 32506, 22 Treas. Dec. 806, decided May 9, 1912, wherein it was held that the galvanizing of the malleable iron castings there involved so advanced the articles that they were no longer "castings of malleable iron" within the purview of paragraph 148, Tariff Act of 1909. Furthermore, at the time of the enactment of paragraph 327, Tariff Act of 1922, which, so far as the issues here are concerned, is the same as paragraphs 125 and 327 of the Tariff Acts of 1913 and 1930, respectively, the Congress had actual knowledge of that decision. See Summary of Tariff Information, 1920, page 211. Accordingly, it must be presumed that the construction placed upon the provision for "castings of malleable iron not

1 C. A. D. 243.

specially provided for” contained in paragraph 148, Tariff Act of 1909, in the Byrnes & Lowery case, supra, met with the approval of Congress. The doctrine of legislative approval of judicial construction is, therefore, applicable to the issue in the instant case.

3. CANADIAN TRADE AGREEMENT.

The trade agreement with Canada does not relate to the provision in paragraph 327 here in question, that is, "castings of malleable iron not specially provided for." It relates only to the provisions for cast-iron andirons, etc., and castings of iron advanced in condition "but not made up into articles, or parts thereof, or finished machine parts."

United States Court of Customs and Patent Appeals, June 1, 1943 APPEAL from United States Customs Court, C. D. 697

[Affirmed.]

Tompkins & Tompkins (J. Stuart Tompkins of counsel) for appellant.

Paul P. Rao, Assistant Attorney General (Sybil Phillips, special attorney, of counsel) for the United States.

[Oral argument April 7, 1943, by Mr. J. Stuart Tompkins and Mr. Rao]

Before GARRETT, Presiding Judge, and BLAND, HATFIELD, LENROOT, and JACKSON, Associate Judges

HATFIELD, Judge, delivered the opinion of the court:

This is an appeal from a judgment of the United States Customs Court, Second Division, holding certain galvanized malleable iron castings, imported into the United States from Canada, dutiable as articles composed of base metal not specially provided for at 45 per centum ad valorem, under paragraph 397 of the Tariff Act of 1930, as assessed by the collector at the port of Buffalo, N. Y., rather than as castings of malleable iron not specially provided for at 20 per centum ad valorem, under paragraph 327 of that act, as claimed by the importer, appellant. It was also claimed by appellant, although the claim is not seriously pressed here, that the merchandise is dutiable as "castings of iron" at 10 per centum ad valorem under paragraph 327, as modified by the trade agreement with Canada, T. D. 49752, 74 Treas. Dec. 236, 244.

The pertinent parts of paragraphs 397 and 327 read:

PAR. 397. Articles or wares not specially provided for, * * * if composed wholly or in chief value of iron, steel, lead, copper, brass, nickel, pewter, zinc, aluminum, or other metal, but not plated with platinum, gold, or silver, or colored with gold lacquer, whether partly or wholly manufactured, 45 per centum ad valorem.

PAR. 327. Cast-iron pipe of every description, and cast-iron fittings for castiron pipe, 25 per centum ad valorem; cast-iron andirons, plates, stove plates, sadirons, tailors' irons, hatters' irons, but not including electric irons, and castings and vessels wholly of cast iron, including all castings of iron or cast-iron plates which have been chiseled, drilled, machined, or otherwise advanced in condition by processes or operations subsequent to the casting process but not made up into articles, or parts thereof, or finished machine parts; castings of malleable iron not specially provided for; 20 per centum ad valorem *

* * *

*

* *

It will be observed that paragraph 327 provides, among other things, for "castings * of cast iron," including such as have been "chiseled, drilled, machined, or otherwise advanced in condition by processes or operations subsequent to the casting process but not made up into articles, or parts thereof, or finished machine parts,' and for "castings of malleable iron not specially provided for:" [Italics ours.]

The facts in the instant case are not in dispute.

It appears from the record that the merchandise here involved consists of malleable iron castings, galvanized; that after the castings are annealed and made malleable, they are subjected to the galvanizing, or zinc-coating process; that the purpose of the galvanizing process is to prevent rusting; that malleable castings which have not been galvanized are known as "black" malleable castings; that galvanized malleable castings, being rustproof, are worth more and cost more than black malleable castings; that, in order to make castings of malleable iron, whether or not galvanized, into "pipe fittings" or "finished fittings ready for use," the castings must be chamfered and threaded; that the chamfering and threading operations increase the cost of the articles to the manufacturer about 20 per centum, and to the trade from 40 to 50 per centum; and that the finished pipe fittings are sold in this country by the piece, whereas the castings, before being subjected to the chamfering and threading operations, are sold by the pound.

The trial court, apparently relying upon our decisions in the cases of Dulien Steel Products, Inc., et al. v. United States, 27 C. C. P. A. (Customs) 285, C. A. D. 102, and Green Kay Corporation, et al. v. United States, 29 C. C. P. A. (Customs) 216, C. A. D. 193, as controlling of the issues in the instant case, held that, as the involved articles had been galvanized after they had been cast and made malleable by an annealing process, they were not "castings of malleable iron" within the purview of paragraph 327, supra, but were castings of malleable iron which had been advanced in condition by a process subsequent to the casting and annealing processes. In so holding, the court stated that the galvanizing process was "analogous to plating the article,” and that "it would not do to say that a plated casting was contemplated by the provision" for "castings of malleable iron," contained in paragraph 327.

In the case of Dulien Steel Products, Inc., et al. v. United States, supra, this court held that "cast malleable-iron threaded couplings, sleeves, or fittings," ready for use for their intended purpose as "couplings, sleeves, or fittings," were not dutiable as "castings of iron * * * advanced in condition by processes or operations subsequent to the casting process but not made up into articles" within the purview of paragraph 327, supra, because the Congress distinguished