1907. they were known in the trade as "pictures unframed." Another H. C. OF A. witness said "we call them advertising pictures," but afterwards. admitted that they were called by all sorts of names. Evidence was also given that the chief use of the pictures was for advertising when an advertisement was printed upon them. Hodges J. answered questions (a) and (c) in the negative and question (b) in the affirmative, and gave judgment for the defendant with costs. From this decision the plaintiff's now appealed to the High Court. Arthur, for the appellants. The pictures are literally within exemption (k). The meaning of "pictures (not being advertising)" is pictures which are not advertising pictures, that is, at the time they are imported. There is no evidence that the words "advertising pictures" have a commercial meaning, and therefore the ordinary meaning of the words must be taken: Markell v. Wollaston (1). Apart from the exemption, these pictures would not be within Item 122. They are not manufactures of paper: Markell v. Wollaston (1). The only pictures which are dutiable are framed pictures for advertising purposes under Item 123.* The change of language from "for advertising purposes" in Items 122 and 123 to "not being advertising" shows that some change of meaning was intended: Hardcastle on Statutory Law, 4th ed., p. 133; Casement v. Fulton (2); R. v. Buttle (3). Even if "not being advertising" means "not for advertising purposes," these pictures cannot be said to be for advertising purposes. The liability of an article to duty is not to be determined by the ultimate use: Clay v. Magone (4). [ISAACS J.-The designation of an article of commerce by merchants and importers, when clearly established, determines the construction of a revenue law when that article is mentioned: Arthur's Executors v. Butterfield (5).] A commercial designation must be the result of established Item 123. 66 Stationery, manufactured, viz:-Advertisements and pictures, framed, for advertising purposes, ad val. 25%." (1) 4 C.L.R., 141. VOL. IV. (2) 5 Moo. P.C.C., 130. 110 CHANDLER & Co. v. COLLECTOR OF CUSTOMS. 1907. H. C. OF A. usage, and must be definite, uniform and general: Sonn v. Magone (1); Maddock v. Magone (2). It cannot be made out by CHANDLER the evidence of one dealer: Berbecker v. Robertson (3); Wollaston on Customs Law, p. 112; Erhardt v. Ballin (4). & Co. v. COLLECTOR OF CUSTOMS. [ISAACS J.-The commercial designation is the first and most important thing to determine: Robertson v. Salomon (5).] If there is any doubt, the matter should be resolved in favour of the importer, as duties are never imposed on citizens upon vague or doubtful interpretations: Hartranft v. Weigmann (6); American Net and Twine Co. v. Worthington (7); Hardcastle on Statutory Law, 4th ed., p. 109; Partington v. AttorneyGeneral (8); Lord Advocate v. Fleming (9). [ISAACS J. referred to Benziger v. United States (10).] Starke, for the respondent. Where articles are described as being for particular purposes that means that they are used for those particular purposes, and the ordinary or predominant use to which the articles are put determines their classification: Meyer v. Cadwalader (11); Meyer v. United States (12). Apart from the exemption, these pictures would be within Item 122 (a), for they are printed matter for advertising purposes, otherwise they would fall within Item 123 as being "manufactures of paper, n.e.i.," and would be liable to 25% ad valorem duty. In the exemption the words "not being advertising" mean "not for advertising purposes," corresponding with "for advertising purposes," in Item 122. There are no special conditions of construction for revenue Acts: Attorney-General v. Carlton Bank (13). [ISAACS J.—The burden of proof is upon the plaintiff in these cases: Arthur v. Unkart (14).] Arthur in reply. The appellants proved their case when they brought themselves within the plain meaning of the words of the exemption. (1) 159 U.S., 417. (2) 152 U.S., 368. (3) 152 U.S., 373. (4) 55 Fed. Rep., 968. (5) 130 U.S., 412. (6) 121 U.S., 609, at p. 616. Cur, adv. vult. (8) L. R. 4 H. L., 100, at p. 122. (9) (1897) A.C., 145. (10) 192 U.S., 38. (11) 89 Fed. Rep., 963. (12) 124 Fed. Rep., 293. (13) (1899) 2 Q.B., 158, at p. 164. (14) 96 U.S., 118. The case was subsequently directed to be re-argued before the H. C. or A. Full Bench. Arthur, for the appellants. Starke, for the respondent. The following additional authorities were referred to:Arnold v. United States (1); Saltonstall v. Wiebusch (2); Armytage v. Wilkinson (3); Attorney-General v. Selborne, Earl of (4); Heward v. The King (5); Magone v. Wiederer (6). Cur. adv. vult. The following judgments were read:GRIFFITH C.J. This is an action brought by the plaintiffs to recover from the defendant a sum of money demanded upon the importation of certain pictures, and paid under protest. The question arises upon the construction of Division XIII. of the Customs Tariff, which is headed "Paper and Stationery," and contains two Items, 122 and 123, and several exemptions, of which that marked (k) is the only one material for the present purpose. Item 122 is "Paper, videlicet-" then follow several sub-paragraphs describing different things which are collectively called "Paper"; and most of which are paper in its ordinary acceptation, as distinguished from things made of paper. The first paragraph (A) is "manufactures of, unframed, for advertising purposes, including price lists, catalogues, and all printed or lithographed matter for such purposes," on which the duty is at the rate of 3d. per lb. Item 123 is "Stationery, Manufactured, videlicet-" then follows an enumeration of a great number of things which are regarded as manufactured stationery, including inkstands. The first things enumerated are "Advertisements and Pictures, framed for advertising purposes." Later on we find "Manufactures of Paper n.e.i." The duty on all the goods enumerated in this item is 25% ad valorem. Exemption (k) is as follows:-" (k) Pictures (not being advertising) viz., autotypes, chromographs, engrav (1) 147 U.S., 494. (2) 156 U.S., 601. (3) 3 App. Cas., 355. (4) (1902) 1 K.B., 388, at p. 396. (5) 3 C. L. R., 117. (6) 159 U.S., 555. 1907. CHANDLER & Co. v. COLLECTOR OF CUSTOMS. September 4. September 27. H. C. OF A. ings, etchings, oleographs, oil paintings, photographs, photogravures, and water colours." 1907. CHANDLER & Co. v. I think it is plain that the Tariff was intended to include all kinds of articles made of paper not mentioned in the exemptions. COLLECTOR It follows that pictures painted or printed on paper are dutiable unless expressly exempted. OF CUSTOMS. Griffith C.J. It is common ground that the goods with respect to which the question arises are pictures and that the material of which they are made is paper. They are of two kinds, one being chromolithographs, which, it is admitted, fall within the term "chromographs" in exemption (k), and which are not mounted, and contain no printing upon them except the name of the publisher. One of them is a pretty picture representing two young people in a canoe. The other kind consists of black and white work mounted on cardboard with a wide margin. They are all unframed. It appears that pictures of both kinds are often used for advertising purposes, that is to say, some advertisement is printed upon the face of the picture itself or on the mount, and there is evidence that they are more largely used for this purpose than for merely decorative purposes. The Collector contends that under these circumstances they fall within Item 122, as being "unframed manufactures of paper for advertising purposes," and do not fall within exemption (k) as "Pictures (not being advertising)," because, he says, the words "not being advertising" mean the same as "not being for advertising purposes." If they do not fall within the exemption, it is to the appellants' interest to contend that they fall within Item 122, as was held by Hodges J. For they would otherwise fall within the words "manufactures of paper n.e.i." in Item 123, on which a higher rate of duty is imposed. In my opinion, this case turns upon the meaning of the words "not being advertising" in exemption (k). In a tariff one does not expect the same verbal precision that is looked for in an enacting clause of a Statute. Regard must, however, be paid to ordinary rules of construction. Now a change in language primâ facie indicates an intention to say something different. It may be evident from the context that there was no such intention, but the prima facie inference is as I have said. I will assume for 1907. & Co. v. OF CUSTOMS. the present that the pictures in question are manufactures of H. C. or A. paper for advertising purposes. Are they then pictures "not being advertising?" The ordinary meaning of these words is CHANDLER either "which do not advertise" or "which are not advertising pictures." If the former meaning is assigned to them, the pictures COLLECTOR in question fall within the exception, for they do not advertise. If the latter, I think that the term "advertising picture" means in ordinary English a picture which advertises some person or some thing. These pictures do neither. I will deal later with the suggestion that the term "advertising pictures" may have a recognized sense in commerce different from its ordinary meaning. This being the primâ facie meaning of the words, why should they be regarded as synonymous with "for advertising purposes It is said that unless they are so read the exception is of a thing specifically enumerated as taxable, because a picture which advertises is an advertisement, and advertisements are specifically mentioned in Item 123. This argument is based upon the common fallacy involved in using a word ("advertisement") in two It is obvious that, although the word "advertisement" is capable of including such things, it is not used in Item 123 in that sense, but in a sense which treats them as something different from the things denoted by the following words, "Pictures (framed) for advertising purposes." senses. I cannot find any sure ground for departing from the ordinary English meaning of the words, or for holding the two phrases to be synonymous. I think, therefore, that the pictures in question are primâ facie within the exemption, and that there is nothing in the context to take them out of it. We have nothing to guide us as to the intention of the legislature beyond their language, which to my mind expresses that pictures made of paper which do not advertise shall be admitted free of duty. If, however, the words are synonymous with "for advertising purposes," I am unable to see my way to the conclusion that the pictures in question fall within the definition. The words "for advertising purposes" do not relate to the intention or state of mind of the importer. Such words are words of differentiation, denoting some quality apparent in the article itself to persons who know its character, and which shows that it is specially fit Griffith C.J. |