that pruning shears, sheep shears, and sheep-shearing machines were agricultural implements and as such entitled to free entry under that law. Therefore, since it was the will of the lawmakers that certain classes of agricultural implements should be made dutiable under the present law, Congress, having in mind the cited rulings and other judicial decisions on what constituted agricultural implements, exercised extraordinary precaution to make plain and unambiguous the expression of its will and purpose in the premises. Not only did it specifically designate by name the particular classes of agricultural implements upon which duty was to be imposed, but it expressly excluded such implements from the present agricultural implement paragraph (1504) by adding thereto the proviso "That no article specified by name in Title I shall be free of duty under this paragraph." Of that proviso, the United States Court of Customs Appeals, in United States v. American Express Co. (12 Ct. Cust. Appls. 483; T. D. 40693), said: The proviso to paragraph 1504, supra, doubtless was intended to refer to the many agricultural implements which are mentioned eo nomine in Title I of the act of 1922, such as pruning knives and budding knives in paragraph 354; hay, sugar-beet, and beet-topping knives in paragraph 355; animal clippers, pruning and sheep shears in paragraph 357; and shovels, spades, scoops, scythes, sickles, grass hooks, and corn knives in paragraph 373. If, therefore, despite the extraordinary precaution exercised by Congress in clearly expressing its will in the premises, we should, nevertheless, adopt the construction of paragraph 357 here contended for by the plaintiff, we would have this anomalous situation. Handoperated sheep shears and blades for same would pay the high duty imposed thereon by said paragraph, while power-driven sheep shears and blades for same would be free of duty under paragraph 1504 as agricultural implements and parts thereof. And precisely the same situation would prevail concerning hand-operated animal clippers and blades for same and power-driven animal clippers and blades for same, because neither of the classes of articles named could be said to have been specifically and eo nomine provided for in Title I of the present act, if they are not both covered by paragraph 357. This conclusion could not be avoided, because paragraph 1504 not only accords free entry to the implements specifically named therein but also to "all other agricultural implements in whole or in parts, including repair parts," and it could not be denied that a powerdriven sheep-shearing machine is an agricultural implement by reason of its exclusive use in agricultural operations and pursuits. Without the clearest language expressing such an unusual intent and purpose, this court would be unwilling to ascribe to Congress any such design. As we read the law as written, we can conceive of no reason for placing any limitation or restriction upon the scope of the terms "sheep shears" or "animal clippers." If the shearing machines of which the imported blades form parts are not the "sheep shears" mentioned in paragraph 357, then why are they not included within the more general term "animal clippers?" The witness, Lister, testified: Q. You have seen that particular article used?—A. Yes. Q. You have seen similar articles used for clipping the hair of a horse?A. Yes; but with different cutters than this. Q. That is, it is the same principle, is it not?-A. Well, it is in a sense a similar principle. Q. Have you ever seen articles similar to that used in clipping dogs?-A. Similar to what? Q. The one you have in your hand there, that one?-A. Yes. Q. Are you prepared to say that that particular machine that you have in your hand is not an animal clipper?-A. I am prepared to say it is a machine for clipping the wool off of sheep's back. Q. And you are not disputing the fact that a sheep is an animal?-A. I am not, sir. Q. And these particular cutters that you speak of, are they the blades of that particular article?—A. Yes; the moving blade. Nor is it seriously disputed that wool is the hair of the sheep, and that the process of removing it is precisely similar to that employed in removing hair from horses, dogs, etc. It is, however, sought to differentiate the terms "shearing" and "clipping." This we regard as too refined a distinction. The Standard Dictionary defines the noun "clip" as "that which is clipped off; specifically, the woolproduct of one shearing or season." It is therefore not unusual to hear a wool shearing referred to as the "fall clip," or "spring clip," as the case may be. Hence, without unduly extending this opinion, we hold as matter of law that the merchandise in question has been correctly classified as dutiable under paragraph 357 as blades for animal clippers. The protest is therefore overruled and judgment order will issue accordingly. (T. D. 41946) Authority for application for review of reappraisement UNITED STATES v. DICKIE CONSTRUCTION CO. (Reappraisements 48609-A, etc.) 1. An application for review of a reappraisement decision filed while motion for rehearing is still pending will not be dismissed as not filed in time. Denial of such motion leaves the question in status quo and the issue remains to be disposed of by decision of the appellate court. 2. The action of the Assistant Attorney General in charge of customs in filing applications for review in reappraisement proceedings will be presumed to be lawful in the absence of proof that such action was without authority. The position is strengthened in this case by the subsequent ratification by the designated legal authority. United States Customs Court Appellate Term, Third Division APPLICATION for review of decision of MCCLELLAND, Justice (Reappraisement Circular 110) [Motion denied.] Charles D. Lawrence, Assistant Attorney General (Oscar Igstaedter, special attorney), for the United States. Strauss & Hedges (John Francis Strauss of counsel) for the appellee. (January 12, 1927) Before WAITE, ADAMSON, and YOUNG, Justices WAITE, Justice: The history of the litigation herein is as follows: The goods are invoiced as bricks imported from Canada. They were appraised as entered and the then general appraiser sustained the appraised value. His decision was made on September 27, 1926. Pursuant to the law in force the Government, through Charles D. Lawrence, Assistant Attorney General, filed an application for review of the decision of the associate justice, then the general appraiser. On October 27, 1926, the Assistant Attorney General made a motion for a rehearing before the then single general appraiser, which motion was denied on November 4 of the same year. The case now comes before this court upon an application by the Assistant Attorney General for review of the decision below. The importer, the appellee herein, moves to dismiss the application for review. His motion is based upon the following grounds: 1. The fact that the application for review is signed by Charles D. Lawrence, Assistant Attorney General, under the presumed authority granted to him in T. D. 39761, dated July 23, 1923. 2. That subsequent to the filing of the so-called application for review the Assistant Attorney General made motion before Associate Justice McClelland for a rehearing in the above-mentioned cases which motion was, on Nov. 4, 1926, denied by Associate Justice McClelland, and no legal application for review of said decision of Sept. 27, 1926, was filed by anyone within ten days from the date of the denial of said motion for rehearing. Considering them in reverse order from that stated above, we first inquire whether the application for review should be dismissed because it was not made after the determination by the court below on the motion for rehearing. The law as found in section 501 provides that an application for review of the decision of the court below may be filed within 10 days. In this case, to be effective, the application had to be made within 10 days after September 27, 1926. It was in fact made on October 4, 1926, and before the motion for rehearing was made. That motion was made October 27, 1926, and decided, as stated above, on November 4. In our opinion the Government was justified and was proceeding regularly and legally in making its application for review, having but 10 days in which to make said application, and had it been compelled, as claimed in this case, to make the application after the decision on the motion for rehearing, it would have actually abandoned any right for a review in a higher tribunal and thus would have been deprived practically of its day in court. The importer relies for support of its position upon the case of United States v. Vandegrift (2 Ct. Cust. Appls. 434; T. D. 32197), which decision so far as material was in substance that the entry of a motion for a rehearing and its consideration by the Board of General Appraisers must have of necessity left the case within their jurisdiction for determination. It was further decided that the time for an appeal to the United States Court of Customs Appeals begins to run, not from the date of the original decision, but from the date on which the motion for a new trial is disposed of. Admitting all this, the fact remains that the motion for rehearing when denied, which condition is contemplated in the court's rules of practice and procedure, leaves the question in status quo. In other words, the proceedings for a rehearing were a nullity, and the motion when denied fails to change the proceedings in any manner. The application for review having been timely filed and within the time indicated by the law, remained to be disposed of by the appellate division, and in no case of which we are advised does it cease to become a record for consideration by the appellate division until it is formally disposed of by a decision of that tribunal or dismissed by reason of the motion for rehearing in the court below having been granted. We are, therefore, of the opinion that the ground for dismissal under the second point is without support. The first ground for dismissal is based upon the fact, as stated above, that the Assistant Attorney General, Charles D. Lawrence, had no authority to file an application for review. This is based upon that part of section 501 of the tariff law of 1922 which is as follows: The decision of the general appraiser, after argument on the part of the interested parties if requested by them or by either of them, shall be final and conclusive upon all parties unless within ten days from the date of the filing of the decision with the collector an application for its review shall be filed with or mailed to said board by the collector or other person authorized by the Secretary of the Treasury, and a copy of such application mailed to the consignee, or his agent or attorney, or filed by the consignee, or his agent or attorney, with the collector, by whom the same shall be forthwith forwarded to the Board of General Appraisers. It appears that the regulations promulgated by the Secretary of the Treasury in T. D. 39761, a communication from the Treasury Department to the Assistant Attorney General in charge of customs at New York, contains this language: In regard to your suggestion that you be authorized to take appeals to a board of three general appraisers in reappraisement cases, as section 501 of the tariff act of 1922 authorizes the Secretary of the Treasury to designate parties to take appeals from the action of a single general appraiser you are hereby authorized to file such appeals when you consider it necessary. This is signed by McKenzie Moss, Assistant Secretary, and is dated July 23, 1923. Since that time the Assistant Attorney General in charge of customs has exercised that authority. In T. D. 41861, dated November 26, 1926, practically the same. authority was given to the Assistant Attorney General in charge of customs over the signature of A. W. Mellon, Secretary of the Treasury. We consider this an approval of the action of the Assistant Attorney General in such matters by the Secretary of the Treasury. We note further the general authority of the Assistant Attorney General as set forth in the regulations (art. 1244 of the Customs Regulations of 1923). He is in charge of the interests of the Government in the preparation and trial of all protests and appeals in classification, reappraisement, and other cases in which the Board of General Appraisers and Court of Customs Appeals have jurisdiction. Collectors and appraisers and other customs officers should correspond directly with him in matters relating to the trial of cases, applications for rehearing by the board and stipulations for the withdrawal of protests. It is claimed that the expression in the statute in section 501, tariff act of 1922, "an application for its review shall be filed with or mailed to said board by the collector or other person authorized by the Secretary of the Treasury," is exclusive and confines the power existing to the collector and appointees by the Secretary of the Treasury. Admitting for the purposes of this case that is so, there is nothing in this case that negatives the presumption that it was filed as comtemplated and provided for by law. There is nothing in the law that the designation shall be in writing or made a matter of record. It is a routine and administrative function given to the Secretary of the Treasury to facilitate the exercise of the right of appeal and secure to the Government its day in court. The application was filed in pursuance of an unquestioned practice which has obtained since the passage of the law of 1922 when the occasion required it. As stated above, the action of the Assistant Attorney General has been approved and lately specifically ratified by the Secretary of the Treasury in T. D. 41861. In United States v. Peralta (19 How. 347) we find what seems to us this pertinent statement: |