judges. In the discharge of their manifold duties, the judges must frequently be absent on circuit for extended periods. The court having its offices in New York, many of its judges are constantly available to fill vacancies in divisions. This, no doubt, was fully considered by the Congress in enacting said section 518, wherein it is stated:

The presiding judge of the court shall be competent to sit as a judge of any division, or to assign one or two other judges to any of such divisions in the absence or disability of any one or two judges of such division.

It does not at all appear in harmony with the trend of judicial decision that, with such powers, whereby the parties litigant may not be delayed, and where the cause can proceed forthwith to a decision upon its merits, the failure of two judges, sitting alone on a division, to agree, should cause an absolute failure to attain the purposes of the litigation.

Nor is it in harmony with the evident legislative intent, as expressed in the act. Said section 518 provides:

A majority of the judges of any division shall have full power to hear and decide all cases and questions arising therein or assigned thereto.

In other words, two judges may hear a case, in the case of absence or disability of one of the judges of the division, and, if they agree, can decide it. But, certainly, if they cannot agree, they have decided nothing, and the cause should go to the full division, which can decide it.

Again, section 501 of said act provides that when a division is sitting in review in reappraisement matters, it shall

state its action in a written decision, to be forwarded to the collector, setting forth the facts upon which the finding is based and the reasons therefor.

If two judges be sitting, and they disagree, there can be no such statement of facts and reasons therefor. Hence no statement is forwarded to the collector. The same section also provides for an appeal from this decision, upon a question or questions of law only, to this court. If the judgment below is to be affirmed because of the fact alone, that the two judges do not agree, there is no question of law to present upon appeal, because none has been decided below. When there is no finding of facts, there is nothing upon which a judgment may be based. United States v. Iwai, 16 Ct. Cust. Appls. 56, T.D. 42720; United States v. Alitary Mica Co., 17 C.C.P.A. (Customs) 284, T.D. 43692.

We are therefore of the opinion that the disagreement between Judges Cline and Evans did not, in law, constitute an affirmance of the judgment of the single judge. The case should have been placed upon the calendar for a retrial by the full division.

Whether Acting Presiding Judge McClelland acted within his statutory powers in designating Judge Tilson to sit with Judges Cline and Evans in the consideration of these cases, is a point which need not now be decided, for, as we view this record, the judgment must be reversed and the cause remanded for a new trial, for the following

reasons:

It appears from the affidavit, and from the concessions of counsel upon oral argument here, that neither appellants nor their counsel had any notice of the assignment of Judge Tilson to sit with Judges Cline and Evans on Division Three, that these cases were not placed upon the calendar thereafter, that appellants and their counsel were given no opportunity to be heard in the matter, and that the first notice to appellants and their counsel was the rendition and promulgation of the said purported decision.

Certainly, this was not in conformity with the letter of the law. Section 501 of the Tariff Act of 1922, hereinbefore quoted, prescribes what shall constitute a hearing before the Board of General Appraisers (now United States Customs Court) in such matters. The board (now division) shall consider the case upon the samples and the record made in the court below. Then follows this significant statement: "After argument on the part of the parties if requested by them or either of them," the division shall decide the matter.

How may a party avail himself of this right to be heard, if the case be not set for hearing and if he have no notice of the proceedings? An essential right of the appellants was taken from them when they were deprived of the right to be heard, or, at least, to request to be heard. It is argued that this was not important, as the case was decided upon the written record from the lower court. The opportunity to present one's cause to the court hearing a cause has always, in American jurisprudence, been held to be an essential right. United States v. Saunders et al., 5 Ct. Cust. Appls. 270, T.D. 34446; Windsor v. McVeigh, 93 U.S. 274. Here it must certainly be so held, as the statute expressly provides for it.

The appellants are entitled, under the provisions of said section 501, to a hearing before a division of the United States Customs Court, consisting of three judges, including the right to argue the causes, if requested, and a decision by the majority of such a division. This, we are of opinion, they have not had, and that a new trial of the causes should be ordered, that the parties may have the remedies that the law contemplates. The judgment of the United States Customs Court, Third Division, is therefore reversed, and the causes are remanded for a new trial.

ABSTRACTS OF OTHER COURT CASES

The following abstracts of decisions of the United States Customs Court at New York are published for the information and guidance of officers of the customs and others concerned. While the decisions are not of sufficient general interest to print in full, the summary herein given will be of assistance to customs officials in easily locating cases and tracing important facts.

BEFORE THE SECOND DIVISION, JUNE 19, 1933

No. 24518.-Protests 634697-G, etc., of A. S. Rosenthal Co., Inc. (New York). HEMSTITCHED SILK HANDKERCHIEFS. - Corded silk handkerchiefs classified at 75 percent ad valorem under paragraph 1430, Tariff Act of 1922, are claimed dutiable at 60 percent under paragraph 1209.

Opinion by TILSON, P. J. It was stipulated that the merchandise consists of corded silk handkerchiefs the same as those passed upon in Butler v. United States (20 C.C.P.A. 209, T.D. 45986). The claim at 60 percent under paragraph 1209 was therefore sustained.

No. 24519.- Protests 557842-G, etc., of G. Hirsch Sons, Inc. (New York).

PULL CHAINS. -Pull chains for electric lamps classified at 90 percent ad valorem under paragraph 1529, tariff act of 1930, are claimed dutiable at 60 percent under paragraph 1503 or 218 (f).

Opinion by TILSON, P. J. It was stipulated that certain of the merchandise consists of pull chains in chief value of beads. These were held dutiable at 60 percent under paragraph 1503. Shade pulls stipulated to be in chief value of colored glass were held dutiable at 60 percent under paragraph 218 (f).

No. 24520.- Protests 336921-G, etc., of Madeira Linen Importing Co. (New York).

EMBROIDERED LACES.-Embroidered laces classified at 90 percent are claimed dutiable at only 75 percent ad valorem under the provisions of paragraph 1430, Tariff Act of 1922.

Opinion by TILSON, P. J. In accordance with stipulation of counsel and on the authority of Beyda v. United States (T.D. 46177) embroidered laces and articles were held dutiable at 75 percent under paragraph 1430 as claimed.

No. 24521.-Protests 310379-G, etc., of J. J. Gavin & Co. et al. (New York).

EMBROIDERED-NET VEILS-ARTIFICIAL FLOWERS. - Merchandise classified at 90 percent ad valorem under paragraph 1430, Tariff Act of 1922, is claimed dutiable at 75 percent under the same paragraph or at 60 percent under paragraph 1419.

(749)

Opinion by TILSON, P. J. It was stipulated that certain items consist of embroidered-net veils. These were held dutiable at 75 percent under paragraph 1430. Artificial flowers stipulated to be similar to those passed upon in RobinsonGoodman v. United States (17 C.C.P.A. 149, T.D. 43473) were held dutiable at 60 percent under paragraph 1419.

No. 24522.- Protest 189894-G of J. Pollak (New York).

EMBROIDERED-LACE CURTAINS.-Lace curtains classified at 90 percent are claimed to be embroidered and dutiable at only 75 percent ad valorem under the provisions of paragraph 1430, Tariff Act of 1922.

Opinion by TILSON, P. J. It was stipulated that the merchandise consists of embroidered-lace curtains the same as those passed upon in Billwiller v. United States (T.D. 44911). They were therefore held dutiable at 75 percent under paragraph 1430.

No. 24523.-Protests 181635-G, etc., of Dorros Bros. (New York).

EMBROIDERED-LACE VEILS.-Embroidered-net or lace veils classified at 90 percent are claimed dutiable at only 75 percent ad valorem under the provisions of paragraph 1430, Tariff Act of 1922.

Opinion by TILSON, P. J. It was stipulated that the merchandise consists of embroidered-net veils and embroidered-lace veils the same as those the subject of United States v. Case (20 C.C.P.A. 185, T.D. 45979). The claim at 75 percent under paragraph 1430 was therefore sustained.

No. 24524.-Protests 166834-G, etc., of I. Magnin & Co. et al. (New York). ALENÇON LACES. - Alençon laces classified at 90 percent are claimed dutiable at only 75 percent ad valorem under paragraph 1430, Tariff Act of 1922.

Opinion by TILSON, P. J. It was stipulated that the merchandise consists of Alençon laces or articles composed in part of Alençon laces similar to those the subject of United States v. Caesar (18 C.C.P.A. 106, T.D. 44067). The claim at 75 percent under paragraph 1430 was therefore sustained.

No. 24525.- Protests 108756-G, etc., of Doublesse Manufacturing Co. (New York).

EMBROIDERED-NET ARTICLES. - Merchandise classified at 90 percent ad valorem under paragraph 1430, Tariff Act of 1922, is claimed to be embroidered and dutiable at only 75 percent under the same paragraph.

Opinion by TILSON, P. J. It was stipulated that the merchandise consists of embroidered-net flouncings and trimmings the same as those passed upon in United States v. Ramig (17 C.C.P.A. 365, T.D. 43809). The claim at 75 percent under paragraph 1430 was therefore sustained.

No. 24526. Protests 304474-G, etc., of H. Wolff & Co. (New York).

SHADE PULLS. -Shade pulls classified at 90 percent ad valorem under paragraph 1430, Tariff Act of 1922, are claimed dutiable as articles in chief value of colored glass at 55 percent under paragraph 218.

Opinion by TILSON, P. J. It was stipulated that the merchandise consists of shade pullers composed in chief value of cut or colored glass. The claim at 55 percent under paragraph 218 was therefore sustained.

No. 24527.-Protest 637010-G of M. H. Rogers, Inc. (New York).

WOOL PANELS. - Panels classified at 90 percent ad valorem under paragraph 1430. Tariff Act of 1922, are claimed dutiable as manufactures of wool at 50 percent under paragraph 1119.

Opinion by TILSON, P. J. It was stipulated that the merchandise consists of panels in chief value of wool like those the subject of Abstract 15815. The claim at 50 percent under paragraph 1119 was therefore sustained.

BEFORE THE SECOND DIVISION, JUNE 20, 1933

No. 24528.-Protest 576359-G of Bryant & Heffernan, Inc. (New York).

PAMPHLETS OF FOREIGN AUTHORSHIP.-Pamphlets entitled "Holland" by M. de la Prise, "Holland Where Seaside Means So Much," and "Introduction to Holland" by Edgar Brown, classified at 25 percent ad valorem under paragraph 1410, Tariff Act of 1930, are claimed to be of bona fide foreign authorship and dutiable at only 15 percent under the same paragraph.

Opinion by DALLINGER, J. In accordance with stipulation of counsel the pamphlets in question were held dutiable at only 15 percent under paragraph 1410 as claimed.

No. 24529.- Protest 496377-G of Benziger Bros. (New York).

PAMPHLETS IN LANGUAGES OTHER THAN ENGLISH.-Pamphlets classified at 25 percent ad valorem under paragraph 1310, Tariff Act of 1922, are claimed entitled to free entry under paragraph 1529 as "pamphlets printed wholly or chiefly in languages other than English."

Opinion by DALLINGER, J. The testimony showed that 60 percent of the words in the pamphlets are English and 40 percent are Latin, and in 13 of the 24 pages the space taken up by the Latin words is greater than the space occupied by the English words. It was held that the plaintiffs failed to prove that the collector's classification was erroneous and that the pamphlets are printed wholly or chiefly in languages other than English. The protest was therefore overruled.

No. 24530.-Protests 544438-G, etc., of Draeger Shipping Co. et al. (New York). PAPER, UNSENSITIZED. - Paper classified at 5 cents per pound and 15 percent ad valorem under paragraph 1405, Tariff Act of 1930, is claimed dutiable as unsensitized basic paper at 5 percent ad valorem under the same paragraph.

Opinion by DALLINGER, J. It was stipulated that the paper in question is similar to that the subject of Abstract 23435. It was therefore held dutiable as unsensitized basic paper to be sensitized for use in photography at 5 percent ad valorem under paragraph 1405.

No. 24531.-Protest 622777-G of Talens & Son, Inc. (New York).

PAPER WITH LAID LINES.-Paper with laid lines classified at 3 cents per pound and 25 percent ad valorem under paragraph 1407, Tariff Act of 1930, is claimed dutiable at 3 cents per pound and 15 percent ad valorem under the same paragraph.

Opinion by DALLINGER, J. In accordance with stipulation of counsel and on the authority of United States Envelope Co. v. United States (T.D. 45333) paper with laid lines was held dutiable at 3 cents per pound and 15 percent ad valorem under paragraph 1407 as claimed.

No. 24532.-Protests 405859-G, etc., of G. Klein & Son, Inc. (New York).

ROSARIES. Rosaries classified at 50 percent ad valorem under paragraph 1446, Tariff Act of 1922, and paragraph 1544, Tariff Act of 1930, are claimed dutiable at only 15 percent ad valorem under the same paragraphs.

1

Opinion by DALLINGER, J. In accordance with stipulation of counsel and on the authority of Abstracts 10365 and 19870, and Klein v. United States (T.D. 46129), the rosaries in question were held dutiable at 15 percent as claimed. No. 24533.- Protest 519362-G of Joe Lipschutz (New York).

WATCH CASINGS FOR EXHIBITING WATCH MOVEMENTS. - This protest relates to metal casings known as contours composed of nickel and glass, used for the purpose of exhibiting watch movements, classified at 40 cents each and 45 percent ad valorem under paragraph 367, Tariff Act of 1930.

Opinion by DALLINGER, J. No proof having been offered in support of the claim made, the protest was overruled.