that these articles should be upon the free list. Sufficient authority is given the President to protect American interests should any discrimination be shown against us by foreign nations. (Italics ours.)

We find in the report of the Senate committee on the same bill, reported by Mr. McCumber, the following:

Your committee has adopted the policy of the House bill in recommending the free entry of mechanical wood pulp and standard newsprint paper.

The Government, in its brief, says:

It is a matter of common knowledge that for many years publishers of newspapers in the United States have agitated cheap paper for printing the regular editions of their newspapers. They were furnishing the newspapers to the public at minimum rates and demanded that they be able to secure paper used in printing those editions at minimum prices.

Regardless of whether this court can take judicial knowledge of those facts in the consideration of this case, we think the hearings before the committees of Congress, during the last 20 years, abundantly support the statement.

In consideration of all the facts, we think it is reasonable to conclude that Congress intended to free-list that class of paper upon which newspapers are printed. The report of the House Committee on Ways and Means would indicate that they wished to narrow the meaning of the word "newsprint" by limiting the provision to only such newsprint as was standard. The report states that "the designation of standard newsprint is a new term, but thoroughly understood both in the trade and in the customs office."

The testimony in this case supports the conclusion that "standard newsprint paper" is only such paper as is chiefly used for printing newspapers. The testimony is in conflict as to whether the side runs, cut from paper which is admittedly standard newsprint paper, are regarded as standard newsprint paper, but there is no conflict in the testimony but what the large sheets from which the rolls were cut were in fact standard newsprint paper. On account of its dimensions, the importation was not susceptible of a use for newspaper printing. The context of the paper paragraphs in the Tariff Act of 1922 and other acts, together with the history of the whole situation, indicates that Congress, when using the term "standard newsprint paper," did not contemplate the free admission of paper which could not be used for the purpose of newspaper printing. The report of the House committee shows that the paper which is intended to be free was that form of print paper upon which newspapers are printed. Evidently, the weight, thickness, and composition of the paper were not the only characteristics Congress had in mind when the term "standard newsprint paper" was used.

When the Congress has clearly indicated the purpose and expected resulting effect of a tariff provision, customs officials and the courts, on construing the same, will so apply and so construe it as to bring

about such purposes, unless the language used is such as to render a contrary result unavoidable. In United States v. Stone & Downer Co. et al., 274 U. S. 225, 244, the learned chief justice, in speaking for the court, said:

If the language of the statute is such that such results can not be avoided, of course it must be enforced accordingly. If Congress by its language has made a mistake, and so has failed in its purpose, this court can not supply by its decision the omission of a necessary legislative provision to effect its purpose. With the intent of the act clearly in mind, however, we must see whether it is true that the language used can only bear the construction insisted upon by the importers and upheld by the Court of Customs Appeals, or whether there is a broader and more reasonable construction that can be fairly placed upon the statute which will serve the plain congressional purpose.

It being admitted that newspapers are not printed on and can not be printed on the imported merchandise, it follows that it is not "standard newsprint paper" and was properly classified by the collector.

The judgment of the United States Customs Court is affirmed.

W. W. HEARNE v. UNITED STATES (No. 2952) 1

JUDGMENT OF LOWER COURT AFFIRMED UPON REHEARING.

In this case, the matters in controversy having been decided in W. W. Hearne v United States, 15 Ct. Cust. Appls. 378, T. D. 42565, the judgment of the United States Customs Court is affirmed.

United States Court of Customs Appeals, January 9, 1929

APPEAL from United States Customs Court, decision of February 17, 1927 [Affirmed.]

Comstock & Washburn (J. Stuart Tompkins of counsel) for appellant.

Charles D. Lawrence, Assistant Attorney General (Oscar Igstaedter, special attorney, of counsel), for the United States.

[Oral argument December 4, 1928, by Mr. Tompkins and Mr. Igstaedter]

Before GRAHAM, Presiding Judge, and BLAND and HATFIELD, Associate Judges

BLAND, Judge, delivered the opinion of the court:

On January 23, 1928, this court affirmed the judgment of the United States Customs Court in the above-entitled cause. W. W. Hearne v United States, 15 Ct. Cust. Appls. 378, T. D. 42565. On the 11th day of June, 1928, a rehearing was granted. The cause was reargued December 4, 1928.

After a very careful consideration of all of the issues involved we can see no reason to depart from the reasoning or conclusion reached in our former opinion.

The judgment of the United States Customs Court is therefore affirmed.

1T. D. 43188.

1

UNITED STATES v N. ERLANGER, BLUMGART & Co., INC. (No. 3079) 1 1. COTTON CLOTH PRINTED WITH VAT DYES-ADDITIONAL DUTIES-CONSTRUCTION, Paragraphs 903 and 904, Tariff Act of 1922.

The phrase "when not less than 40 per centum of the cloth is printed, dyed, or colored with vat dyes," as used in paragraph 903, Tariff Act of 1922, must be considered in connection with paragraph 904 which requires that all parts of the cloth shall be included in the ascertainment of its dutiable condition. The history of the legislation indicates that Congress had in mind the protection of the vat-dye cloth-printing industry because of the labor involved, and that this protection should be extended to cloth printed on one side as well as to cloth printed on both sides; that the determination of the printed condition of the cloth should involve only a consideration of its printed surfaceif printed on both sides, both sides should be counted, if printed on one side only, the calculation should be confined to the side printed. Hence, cotton cloth 50 per centum printed on one side, and cotton cloth more than 40 per centum printed on both sides, should bear the additional duty.

2. ADMISSIBILITY OF EVIDENCE-REVERSIBLE ERROR.

Because of the ambiguity involved in paragraph 903, the proof offered that not more than 5 per centum of imported cotton cloth was printed on both sides was admissible for the purpose of enabling the court to arrive at the legislative intent. Its rejection, however, was not reversible error, since its admission would not change the views of the court on the interpretation given to the paragraph,

3. PRINTING AND COLORING LEGISLATIVE DISTINCTION.

The contention that 50 per centum of the importation is "colored," since the printed side "shows through," is without merit. The Congress has distinguished between printing and coloring.

United States Court of Customs Appeals, January 9, 1929

APPEAL from United States Customs Court, T. D. 42548

[Reversed.]

Charles D. Lawrence, Assistant Attorney General (William H. Futrell, special attorney, of counsel), for the United States.

Curie, Lane & Wallace (Thomas M. Lane of counsel) for appellee.

[Oral argument October 2, 1928, by Mr. Lawrence and Mr. Lane]

Before GRAHAM, Presiding Judge, and BLAND and HATFIELD, Associate Judges

BLAND, Judge, delivered the opinion of the court:

The issue in this case involves the proper construction and application to be given to paragraphs 903 and 904 of the Tariff Act of 1922, the pertinent portions of which read as follows:

* * *

con

PAR. 903. * * * Cotton cloth, printed, dyed, colored, taining yarns the average number of which does not exceed number 40, fifty-five one-hundredths of 1 cent per average number per pound; * * *: Provided further, That when not less than 40 per centum of the cloth is printed, dyed, or colored

1T. D. 43189.

with vat dyes, there shall be pai a duty of 4 per centum ad valorem in addition to the above duties. * * *

PAR. 904. * * * In the ascertainment of the condition of the cloth or yarn upon which the duties imposed upon cotton cloth are made to depend, the entire fabric and all parts thereof shall be included. * *

*

The merchandise involved consists of cotton cloth printed with vat dyes on one side with a design covering 50 per centum of the surface of one side. Its assessment for duty under the proper portion of the first part of paragraph 903 is not questioned here, but in addition to the assessment of duty, in accordance with the yarn count under said paragraph 903, an additional 4 per centum ad valorem duty was assessed upon the theory that 40 per centum of the cloth was printed with vat dyes.

The importer protested the levying of the additional 4 per centum duty. The court below sustained the protest, and the Government has appealed to this court.

There are two exhibits in the case, 1 and 2. They are both admitted to be "casement cloths," and are chiefly used for window hangings. Exhibit 2 is marked and described as "simplex" and is printed on one side only, while Exhibit 1 is marked "duplex" and is printed on both sides in such manner that the design on each side exactly coincides and is exactly opposite the design on the other side. While Exhibit 1 is an official sample from the same shipment as Exhibit 2, it is conceded that it was properly assessed with duty. It happens, in the case at bar, that the printed design is of such form and shape that the portion printed blue is in the same size and form as the unprinted portion, which remains white. Exhibit 1 is printed on both sides simultaneously, being passed through a set of rollers containing the plates which are identical and which exactly coincide. Evidently the cloths in both exhibits, before printing, were identical. The plain or unprinted side of Exhibit 2 shows, in faint outline, the figures which are printed on the opposite side of the cloth. The testimony shows that Exhibit 2 and Exhibit 1 are used for the same purpose, but that in the use of Exhibit 2 the plain side is hidden or is covered with a lining.

The decision of this case involves the sole question: What did Congress mean by the use of the phrase in paragraph 903 "when not less than 40 per centum of the cloth is printed, dyed, or colored with vat dyes," when considered with the quoted part of paragraph 904?

The Government contends that it means 40 per centum of the surface of one side, when applied to Exhibit 2, while the importer contends that the quoted provision of paragraph 904 requires that the printed side and the so-called blank side shall both be taken into consideration. If the Government's contention is correct, it is admitted that 50 per centum of Exhibit 2 is printed, and if the importer is right, only 25 per centum of same is printed.

It has been suggested that the quoted provision of paragraph 904, requiring that all parts of the cloth shall be included in the ascertainment of its dutiable condition, has no application to the quoted proviso of paragraph 903, in so far as the proviso itself provides the rule, in definite terms, for the ascertainment of the condition of the cloth. We are not prepared to hold that the definite and specific mandate contained in paragraph 904 does not apply to the ascertainment of the condition of the cloth as involved in the determination of the issue before us, and we must, therefore, in ascertaining the printed condition of the importation at bar, and in trying to arrive at the intention of Congress, give full force and effect to paragraph 904.

At the trial in the court below, the Government offered to prove, over the objection of the importer, that not more than 5 per centum of the printed cloth imported was printed on both sides, like Exhibit 1, marked "duplex." The court declined to admit the testimony. It would seem to us that the language used by Congress in paragraph 903 is sufficiently ambiguous to call for explanatory proof, and a very wide latitude should have been permitted for the purpose of enabling the court to arrive at the intent of Congress.

The Government has assigned as error the action of the court in rejecting the proffered proof and, before this court, argues that if only 5 per centum of imported cotton cloth was printed on both sides, the classification directed by the court below in the case at bar would result in 95 per centum of imported printed cotton cloth escaping the 4 per centum additional duty, and that Congress could not have contemplated such a result. While the form of the questions may not be technically correct, we think that proof of this character was admissible and, if properly made, should have been given weight and consideration by the court below in trying to arrive at the intention of the legislative body. Under the circumstances, however, we do not regard the action of the court below as reversible error, since the admission of proof of this character, if a new trial was granted, would not change our views on the proper interpretation to be given to the paragraph, as is found hereinafter.

The Government urges that if it is wrong in its contention that Exhibit 2 is 40 per centum "printed" with vat dyes, it is, nevertheless, 40 per centum "colored" with vat dyes. It has cited a number of authorities and devoted considerable time in argument and space in brief in an attempt to support its contentions in this regard. The gist of its argument is to the effect that if both sides or both surfaces are counted, one side being printed and colored, and the other side, since the printing "shows through," being colored, the cloth is, therefore, 50 per centum colored. We see no merit in this contention. Both exhibits are, admittedly, "printed." Congress distinguished between printing and coloring, and we find it unnecessary to discuss