
    Dutton & Co. v. United States
    (No. 1538).
    
    1. Evebyman’s Library Not Textbooks.
    Volumes of a series planned to embrace 1,000 titles, being reprints of the world’s classical literature in fiction, poetry, history, biography, economics, essays, children’s books, etc., do not become textbooks because, on account of their compactness, cheapness, and convenient form, they are largely used by teachers and students as supplementary or illustrative reading or in classrooms.
    2. Same, How Dutiable.
    Such volumes are dutiable under paragraph 329, tariff act of 1913, at 15 per cent ad valorem, and are not admissible free as textbooks under paragraph 426.
    3. Textbook, What Is.
    The term “ textbook ” carries with it the idea of special- preparation for classroom use, such as exceptional title page, introduction, glossary, notes, spacing, and other features. Books which appeal as. readily to the general reader as to the student are not fairly to- be regarded as textbooks.
    
      United States Court of Customs Appeals,
    December 6, 1915.
    Appeal from Board of United States General Appraisers, G. A. 7692 (T. D. 35170).
    [Affirmed.]
    
      McLaughlin, Bussell, Ooe & Sprague and Sharretts, Coe & Hillis (Thaddeus S. Sharretts and Edward P. Sharretts, on the brief) for appellants.
    
      Bert Hanson, Assistant Attorney General (Martin T. Baldwin, special attorney, of counsel), for the United States.
    Before Montgomery, Smith, Barber, De Vries, and Martin, Judges.
    
      
       Reported in T. D. 35987 (29 Treas. Dec., 744).
    
   Martin, Judge,

delivered the opinion of the court:

The merchandise in this case consists of books which were imported under the tariff act of 1913 and which were assessed with duty at the rate of 15 per cent ad valorem under the provision for “ books not specially provided for ” contained in paragraph 329 of the act.

The importers protested against the assessment, claiming free entry for the merchandise under the provision for all textbooks used in schools and other educational institutions,” in paragraph 426 of the same act.

The protest was overruled by the Board of General Appraisers, and the importers now appeal.

The following is a copy of the two paragraphs which thus stand in competition in this case:

329. Books of all kinds, bound or unbound, including blank books, slate books and pamphlets, engravings, photographs, etchings, maps, charts, music in books or sheets, and printed matter, all the foregoing, and not specially provided for in this section, 15 per centum ad valorem. * * *
426. (Free list) Books and pamphlets printed wholly or chiefly in languages other than English; also books and music, in raised print, used exclusively by the blind, and all textbooks used in schools and other educational institutions;

The sole question in the present case is whether the imported books are “textbooks used in schools and other educational institutions,” for if they are within that description they would be entitled to free entry.

The books before the court consist of 150 titles of a series known as “ Everyman’s Library,” published by appellants, and intended to include when completed all of the world’s classics in literature. The series was begun eight years ago and now contains about 700 titles. It is expected to embrace 1,000 titles when finally completed.

The following extract from the testimony of witness John Macrae, vice president of the appellant company, briefly sets out the origin and character of the series:

* * * I arranged for the series. If you would like, I will make a little statement of how J. M. Dent & Sons and ourselves work together. We worked together about two years in bringing together and making practical the scheme of issuing this “ Everyman’s Library ” in a form that would be acceptable for general reading and educational purposes. The problem was to produce the best literature oí the world in a form that appealed to the aesthetic sense of a man or woman but left the booh at a price that would make it possible for every man or woman to buy it. “ Everyman’s,” the title, really arose from that idea. Many of the books have been edited by men of distinction in various branches of learning and walks of life. For instance, the speeches of Lincoln were edited by the late ambassador from England, Mr. Tames Bryce. Introductions have been written by professors of the University of Pennsylvania, Harvard, Yale, Wellesley, and other great institutions.

The following copy of a prospectus issued by appellants will further illustrate the character of the series:

The aim and scope of the series. — “ The true university in these days,” said Carlyle, “is a collection of books.” The-main idea of this new series is to make it easy for everyone to obtain such a collection and get at small cost all that is good, all that has worn well in English literature. It will not offer only the classic authors, it will reprint the Victorians with the Elizabethans, comparatively new authors with the old famous ones, and books for pure pleasure as well as for wisdom and knowledge. Arranged in sections, as of history, philosophy, belles lettres, and so forth, it will make clear the relations of one kind of -book to another, show the debt of a romance like “ Ivanhoe ” to' a romantic historian like Froissart, or set the poets side by side with a book of creative criticism like Coleridge’s “ Biographia Literaria.” Thus for a small amount the reader may have a whole bookshelf of the immortals.

The plan thus conceived has been largely carried out. “ Everyman’s Library” embraces the world’s classical literature in fiction poetry, history, biography, economics, essays, children’s books, etc., and in all about 700,000 volumes of its 700 or more titles are now imported each year. These are sold in part to the general book trade in this country, in part to bookstores which deal especially with students at educational institutions, and in part directly to such institutions themselves. The testimony is not quite clear concerning the number of books sold to the general trade as compared with those sold for use in educational institutions, but while the latter trade is large yet it does not appear to furnish the major market for the publications.

By stipulation between counsel seven exhibits have been filed as representative of the 150 titles now in question, and the argument upon both sides assumes that these titles are fairly representative of the entire series'. Accordingly, the testimony and the briefs treat the present issue somewhat as if it involved the entire library, although in fact only 150 titles of the series are now under protest.

The seven exhibits which are submitted as representative of the importations are Motley’s Dutch Republic, three volumes; Machiavelli’s Prince, one volume; The Federalist, one volume; Shelley’s Complete Poems, two volumes; Marcus Aurelius, one volume; Adam Bede, one volume; and Browning’s Poems, two volumes.

The present volumes are of uniform size, are printed in English, in clear type, upon a good quality of paper, and are compact and convenient for handling. They sell at prices ranging from 35 to 70 cents per volume. The volumes in evidence are plainly bound .in colored cloth, but the series at large includes four styles of binding, viz, cloth, leather, quarter pigskin, and fortified library.

It appears that many titles from “ Everyman’s ” series are sold to students and their teachers for use in educational institutions. These, however, are not books which undertake to set out in their test the facts or principles of any branch of learning as a means of instruction therein, but are simply famous books which are accepted as masterpieces in poetry, fiction, or other form of literature, and serve as models or illustrative standards in the classroom study of general literature as a branch of learning.

In the testimony of Mr. Macrae the following books of the series are mentioned as having been sold by appellants to educational institutions, viz: “Ivanhoe,” “Loma Doone,” “Last of the Mohicans,” “ Kenilworth,” “ Conquest of Granada,” “ Pathfinder,” “ Oliver Twist,” “Mill on the Floss,” “Old Mortality,” “Journal of the Plague Year,” Shakespeare’s Comedies, “Faust,” “The Aeneid,” Strickland’s “ Life of Queen Elizabeth,” Southey’s “ Life of Nelson,” White’s “Natural History of Selburne,” Tyndall’s “Glaciers of the Alps,” Lockhart’s “Life of Scott,” Lincoln’s Speeches, “Voyage of the Beagle,” “ Ethics of the Dust,” and “ Heroes and Hero Worship.” The record also contains letters from prominent educators of various parts of the country, evidencing the purchase by them of numerous other titles of the library. It is said that many of the works just referred to have been used by teachers and students as class books as well as for supplementary reading in the study of literature.

The term “textbooks,” so far as we are advised, is new to tariff legislation, it appearing for the first time in the tariff revision of 1913. The record contains the testimony of a number of book publishers, as well as a number of instructors in educational institutions. These witnesses were asked whether the books in question were textbooks; some of them answered in the affirmative and some in the negative. It does not appear, however, that the term itself has any uniform, definite, and general signification in trade, differing from its common or ordinary acceptation in daily speech. The following definitions are given by standard dictionaries:

Standard Dictionary:

Textbook. — A book used, as a standard work in any branch or course of study; a book that forms the basis for regular class instruction; a manual.

Webster’s Dictionary:

Textbook. — A volume on which a teacher lectures or comments; hence, any manual of instruction; a schoolbook.

Century Dictionary:

Textbook. — A book used by students as a standard work for a particular branch of study; a manual of instruction; a book which forms the basis of lectures or comments.

It must be conceded that some of these definitions admit of a very broad interpretation, for almost any book of acknowledged excellence, whether of poetry, fiction, history, or other kind of literature, as well as any work of science or art, may be used by students as a standard work in the study of literature in general. If so broad an interpretation as this be placed upon the term in question it would be difficult to see how any ordinary English reprints of standard books of art, science, or general literature could be excluded from • the description.

The following extracts taken from the testimony of witness Burgess Johnson, manager of the educational department of the appellant company, illustrate the extent of appellants” claim in that direction:

Q. Do you suppose in Harvard University Library there are lacking any one of the titles involved in “Everyman’s Library”? — A. I don’t know; there may not be.
Q. The chances are that these books are there, word for word, exactly the same text as you have in your library books? — A. Yes, sir.
Q. Ninety-nine per cent of them? — A. Yes, sir.
Q. Various copies of many of them ? — A. Perhaps so; yes.
Q. These books are there in the library for reference by the students, are they not? — A. Yes, sir.
Q. Por use in their classroom work? — A. No; for use as reference books, in the library. If they were used for classroom work, they would buy textbooks to put throughout the class.
Q. Don’t you know as a matter of fact that the general books of most colleges are actually used by the students in their regular classroom work from time to time, and if they don’t have a large number of copies of each book they send the students in one by one to look at the volumes that are there? — A. Yes; if they are urging them to use the reference works in the classroom they send them to the reference library.
Q. You think, then, if Scott’s “ Lady of the Lake ” is present in the reference library in two separate volumes, two copies, or one copy, it is a reference book, and is not a text, but if they have a dozen or 15 copies in the same language, for the use of students, it is a textbook? — A. Yes, sir.
Q. Absolutely the same book from cover to cover ? — A. Yes, sir.
Q. Same -title? — A. Yes, sir.
Q. Same pictures, printing, binding, and everything? — A. If they choose to use that particular edition as a textbook, it becomes a textbook.
Q. What I want to know is whether the same book can under some circumstances be a textbook and under other circumstances not be a textbook? — A. If it is really used as a textbook, it is a textbook. If I choose to buy it for my home to read, even though it is a technical book, I might not call it a textbook.
Q. Would the trade understand it to be a textbook? — A. I think they would call it a textbook; yes.
Q. Then your opinion is that it is not possible in a trade sense for a thing— for a book — in certain hands and for certain uses to be a textbook, and the same book in other hands and for other uses not to be a textbook? — A. I think it is possible; yes.
Q. You think it is possible for it to be both, depending on the circumstances of use? — A. Yes, sir.
Q. Will you tell us, then, under such circumstances, with that kind of a book, how any expert in the trade can tell whether it is a textbook or not if he does not know who has imported it and where it is going? — A. Yes; he can tell. He will find out that the character of it is so scholarly, standards so high, the extra material prepared for it, prepared by educators, and he will assume that it was a textbook. His assumption would be on that side.
Q. Would your scope of the term textbook include any book of general literature that had a scholarly introduction? — A. No; they might be too high priced, or too elaborately illustrated.
Q. Well, if the price was reasonable? — A. If suitable for school use, and it was a book actually useful in the classroom, I should call it a textbook.
Q. Regardless of how wide its use might be outside? — A. Yes, sir.

We can not accept so comprehensive a definition of the term “textbooks” as that set out in the foregoing testimony, for it is apparent that the term was used by Congress in the present paragraph as indicating a limited and exceptional class of books, which were thereby withdrawn or excluded from the dutiable provision for “books of all kinds, bound or unbound, * * * not specially provided for ” in the act. It was evidently the legislative intention to exempt from duty a certain class of books which were appropriated to the use of educational institutions. The provision was not designed primarily to benefit the general book trade of the country.

The present publications, however, cover the entire range. of the world’s classics. They possess no peculiar or exceptional form, but instead appeal both in form and substance to the general reader as much as to educators or students. The books themselves contain no reference to classroom use, nor have they any exceptional title-page, introduction, glossary, notes, spacing, or other feature such as would adapt them particularly for the use of students at school or would -in any manner distinguish them from the ordinary library copies of their respective titles. The volumes, however, are compact, cheap, and convenient to handle, and because of these qualities they are, indeed, purchased quite generally for school libraries and for use by students as supplementary reading or for use in the classroom.

The following extracts from the testimony of two of appellants’ witnesses illustrate this statement:

H. M. MacCracken:

Q. There are other editions which if you could have gotten in bulk would have done just as well? — A. Yes; they contain the text the same as “Everyman’s Library.”
Q. Would they have done just as well as “Everyman’s Library”? — A. Yes, sir.
Q. I-Iave you used Shakespeare in your teaching? — A. Yes, sir; I have used it.
Q. There are a great many editions of Shakespeare, of course? — A. Yes, sir.
Q. A great many are cheap enough and yet good enough to be used in the classroom? — A. Yes.
Q. How many such editions do you know? — A. Do you wish me to name them?
Q. Tell us about how many you know. — A, About 25, I should think.
Q. Any one of those would do practically as well as “ Everyman’s Library ”?— A. The word “ practical ” is a very broad word. If you mean that the book contains a text, reading of which will do practically as well as the reading of any other, yes.
Q. Well, suppose you were going to teach Shakespeare next year and E. P. Dutton’s store should burn down in the meantime and you couldn’t get copies of “ Everyman’s Library.” There are a dozen trade editions that would do just as well ? — A. Yes, sir; I would use my own by preference.

Ernest R. Clark:

Q. Do you consider the books answer the dictionary definition read to you for textbooks? — A. I do.
Q. What is there about those books that makes them particularly suitable for use as such? — A. Simply the fact that in the case of those which we have used we can find nothing cheaper which is equally well printed and well bound and equally complete.

These incidents, however, are not sufficient to establish the character of the present books as textbooks within the meaning of the act, since they are qualities which naturally commend the books to the general readers quite as much as to the classroom student. We are satisfied that the term in question properly bears a more limited meaning than that, and applies only to such books as either set out in their text the facts or principles of some branch of learning which is to be taught to students, or to such as are prepared with especial introductions, notes, glossaries, spacings, or other “ editorial apparatus,” which particularly adapt them for the use of students or instructors engaged in classroom work as a class apart from mere general readers.

The present books can not be said to belong to that class. Their use in the classroom in so far as the same appears from the testimony seems to be limited to the classes in literature. Some of them are indeed placed before such classes as standards or models of the literature which may be the subject of study. These selections seem in most cases to be subject to change according to the desire of the respective instructors. For instance, an instructor may at one term present “ Ivanhoe ” to a class in literature as an example of Scott’s works, and may at the next term present “ Kenilworth ” to a corresponding class for the same purpose. Such books thus used are not entitled to the name of “textbooks used in schools and other educational institutions,” for, if so, the name would include all editions of standard English books which, because of suitable binding and price, might at times be selected by instructors for the use of students in their classes.

The decision of the board is therefore affirmed.  