This statute should not be so construed as to lead to unreasonable and absurd results. United States v. Merck & Co., 8 Ct. Cust. Appls. 137, T. D. 37269; Blass Co. v. United States, 12 Ct. Cust. Appls. 481, T. D. 40692. By holding the additional cumulative. duties to apply only where both tungsten and molybdenum are present, this anomalous situation results: The importer brings in steel containing tungsten only and steel containing molybdenum only, on the same ship and evades the additional cumulative duty; these are sold to the smelter or maunfacturer, thrown together in the melting pot and a product results which would have been liable to a heavy additional rate of duty, if so imported. If there is, as a reason for these duty rates on tungsten and molybdenum, a desire to encourage and promote domestic production, such idea is entirely lost sight of by such a construction. That there is such a reason for this legislation, I can not doubt, and this reason I have endeavored to set forth in my dissenting opinion in Watson, Geach & Co. v. York Metals Co., 14 Ct. Cust. Appls. 449, 471-473, T. D. 42112.

There was but one witness who testified in the case at bar. If he had testified, as indicated by the offers to prove, he would have stated that there was a steel that contained tungsten only, a steel that contained molybdenum only, and a steel that contained both; that molybdenum was added to steel for the purpose of increasing its toughness, and tungsten for the purpose of increasing its heatresisting powers, and that these elements are not substitutes for each other. What is there here to justify such a radical distinction as the majority opinion holds to exist between the duties to be imposed on the one hand on the molybdenum or tungsten content of steel, when found separately, and upon the same content, when found together? There is here no showing that such steel is worth more, or sells at a better price, or is better for manufacturing or other processes. For anything that may appear, such a mixture of elements in the same steel, may be a detriment and not an advantage. General Appraiser Fischer, in the Greaves case, quoted supra, referred to the hearings before the Ways and Means Committee when H. R. 7456 was being considered. In addition to the matters referred to by him it appeared in said hearings that "the steel in which molybdenum is used is not tool steel," and that molybdenum was used to toughen steel and to make it work and machine more easily, for such uses as parts of automobiles, etc. Tariff hearings, H. of R., Tariff Act of 1922, Part II, pp. 742-747. As generally known, and as shown by the offers of proof herein, the well-known use of tungsten in steel is to harden and give to the steel heat-resisting qualities, and it requires no inventive mind to discover that the respective properties of molybdenum and tungsten might not be harmoniously combined in steel manufacturing. Reference is had to "The Summary of Tariff Infor

mation, 1921, relative to H. R. 7456," pages 367, 368, where it is said: "Molybdenum, either alone or in conjunction with tungsten, has been recommended for giving high-speed cutting qualities to steel, but many manufacturers have found it unsatisfactory for that purpose.

It is urged that the language in the second proviso

Provided further, That an additional cumulative duty of 65 cents per pound on the molybdenum content in excess of six-tenths of 1 per centum, and 72 cents per pound on the tungsten content in excess of six-tenths of 1 per centum shall be levied, collected, and paid on any material provided for in paragraph 304 containing molybdenum and tungsten.

is only intended to apply to the alloying metal content in a special class of steel containing both tungsten and molybdenum. If this be true, then it applies to a class of steel not theretofore mentioned either in paragraph 304 or 305, or elsewhere in the Tariff Act of 1922. But the language is: "An additional cumulative duty." If the construction of the majority is correct, this duty is "additional" and "cumulative" to what? There having been no original provision for steel containing both tungsten and molybdenum, it could not be additional and cumulative to anything. It follows that it could not have been the congressional intent to so limit the effect of this language. A more sensible and reasonable construction would be to say that Congress having indicated, in the first duty provision of paragraph 305, certain alloying metals, to-wit: nickel, cobalt, vanadium, chromium, tungsten, molybdenum, and any other metallic element used in alloying steel, as subject to additional duties when found in steel, intended by the last proviso of the paragraph to select from this list of alloying metals, two only, namely, tungsten and molybdenum, and to impose upon them a second additional duty, and this only when they were found in such steel as was mentioned in paragraph 304.

For the reasons suggested, I think the judgment below should be affirmed.

DISSENTING OPINION

BLAND, Judge: I agree with all that has been said in this case by Presiding Judge Graham in his dissenting opinion, which was our position, substantially, in the case of Watson, Geach & Co. (Inc.) v. York Metal & Alloys Co., 14 Ct. Cust. Appls. 449, T. D. 42112. Ànd, in addition, I wish to emphasize, as strongly as possible, that in a case of this character, where the court is confronted with a construction of a tariff provision which will lead to such a result as to be not within the reasonable intent of Congress, it is its most imperative duty to refuse to apply the words in their narrow and strict sense, but to give them such meaning as comports to the obvious intent of the legislature. It should be remembered that the intent of the law

is the law, and that all rules of construction are aids of the courts in trying to ascertain the intent. Unless absolutely unavoidable, the courts will refuse to give a meaning to a legislative act which attributes to the lawmakers the doing of an absurd thing. This court and other courts have frequently said that, while unambiguous words call for no construction, nevertheless if unambiguous words are used in such a manner as to produce ambiguity, then it is the duty of the court to look to the purpose of the act and to attempt to construe the law in accordance with the intent of its framers. Lewis's Sunderland, Stat. Constr., sec. 633; In re Cahn, Belt & Co., 27 App. D. C. 173; Fields v. United States, 27 App. D. C. 433; United States v. Day, 27 App. D. C. 458; Moss v. United States, 29 App. D. C. 188; Garrison v. District of Columbia, 30 App. D. C. 515; District of Columbia v. Dewalt, 31 App. D. C. 326.

Section 633 of Lewis's Sunderland, Stat. Constr. is quoted in In re Cahn, Belt & Co., supra, as follows:

The intent is the vital part, the essence of the law, and the primary rule of construction is to ascertain and give effect to that intent. "The intention of the legislature in enacting a law is the law itself, and must be enforced when ascertained, although it may not be consistent with the strict letter of the statute. Courts will not follow the letter of a statute when it leads away from the true intent and purpose of the legislature and to conclusions inconsistent with the general purpose of the act."

This would seem to be the generally accepted rule which the courts ordinarily follow in a case like the one at bar. That Congress must have intended to levy the additional cumulative duty upon molybdenum or tungsten, if either were found in certain forms and shapes of steel in the prescribed quantity, is shown, not only by the context of the paragraph, but by the whole steel schedule, as well as the entire history of steel legislation. This intent should be declared to be the law. United States v. Stone & Bowner Co. et al., 274 U. S. 225. I, therefore, dissent from the opinion of the court.

UNITED STATES v. HAMMEL, RIGLANDER & CO. ET AL. (No. 30081)

1. WATCH CRYSTALS-OPEN MARKET-TRADE DISCOUNT.

Where watch crystals were sold to all wholesale dealers and a trade discount of 15 per centum was allowed by the seller on identically the same conditions to every wholesale dealer, local or foreign, it can not be said that such a market, whether for home consumption or exportation, was not a free, open market. 2. USUAL WHOLESALE QUANTITIES IN ORDINARY COURSE OF TRADE-PRE

SUMPTION.

The uncontradicted evidence showing that a trade discount of 15 per centum was allowed only to wholesalers and it appearing that the importers in this case are wholesalers and have been allowed a 15 per centum discount on each importation, it must be presumed in the absence of any evidence to the con

1T D. 42716.

trary that the importers purchased the merchandise in question in the usual wholesale quantities and in the ordinary course of trade. If a sliding scale of discounts to wholesalers had been proved, a different question would have been presented.

3. EVIDENCE-FINDINGS OF LOWER COURT-WEIGHT.

Findings of the lower court that the invoice and export values of the merchandise in question were higher than the domestic value and that the discount of 15 and 1 per centum was allowed to every purchaser exporting such merchandise are supported by substantial evidence and are sufficient to sustain the judgment below.

United States Court of Customs Appeals, April 9, 1928

APPEAL from United States Customs Court, Circular Reappraisement 682 [Affirmed.]

Charles D. Lawrence, Assistant Attorney General (John F. Kavanagh, special attorney, of counsel), for the United States.

Curie, Lane & Wallace (Herbert M. Wallace of counsel) for appellees.

[Oral argument February 7, 1928, by Mr. Kavanagh and Mr. Wallace]

Before GRAHAM, Presiding Judge, and SMITH, BARBER, BLAND, and HATFIELD, Associate Judges

SMITH, Judge, delivered the opinion of the court:

Watch crystals imported from France were reappraised at their invoice value, less a trade discount of 15 per centum and a discount for cash of 1 per centum. That decision was affirmed on appeal to the United States Customs Court. From the judgment of the United States Customs Court, affirming the reappraised value, an appeal was taken by the Government to this court. In support of that appeal it is contended, first, that the discount of 15 per centum was allowed to three classes of wholesalers and that the amount of discount depended upon the quantity imported by the wholesaler for a period of one year; second, that a 15 per centum discount was given to purchasers who bought a yearly total of 2,000,000 watch crystals and that that discount was not given in the ordinary course of trade or for the usual wholesale quantity. The Government does not question the invoice prices or the importer's right to deduct therefrom the discount for cash, but does contend that 15 per centum should not have been deducted from invoice prices to make appraised value.

At the hearing on reappraisement Moses M. Riglander testified on behalf of the importers that he had been an importer of watch crystals for 31 years; that the invoice price, less a discount of 1 per centum and 15 per centum, was the price paid for the imported merchandise and that said discounts are noted on the invoices; that from the year 1919 until November, 1921, the witness was allowed discounts from list prices of 3 per centum, 15 per centum, and 20 per centum; that from November, 1921, to May, 1924, the discounts allowed were 3 per

centum, 10 per centum, and 15 per centum; that ever since May, 1924, the discounts allowed from the list prices of watch crystals were 1 per centum and 15 per centum; that ever since 1919 the witness has been given the discount of 15 per centum and that until February, 1925, his imported watch crystals were appraised at the port of New York with an allowance of 15 per centum discount; that the 15 per centum discount does not appear on the price list because it is a wholesale trade discount and because the price list is circulated among the retail trade; that the wholesale price of watch crystals is 15 per centum less than the retail price and the price to small consumers; that only wholesalers get the 15 per centum reduction from list prices; that in some instances wholesale quantity might mean 10,000 gross and in other instances only 100 gross; that only wholesalers get the 15 per centum discount, which is the regular trade discount to the United States, France, England, Germany, and other countries; that jobbers are sometimes wholesalers, but, whether jobbers are wholesalers or not, they do not get a lower price than wholesalers; that the dollar prices of the invoices converted into francs were about 50 per centum higher than the French list prices. Henry Lorsch, a witness on behalf of the importers, testified that his firm was an importer of watch crystals and watchmakers' supplies and tools and had purchased watch crystals from the Verreries Unies for about 25 years; that from September, 1919, until some time in October, 1920, the discount allowed by the factory was 15, 20, and 3 per centum; that from October, 1920, until May, 1924, the discount was 15 and 3 per centum, and that ever since May 1, 1924, the discount has been 15 and 1 per centum; that his firm imported watch crystals from the factory in France every week or two and that the firm paid for such importations the list price thereof less the discount of 15 and 1 per centum; that until February or March, 1925, the discount of 15 per centum was always allowed by the appraisers, but that since February or March, 1925, they have refused to deduct from invoice prices the discount of 15 per centum; that watch crystals differ in price, size, and kind; that manufacturers send their price lists to wholesalers and do not send such lists to anyone who may write for them; that the 15 per centum discount is a trade discount.

Alphonse V. Walter testified for the importers that he was a member of the firm of Albert Berger & Co., wholesale importers of watch crystals and optical goods; that his firm purchased watch crystals from the Verreries Unies and had been buying such watch crystals for 25 years; that since 1924 Albert Berger & Co. have been allowed a discount from list prices of 15 and 1 per centum; that prior to that year the firm was allowed 15 and 3 per centum; that in the year 1919 a discount of 20, 15, and 3 per centum went into effect; that that discount was changed to a discount of 15 and 3 per centum and subsequently to 15 and 1 per centum; that until March, 1925, imported watch crystals