BENEDICT & WARNER v. UNITED STATES.

(Circuit Court, S. D. New York.

November 11, 1904.)

No. 3,421.

CUSTOMS DUTIES-CLASSIFICATION-ROCK CRYSTAL INTAGLIOS-PAINTED PRECIOUS STONES.

In construing the provision in paragraph 435, Tariff Act July 24, 1897, c. 11, § 1, Schedule N, 30 Stat. 192 [U. S. Comp. St. 1901, p. 1676], for "precious stones advanced in condition or value from their natural state by cleaving, splitting, cutting, or other process," in reference to intaglios incised in rock crystal (a precious stone), which have been attractively and skillfully painted, the value and salability of the articles being chiefly attributable to the painting, held, that the words "or other process" include such process of painting, and that such intaglios are dutiable under said provision, rather than as manufactures of rock crystal, not specially provided for, under paragraph 115 of said act, c. 11, § 1, Schedule B, 30 Stat. 159 [U. S. Comp. St. 1901, p. 1636].

On Application for Review of a Decision of the Board of General Appraisers.

The decision under consideration (G. A. 5,402, T. D. 24,614) affirmed the assessment of duty by the collector of customs at the port of New York on merchandise imported by Benedict & Warner.

Curie, Smith & Maxwell (W. Wickham Smith, of counsel), for appellants.

Charles Duane Baker, Asst. U. S. Atty.

HAZEL, District Judge. The importation herein consists of rock crystal intaglios painted. Rock crystal is admittedly a precious stone, and, in the form as assessed for duty, is useful only for scarf pins or brooches. Duty was assessed at 50 per centum ad valorem, under paragraph 115 of Tariff Act July 24, 1897, c. 11, § 1, Schedule B, 30 Stat. 159 [U. S. Comp. St. 1901, p. 1636], as "manufactures of rock crystal." The importers claim this liquidation and assessment to have been erroneous, and that a duty of 10 per centum ad valorem, under paragraph 435 (Schedule N, 30 Stat. 192 [U. S. Comp. St. 1901, p. 1676]), as "precious stones advanced in_value," would have been proper and in accordance with the statute. The paragraph in question specifically refers to "precious stones advanced in condition or value from their natural state by cleaving, splitting, cutting, or other process." The Board of General Appraisers, in an exhaustive and apparently well-considered opinion, reached the conclusion that the words "or other process," in paragraph 435, were restricted to processes of the same description, such as cutting, splitting, or cleaving. The government claims that the intaglio, representative of a head or figure incised in the rock crystal, was attractively, skillfully, and expensively painted, and that its value was chiefly attributable to the painting, which embellished and beautified its appearance and added to its salability. All this is unquestionably true. Nevertheless a fair interpretation of the words "or other process," found in paragraph 435, includes the process of painting or coating, as applied to precious stones. It was not seriously denied on the argument that the principle enunciated in Hartranft

v. Wiegmann, 121 U. S. 609, 7 Sup. Ct. 1240, 30 L. Ed. 1012, controlled the disposition of this controversy. In that case the importation consisted of shells of which the epidermis was removed, and which were then embellished and prepared for the market by cleaning with acid and grinding on an emery wheel to expose the pearly interior. They were generallly sold for ornaments, and were also useful for buttons, handles of penknives, etc. The Lord's Prayer was painted or superimposed on some. The court held that grinding and polishing the shells for the market did not advance them beyond the condition of shells. The language of the court upon this point applies here, and may be appropriately quoted:

"We are of opinion that the shells in question here were not manufactured, and were not manufactures of shells, within the sense of the statute imposing a duty of 35 per centum upon such manufactures, but were shells not manufactured, and fell, under that designation, in the free list. They were still shells. They had not been manufactured into a new and different article, having a distinctive name, character, or use from that of shell. The application of labor to an article, either by hand or mechanism, does not make the article necessarily a manufactured article, within the meaning of that term as used in the tariff law.”

This case apparently was not called to the attention of the Board of General Appraisers. Moreover, it is believed that paragraph 115 is not intended to refer to articles of this character. True, the broad language employed has reference to manufactures of rock crystal and other precious stones, but consideration of the more specific provision of paragraph 435 constrains me, though not without doubt, to hold that articles of the kind in question were not intended to be assessed for duty under that provision. The questions presented are not free from doubt. Such indicated state of mind, however, according to the highest authority, must be resolved in favor of the importer. Hartranft v. Wiegmann, supra.

The decision of the Board of General Appraisers is reversed.

LEBER & MEYER v. UNITED STATES.

(Circuit Court, S. D. New York. November 11, 1904.)

1. CUSTOMS DUTIES-CLASSIFICATION-DRUGS-ARTICLES USED IN DYEING OR TANNING.

Articles used in dyeing or tanning are not "drugs," within the meaning of that expression as used in paragraph 20, Tariff Act July 24, 1897, c. 11, § 1, Schedule A, 30 Stat. 152 [U. S. Comp. St. 1901, p. 1628], and paragraph 548, Free List, 30 Stat. 197 [U. S. Comp. St. 1901, p. 1683]; that term being limited in its common acceptance to medicinal preparations, though broadly it may include besides all preparations used in the arts. 2. SAME-LENTISCUM-LENTISCUS-ARTICLES USED IN DYEING OR TANNING

CRUDE ARTICLE.

So-called lentiscum or lentiscus, consisting of the leaves or stems of the pistacia lentiscus, or mastic tree, ground or crushed to a finely powdered condition, is held to be a crude article, and to be within paragraph 482, Tariff Act July 24, 1897, c. 11, § 2, Free List, 30 Stat. 195 [U. S. Comp. St. 1901, p. 1680], relating to "articles in a crude state used in dyeing or tanning."

On Application for Review of a Decision of the Board of General Appraisers.

The decision in question affirmed the assessment of duty by the collector of customs at the port of New York on merchandise imported by Leber & Meyer. Note In re Montgomery, G. A. 4,904, T. D. 22,949.

Hatch & Wickes, for appellants.

D. Frank Lloyd, Asst. U. S. Atty.

HAZEL, District Judge. The merchandise here in question consists of lentiscum or lentiscus, which is the finely ground powdered leaves of the pistacia lentiscus, or mastic tree, used for dyeing or tanning. Duty was assessed thereon by the collector of customs under paragraph 20, Tariff Act July 24, 1897, c. 11, § 1, Schedule A, 30 Stat. 152 [U. S. Comp. St. 1901, p. 1628]. The importers duly protested against such classification, claiming free entry under the provisions of paragraph 482, § 2, Free List, 30 Stat. 195 [U. S. Comp. St. 1901, p. 1680], or, in the alternative, under paragraph 548, 30 Stat. 197 [U. S. Comp. St. 1901, p. 1683]. The first-mentioned paragraph provides for the free entry of "articles in a crude state used in dyeing or tanning, not specially provided for"; while the latter exempts from the payment of duty drugs and certain specified vegetable substances in a crude state, and "woods used expressly for dyeing." The definition of the word "drugs" may broadly include not only medicinal preparations, but generally all preparations used in the arts. The common acceptation of that term, however, would seem to limit its meaning to medicinal substances. The testimony before the Board of General Appraisers, and the further testimony taken after the appeal to this court, is opposed to classifying the imported article as a drug. The proofs show that in a commercial sense lentiscum is a material used in dyeing or tanning, and that it is never imported into the United States except in the pulverized form. The sole question, therefore, is thought to be whether the article, not being specially provided for, is an article in a crude state, used in dyeing or tanning. The government has not attempted to overcome the evidence of the importers that the article imported is so used. The decision of the Board of General Appraisers is based upon an earlier decision (G. A. 4,904) that the merchandise was within the term "drugs," and assessable for duty at one-fourth of one cent per pound and 10 per centum ad valorem, under paragraph 20 of the present tariff The evidence before the court in this case does not support a similar finding. Although the article results from the grinding or crushing of leaves, stems, or shrubs to a finely powdered substance, it may, nevertheless, fairly be considered as crude in view of the purposes for which it was intended. According to the construction which well-considered cases have given the words "crude," "manufactured," and "unmanufactured" for the purpose of tariff classification, the importation, as heretofore stated, may fairly be classified as a crude product. This view is thought to find sup

act.

port in United States v. Godwin (C. C.) 91 Fed. 753; United States v. Merck, 66 Fed. 251, 13 C. C. A. 432; Roessler & Hasslacher Chemical Co. v. United States (C. C.) 94 Fed. 822, affirmed 99 Fed. 552, 39 C. C. A. 651; United States v. Klipstein (C. C.) 123 Fed. 996. It is also clear, from an examination of the various paragraphs bearing upon materials for dyeing and tanning, that Congress intended that materials of the character in question should be admitted free under paragraph 482.

The decision of the Board of General Appraisers is reversed.

UNITED STATES v. DEARBERG BROS.

(Circuit Court, S. D. New York. November 11, 1904.)
No. 3,527.

CUSTOMS DUTIES-PROTEST-SUFFICIENCY-REFERENCE TO SIMILITUDE CLAUSE. Where imported merchandise is subject to the provisions of the socalled similitude clause in Tariff Act Aug. 27, 1894, c. 349, § 4, 28 Stat. 547, prescribing that any article not enumerated in the tariff shall pay the rate of duty applicable to the umerated article which it most resembles, held, that an importer, in protesting against an erroneous assessment of duty on such merchandise, need not refer in his protest directly to said provisions. If he cites the provision enumerating the article which his merchandise resembles, it is a sufficient compliance with Customs Administrative Act June 10, 1890, c. 407, § 14, 26 Stat. 137 [U. S. Comp. St. 1901, p. 1933], requiring that protests shall set forth "distinctly and specifically" the grounds of the importer's objections.

On Application for Review of a Decision of the Board of United States General Appraisers.

The decision in question reversed the assessment of duty by the collector of customs at the port of New York on goods imported by Dearberg Bros., consisting of horsehair braids, erroneously classified as wool braids. Horsehair braids, being nowhere enumerated in the tariff act of August 27, 1894, c. 349, 28 Stat. 509, under which they were imported, became subject to the application of the so-called "similitude clause" found in section 4 of said act (28 Stat. 547), reading in part as follows: "Sec. 4. That each and every imported article, not enumerated in this act, which is similar, either in material, quality, texture, or the use to which it may be applied, to any article enumerated in this act as chargeable with duty, shall pay the same rate of duty which is levied on the enumerated article which it most resembles in any of the particu. lars before mentioned." By virtue of this provision the braids in controversy should have been assessed with duty at the rate (45 per cent. ad valorem) applicable to braids of silk, or of cotton, or other vegetable fiber, which are articles enumerated, respectively, in paragraphs 300 and 263 of said act, Schedules L and I, § 1, c. 349, 28 Stat. 529, 532. The importers, in their protests, contended that the goods should have been classified under said paragraphs, but made no reference to said section 7 as authorizing such classification. The Board of General Appraisers held that the importers' protests were sufficiently specific, and that under the decision of the Circuit Court of Appeals for the Third Circuit in Re Guggenheim Smelting & Refining Company, 112 Fed. 517, 50 C. C. A. 374, and Re Balbach Smelting & Refining Company, G. A. 5,171, T. D. 23,852, it was not necessary to make such reference. The protests were accordingly sustained. The government appealed from this ruling on the ground that the protests were insufficient in that they failed to meet the requirements of section 14, Customs Administrative Act June 10, 1890, c. 407,

26 Stat. 137 [U. S. Comp. St. 1901, p. 1933], wherein it is required that protests shall set forth "distinctly and specifically" the importer's objections to the assessment of duty.

Charles D. Baker, for appellant.

Comstock & Washburn, for appellees.

HAZEL, District Judge. The decision of the Board of General Appraisers holding the protest filed by the importers as sufficient is affirmed. This conclusion finds support in a recent decision of the Circuit Court of Appeals for the Third Circuit in Re Guggenheim Smelting Co., 112 Fed. 517, 50 C. C. A. 374. It was stated at the hearing that the Guggenheim Case was in conflict. with a decision of the Circuit Court of Appeals for this circuit in Hahn v. Erhardt, 78 Fed. 620, 24 C. C. A. 265, where it was broadly held that an importer who intends to object to the action of the collector on the ground that due effect has not been given to the similitude clause of the tariff act is obliged by statute to specifically and distinctly state such objection in his protest. From the protest submitted by the importers it appears that they intended to rely upon other provisions of the tariff act for reduction of the duty assessed by the collector, but in the judgment of the Board of General Appraisers, by reason of a prior decision rendered by this court (Donat v. United States, 134 Fed. 1023), the merchandise in question is similar to silk braids or cotton braids, and accordingly is dutiable under the similitude provision of the act. The facts here would seem to be precisely like those in the Guggenheim Case. In United States v. Salambier, 170 U. S. 621, 18 Sup. Ct. 771, 42 L. Ed. 1167, it was held that a protest need not be made with technical precision, and that the statute is sufficiently complied with if the collector is advised of the importer's objection in order to secure "to the government the practical advantages which the statute was designed to secure." The Circuit Court of Appeals for this Circuit in Shaw v. The United States, 122 Fed. 443, 58 C. C. A. 425, held that a protest claiming free entry under a certain paragraph was sufficient to advise the collector that a claim for exemption from duty was in fact asserted under another paragraph. True, the court found in that case that there was a mistake in the protest, but the nub of the decision indicates a liberal construction of the provisions of the statute, and therefore does not require the importer to make his protest with exactitude and absolute precision. See United States v. Fleitmann & Co., 131 Fed. 396. Such being the holding of the cases, the Board of General Appraisers correctly decided that the protests were sufficient.

An order of affirmance may be entered.