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“323. Starch, including all preparations, from whatever substance produced, fit for use as starch, two cents per pound.” Section 1, Schedule G, 26 Siat. 588.
“730. Tapioca, cassava or cassada." Section 2, Free List, 26 Stat. 610.
The court, construing these two paragraphs, held that tapioca flour, although it might be used as a starch, was not dutiable under paragraph 323, supra, but was more specifically provided for in paragraph 730, supra, as tapioca. Mr. Justice Peckham, writing for the court, said: “Attempting, as is our duty, to give effect to the statute in all its parts, we think the proper construction of these provisions is that under paragraph 323 a duty is laid upon starch, including all preparations, from whatever substance produced, fit for use as starch, and assuming that tapioca flour is within that general description fit for such use, yet by virtue of paragraph 730 tapioca is placed on the free list, and the substance being tapioca flour, being tapioca in one of these forms, is excepted from the general language of paragraph 323, and is entitled to free entry. It is so excepted because, although assuining it to be fit for use as starch, it is notwithstanding tapioca, and tapioca is in so many words put on the free list.” Lung v. Wise, 176 U. S. 156, 20 Sup. Ct. 320, 44 L. Ed. 412.
We think it logically follows, therefore, that the provision for toilet soap contained in said paragraph 72 is more specific than the general provision for “preparations used as applications to the hair, mouth and teeth,” in paragraph 70.
In Abstract 11,618 (T. D. 27,393) and Abstract 12,612 (T. D. 27.572), involving merchandise of a similar character to that here involved, the Board affirmed classifications made under paragraph 70; but since our attention has been directed to the Lung Case, supra, we are inclined to think that, so far as these abstract decisions bear upon the issue, they should be overruled, for we feel constrained to sustain the claim in the protest that the merchandise should be assessed with duty at the rate of 15 cents per pound, under the provision in paragraph 72 for all descriptions of toilet soap.
The protest is sustained to the extent indicated and the decision of the collector reversed accordingly.
J. Osgood Nichols, Asst. U. S. Atty.
KNAUTH, NACHOD & KUHNE V. UNITED STATES.
No. 4,164. 1. CUSTOMS DUTIES–CLASSIFICATION-WALL POCKETS-LITHOGRAPHIC PRINTS.
Articles composed of cardboard on which lithographic prints have been pasted, and which is cut into forms adapted to be folded into pockets to hang on walls, some of them having pincushions or calendars attached, are not dutiable as "lithographic prints," under Tariff Act July 24, 1897, c. 11, § 1, Schedule M, par. 400, 30 Stat. 188 (U. S. Comp. St. 1901, p. 1672], but as manufactures of paper, under paragraph 407, 30 Stat. 189
[U. S. Comp. St. 1901, p. 1673). 2. SAME-COMMERCIAL DESIGNATION-LITHOGRAPHIC PRINTS.
The expression "lithographic prints," in Tariff Act July 24, 1897, c. 11, $ 1, Schedule M, par. 400, 30 Stat. 188 [U. S. Comp. St. 1901, p. 1672], had no such definite, general, and uniform meaning in the wholesale trade and commerce of the United States at the time of the passage of that act as
to control its construction. 3. SAME-EVIDENCE-ADMISSIBILITY OF PREVIOUS RECORDS.
The Board of General Appraisers admitted as evidence in a case testimony taken previously in another case. This was done over the objec
tion of counsel, who had not appeared in the previous case nor had opportunity of cross-examining the witnesses therein; and the articles involved in the two cases were not shown to be the same. Held, that such
evidence should not have been admitted. 4. SAME-APPEAL FROM BOARD OF GENERAL APPRAISERS-COMPETENCY OF EVI
Though Customs Administrative Act June 10, 1890, c. 407, § 15, 26 Stat. 138 (U. S. Comp. St. 1901, p. 1933], providing appeals from the Board of General Appraisers to the Circuit Court, makes competent evidence admitted by the board, the court may attach very slight weight to such evidence. On Application for Review of a Decision of the Board of United States General Appraisers.
The decision below affirmed the assessment of duty by the collector of customs at the port of New York on imported merchandise. The case involves construction of Customs Administrative Act June 10, 1890, c. 407, § 15, 26 Stat. 138 [U. S. Comp. St. 1901, p. 1934], the pertinent part of which reads as follows:
“The court shall order the Board of Appraisers to return to said Circuit Court the record and the evidence taken by them, and all the evidence taken by and before said appraisers shall be competent evidence before said Circuit Court."
Everit Brown, for importers.
PLATT, District Judge. The merchandise involved in this case is wall pockets. These are made in the following manner: The lithographer makes what is concededly a lithographic print; the same being an ornamental design in color, produced by printing from stone, zinc, or other equivalent material. These lithographic prints are sent to another manufacturer, who pastes them upon cardboard, embosses them, cuts them out, and puts them in the shape of little pockets designed to hang upon the wall and hold odds and ends. They are imported in this condition, all of them having separate pieces accompanying to form the pockets. They are not used in the imported condition, as they are imported in a flat shape, which is commonly known as a "knocked down” condition. Some of these articles are decorated with pincushions, and most of them have calendars attached, which calendars are produced by ordinary 'printing, and not lithographic printing. The goods were assessed for duty at 6 cents per pound, under paragraph 400 of the tariff act of 1897 (Act July 24, 1897, c. 11, § 1, Schedule M, par. 400, 30 Stat. 188 [U. S. Comp. St. 1901, p. 1672]), as “lithographic prints.” The importers claim that they are not lithographic prints, and tha
prints, and that therefore they fall into the more general clause for "manufactures of paper, or of which paper is the component material of chief value,” found in paragraph 407 of said act.
Counsel for the United States makes a preliminary question as to whether paper be in fact the component material of chief value. I am satisfied on the testimony of all the witnesses that it is the component of chief value. Under the decisions the various components of an article must be taken in the condition in which they are found in the article; and there is practically no component in these wall pockets except paper, some of which is in a lithographed condition
and enhanced in value beyond the condition of ordinary paper, but
is still paper.
On the main question involved I am clearly of the opinion that in the wholesale trade and commerce of the United States on and immediately before July 24, 1897, there was no such definite, general, and uniform understanding to the term "lithographic prints” as the decisions require to impose such commercial meaning on terms in the tariff act. The Board of General Appraisers relied on the testimony taken in what may be called the "Overton Case” some years previously. G. A. 4,959 (T. D. 23,169). At the hearing before the board this testimony was offered in behalf of the government; but its acceptance was objected to by counsel for the importers, on the grounds that they had no participation in the proceedings in the Overton Case, that no opportunity for cross-examination of the witnesses in that case was afforded to present counsel, and that the merchandise in the Overton Case is not shown to be the same as the samples in the present case. The samples in the Overton Case were before this court together with the samples of the merchandise now in dispute, and it is evident that there are differences; so that what the witnesses said about the samples in the Overton Case might very possibly not have been said about the samples in the present case. For all these reasons I am of the opinion that such testimony in the Overton Case should not have been admitted by the Board of Appraisers in the case at bar.
Having been admitted and having become by operation of section 15 of the customs administrative act (Act June 10, 1890, c. 407, 26 Stat. 138 [U. S. Comp. St. 1901, p. 1934]) competent evidence in this court, I am nevertheless compelled to give it very slight weight in view of the preceding considerations. Giving it such weight as I think it is entitled to, and also taking into account the subsequent evidence in the case at bar before a referee, including the testimony of witnesses both for the importers and the government, I have reached the conclusion, as previously indicated, as to the commercial meaning of "lithographic prints.” We are therefore relegated to the ordinary meaning of the words; and, as these articles are clearly manufactures of lithographic prints (a provision for which occurred in the act of 1890, but is omitted from the present law), rather than lithographic prints themselves (In re Kursheedt Manufacturing Company, 51 Fed. 159, 4 C. C. A. 262), I feel convinced that they are dutiable, not under paragraph 400, but under paragraph 407, of the act.
The decision of the Board of General Appraisers is reversed.
LEERBURGER V. UNITED STATES.
(Circuit Court, S. D. New York. June 11, 1907.)
1. CUSTOMS DUTIES-PROTEST-SUFFICIENCY.
An importer contended in his protest that merchandise was "woven fabrics in the piece, dyed,” and dutiable "at 60 cents per pound," when he should have contended for 50 cents per pound, the rate on goods in the gum; the relevant portion of the tariff act being: "If in the gum, fifty
cents per pound, and if dyed in the piece, sixty cents per pound.” Held, that the protest was a sufficient reference to the proper provision to satisfy the requirements of Customs Administrative Act June 10, 1890, c. 407, §
14, 26 Stat. 137 [U. S. Comp. St. 1901, p. 1933). 2. SAME-REFERENCE TO WRONG PARAGRAPH.
An importer in his protest contended that merchandise should have been classified under Tariff Act July 24, 1897, c. 11, § 1, Schedule L, par. 383, 30 Stat. 186 [U. S. Comp. St. 1901, p. 1670), the terms of which were inapplicable to such goods; and the language of the protest showed that he had intended to refer to paragraph 387, which did apply. Held, that the protest should be considered as referring to the latter paragraph.
On Application for Review of a Decision of the Board of United States General Appraisers.
In the decision below the Board of General Appraisers affirmed the assessment of duty by the collector of customs on merchandise imported by George Leerburger, on the ground that, though the goods had been improperly assessed, the importer was not entitled to relief, because his protest did not satisfy the requirements of Customs Administrative Act June 10, 1890, C. 407, § 14, 26 Stat. 137 [U. S. Comp. St. 1901, p. 1933]. This section provides that importers' protest must set forth "distinctly and specifically" the "objections” to the assessment. The pertinent portion of the paragraph under which the merchandise should have been classified is as follows: "Woven fabrics in the piece, not specially provided for in this act, weighing not less than one and one-third ounces per square yard and not more than eight ounces per square yard, and containing not more than twenty per centum in weight of silk, if in the gum, fifty cents per pound, and if dyed in the piece, sixty cents per pound,
but in no case shall any of the foregoing fabrics pay a less rate of duty than fifty per centum ad valorem.” Extract from Tariff Act July 24, 1897, c. 11, § 1, Schedule L, par. 387, 30 Stat. 186 [U. S. Comp. St. 1901, p. 1669].
The importer asserted in his protest that the goods were dutiable “at 60 cents per pound (or 50 per cent. ad valorem) under the first clause of paragraph 388, * * * being woven fabrics in the piece, dyed, weighing not less than 143 ounces nor more than 8 ounces per square yard, and containing not more than 20 per cent. in weight of silk."
The Board observed as follows in the opinion filed in the case: “Howell, General Appraiser. The alternative claim that the goods are dutiable under paragraph 388 is undoubtedly a clerical error. The language used in setting forth the claim under this paragraph shows that the importer intended to cite paragraph 387, which contains the provision for woven silk fabrics, and we therefore construe this claim as having been made under that paragraph. Shaw v. U. S., 122 Fed. 443, 58 C. C. A. 425 ; U. S. v. Hunter (C. C.) 124 Fed. 1005; Weil v. U. S. (C. C.) 124 Fed. 1006. But, even construing this claim as having been made under paragraph 387, the protest is nevertheless insufficient, for the importer has failed to point out the provision of the statute which actually controls. The goods are not "piece dyed” goods dutiable at the rate of “60 cents per pound," but not less than 50 per cent. ad valorem, as claimed, but are woven silk fabrics “in the gum,” dutiable at the rate of 50 cents per pound, but not less than 50 per cent. ad valorem. The protest is therefore overruled for failure to make the proper claim, without an affirmance of the decision of the collector. U. S. v. Bayersdorfer, 126 Fed. 732, 62 C. C. A. 16; Hanano v. United States (D. C.) Estee's Hawaiian Rep. 344 (T. D. 24,946); U. S. v. Fleitmann, 137 Fed. 476, 69 C. C. A. 624.
D. Macon Webster, for importer.
MARTIN, District Judge. The petitioner prays for a review of the decision of the Board of United States General Appraisers as to the rate and amount of duty on certain merchandise imported by him by steamer St. Louis, November 12, 1900.
The merchandise consists of woven fabrics in the piece weighing not less than 113 ounces nor more than 8 ounces per square yard, to wit, 1.37 ounces per square yard, and containing not more than 20 per cent. in weight of silk in the gum, dutiable at the rate of 50 cents per pound, but not less than 50 per cent. ad valorem, as specially provided for in Tariff Act July 24, 1897, c. 11, § 1, Schedule L, par. 387, 30 Stat. 186 [U. S. Comp. St. 1901, p. 1669). Duty was assessed by the collector at the rate of 8 cents per square yard and 30 per cent. ad valorem, under the provisions of paragraph 311 of said act. The collector found that cotton was the component material of chief value. The Board of Appraisers found that the chief value was of silk, and I affirm that finding. The fabrics in this case are the same as those involved in a previous case between the same parties, except in this case the goods were imported in the gum, while in the previous suit they were piece dyed. In the previous case the court found that the chief value was silk, the same as it is in this case. No claim was made on hearing but that an error was made by the collector; but the government insists that the protest does not distinctly and specifically set forth the importer's reasons for his objection to the action of the collector, in that:
First. He refers to paragraph 388, instead of 387.
Second. He refers to the fabrics as being dyed in the piece, instead of being in the gum. The Board of Appraisers excused the error as to the paragraph as being clerical, but overruled the protest without affirmance of the decision of the collector because the word “dyed” is used in the protest. I concur with the ruling of the Board as to the error in the protest being clerical in reference to the paragraph, but to hold that the government should keep the excess of duties collected because the word “dyed” is used in the protest seems to me more technical than just. The importer, in using the word “dyed” in his protest, made an error against himself of 10 cents per pound, provided no reference is made to the provision for 50 per cent. ad valorem. This error evidently arose from the fact that the goods involved in the previous case were fabrics dyed in the piece. The question of fact in dispute between the importer and the collector in the previous case and in this case was as to whether cotton or silk was the component material of chief value. In the former case, that fact was found with the importer, the same as that fact is now found with the importer in this case. The protest distinctly and correctly sets forth the date, place, and manner of importation, the material of which the goods were manufactured, the chief value of such material, and as being woven fabrics in the piece, weighing not less than 113 ounces nor more than 8 ounces per square yard, and containing not more than 20 per cent, in weight of silk. If no reference had been made in the protest to any paragraph of the tariff act, such a description must have directed the collector's attention to such provisions of the law as relate to woven fabrics in the piece, of the weight therein described, and containing not more than 20 per cent. in weight of silk, and, whether dyed in the piece or in the gum, the duty must be at least 50 per cent. ad valorem and up to 50 cents per pound if in the gum, and 60 cents