that this limitation should attach to the merchandise which was the subject of section 2 it would naturally be expected, in view of its previous care in selecting language to express its will, that Congress would have employed in said section some such term as "being manufactured from wood grown in Canada." No language of that express import, however, is to be found therein. The word used is "products," and these products are in fact manufactured articles. If, as was held in Balfour v. Sullivan, supra, grain bags made here of foreign material were the manufacture of the United States, clearly wood pulp made in Canada from foreign material must be the manufacture of Canada.

Nor, considered without regard to other portions of the act, do we find in section 2 any satisfactory indication that the merchandise therein given free entry is required to be a product of the soil of Canada. The merchandise itself is certain wood pulp, paper, and paper board. To such thereof as is within the condition precedent in all respects free entry is given.

This condition precedent is attached to materials only, and not to their place of origin, and the condition is such that such materials shall be possessed of the free unrestricted right of export. Acid is used in the manufacture of chemical wood pulp; sizing enters into the manufacture of paper, and yet it can hardly be supposed that Congress intended that these articles when employed in producing the merchandise named must also be made from raw materials whose origin was Canada. No language of the section expressly declares that the raw material must be of Canadian origin, and unless it be so required, the pulp wood from which the wood pulp in this case was made possesses all the attributes required by the condition precedent. Neither do we find in the purposes to be accomplished by the section any sufficient indication of an intention to limit the meaning of the word "products," as claimed by the Government. Manifestly one purpose was to promote the free export of pulp wood to this country. It was also desired to encourage and promote the export to this country of the named manufactured products of pulp wood. The consumers of wood pulp, paper, and paper board were equally benefited by its free entry here whether the wood from which it was produced came from Canada or some other country. Congress provided as the declared condition of such free entry that the wood from which it was made must be entitled to free and unrestricted export without declaring that the country of manufacture must also be the country of origin of the raw material, and we see no reason to read into the statute anything beyond what we consider its plain meaning in this regard.

In the argument it is contended by the Government that in the case of Cliff Paper Co. v. United States, supra, we have impliedly

decided the issue here against the importers' contention. It is sufficient to say that the question here raised was not before us in that case, was not considered, and was not decided.

The judgment of the Board of General Appraisers is affirmed.

DISSENTING OPINION.

DE VRIES, Judge: For the reasons set forth in the dissenting opinions in American Express Co. v. United States (4 Ct. Cust. Appls., 146; T. D. 33434) and in Cliff Paper Co. v. United States (4 Ct. Cust. Appls., 186; T. D. 33435) I dissent.

UNITED STATES 2. SHELDON & Co. et al. (No. 1372).1

PROOF OF COMMERCIAL DESIGNATION.

The merchandise consists of the pulp and juice of the currant, preserved, presumably, in sirup or molasses. This is not a jelly in fact, and while the board found it to be commercially known as jelly, there was no proof of commercial designation. The collector's assessments, in the absence from the record of evidence to controvert it, must be sustained.-United States v. Oberle (1 Ct. Cust. Appls., 527; T. D. 31545).

United States Court of Customs Appeals, June 1, 1914.

APPEAL from Board of United States General Appraisers, Abstract 34779 (T. D. 34186). [Reversed.]

William L. Wemple, Assistant Attorney General (Charles E. McNabb, assistant attorney, of counsel; Samuel Isenschmid, special attorney, on the brief), for the United States.

Submitted on record by appellee.

Before MONTGOMERY, SMITH, BARBER, DE VRIES, and MARTIN, Judges. BARBER, Judge, delivered the opinion of the court:

The merchandise involved in this appeal was invoiced as bar-le-duc red currants and was assessed at 1 cent per pound and 35 per cent ad valorem under paragraph 274 of the tariff act of 1909 as preserved fruit. This assessment was protested by the importers, who described the merchandise in the protests in the same language employed for that purpose in the invoice and claimed that it was dutiable as jellies at 35 per cent ad valorem under the same paragraph.

At the hearing before the board the importers called no witnesses. One, an examiner of merchandise at the port of Chicago, testified on behalf of the Government. On direct examination he said that prior to June, 1908, the merchandise, although not a jelly, was labeled "bar-le-duc jelly" and allowed to be sold that way; that since June, 1908, the United States Department of Agriculture had refused to allow the merchandise to go on the market labeled as a jelly and that since 1908 it had been labeled "bar-le-duc." Upon

1 Reported in T. D. 34555 (26 Treas. Dec., 1015).

cross-examination he testified that the merchandise was identical in character with that covered by Abstract 31794 (T. D. 33291). Upon this record the Board of General Appraisers sustained the protests. In its opinion the board states among other things that

This commodity has been before the board and the courts heretofore, and has been held, by reason of its commercial designation, to be jelly, the fact at the same time being recognized that it is not a true jelly. Citing T. D. 23848 and Abstract 31794 (T. D. 33291).

The board further said:

We think that under the circumstances of this case we are warranted in presuming, it not clearly appearing to the contrary, that commercial designation having been previously shown and acted upon by the courts, it would be presumed to continue. Again citing Abstract 31974 (T. D. 33291).

The Government appeals, and argues the case here upon its brief. The importer submits upon the record.

The importers here were not parties to the cases cited by the board. The testimony we have heretofore mentioned is the substance of all that is relevant in this case.

The merchandise at bar consists, as set forth in the invoice and protests and as shown by the official exhibits, of the pulp and juice of the currant preserved presumably in sirup or molasses.

This is not jelly in fact. Bogel v. United States (1 Ct. Cust. Appls., 144; T. D. 21188); Meyer v. United States (3 Ct. Cust. Appls., 247; T. D. 32565).

The collector has assessed the merchandise for duty in accordance with its condition in fact and his action is presumed to be correct until otherwise shown.

The board has sustained the protests upon the view that although not jelly in fact the merchandise under consideration was nevertheless commercially known as jelly.

It is well settled that commercial designation must be established by proof and that the burden is upon him who asserts it. It is not a matter of judicial cognizance. United States v. Goldberg (3 Ct. Cust. Appls., 282; T. D. 32573) and cases there cited. ·

We have, therefore, for review a judgment declaring that an article not jelly in fact is nevertheless commercially known as jelly, with no proof of such commercial designation except such as was within the cognizance of the Board of General Appraisers in another case or cases, the record of which is not before us for consideration.

This brings the case within the ruling of United States v. Oberle (1 Ct. Cust. Appls., 527; T. D. 31545) in which we held that

It seems unnecessary to say where a decision is rested upon a record or records in which the crucial point in the issue is one of commercial designation or any other probative fact, and these records are not a part of the record before this court, there is not before the court sufficient testimony to sustain the finding of the board.

The judgment of the Board of General Appraisers is reversed.

ATLANTIC TRANSPORT Co. v. UNITED STATES (No. 1337).1

1. JURISDICTION.

The court may at any stage raise the question of jurisdiction of the subject matter, and the determination of the trial court that it has jurisdiction adds nothing to the force of its judgment.

2. BOARD'S JURISDICTION UNDER SUBSECTION 14 OF SECTION 28, ACT OF 1909.

The appellant was required to pay for the services of inspectors who supervised the loading of a vessel at night and on Sundays and holidays. Subsection 14 of section 28, tariff act of 1909, was not intended to confer jurisdiction upon the board in any cases other than those related to duties or charges on imported goods, and the charges here could not be reviewed.—Czarnecki's case, G. A. 3785 (T. D. 17851). 3. DRAWBACKS AND THE SECRETARY OF THE TREASURY.

The jurisdiction to allow or refuse drawbacks is vested in the Secretary of the Treasury, and it would seem incongruous to vest in another tribunal the decision of questions relating to the charges connected with the exportation of drawback goods, which in effect result in a reduction of the allowance of drawback.

United States Court of Customs Appeals, October 29, 1914. APPEAL from Board of United States General Appraisers, G. A. 7513 (T. D. 33979) and Abstract 34480 (T. D. 34069).

[Affirmed.]

Comstock & Washburn (J. Stuart Tompkins on the brief) for appellant.

Bert Hanson, Assistant Attorney General (Charles E. McNabb, assistant attorney, of counsel; William A. Robertson, special attorney, on the brief), for the United States.

Before MONTGOMERY, SMITH, Barber, DE VRIES, and MARTIN, Judges. MONTGOMERY, Presiding Judge, delivered the opinion of the court: This protest is against the action of the collector in requiring protestants to pay for the services of inspectors while supervising the loading of a vessel at night and on Sundays and holidays. The vessel was being laden with goods upon which a drawback was claimed. The protest was overruled, and the protestants appeal. Before the hearing, counsel for the Government entered a motion to dismiss the proceedings for want of jurisdiction. This motion was overruled, and the case proceeded to final decision as above stated.

In this court Government's counsel reasserts the claim that the board is not given jurisdiction of this class of cases. It is suggested on behalf of the protestants that as there was no appeal from the order overruling the motion to dismiss, the question is now foreclosed. It would seem, however, that the court may at any stage raise the question of jurisdiction of the subject matter, and should do so, and that the determination of the trial court that it has jurisdiction adds nothing to the force of its judgment. See Brown on Jurisdiction (second edition, sec. 26, at pp. 131 and 132), where it is said:

If the court lacks jurisdiction over the subject matter of the controversy, all the authorities agree that the judgment is void, however honestly it may believe it is

1 Reported in T. D. 34872 (27 Treas. Dec., 376).

acting rightfully, whatever may be the recitals of its record, however formal may be its acts, or however judicious its conclusions. If it lacked power to perform the judicial act it undertook, its findings that it had jurisdiction adds nothing to the verity of its pretended judgment. Its power was usurped, and its finding that it possessed the power in no way confers it.

See also Railroad Co. v. Swan (111 U. S., 379, at pp. 382 and 383). Furthermore, the decision of the motion was interlocutory and no appeal could have been taken therefrom. Brady v. Railroad Co. (73 Mich., 457).

The question of jurisdiction therefore stands for decision, and the question, stated briefly, is whether subsection 14 of section 28 of the act of 1909, corresponding to section 14 of the customs administrative act of 1890, was intended to confer jurisdiction upon the board in any cases other than those relating to duties or charges on imported goods.

In the decision of this question, consideration should be given to the fact that importation is complete before any action to secure a drawback becomes necessary, and that the jurisdiction to allow or refuse drawbacks is vested in the Secretary of the Treasury; hence there would be a seeming incongruity in vesting in another tribunal the decision of questions relating to the charges connected with the exportation of drawback goods, which in effect result in a reduction of the allowance of drawback. If the statute confers such jurisdiction, the seeming incongruity would not of course be an obstacle to its enforcement, but the circumstance throws a sidelight on the question.

Another significant fact is that the appeals to this court authorized by subsection 29 of section 28 of the act of 1909 were obviously intended to cover the same class of cases as were brought within the jurisdiction of the board by subsection 14. These two subsections should be construed together and are intended to outline the cases in which the judicial action by the board and of this court was authorized. If this be not so-that is, if it be held that it was the intention of Congress to vest the board with jurisdiction in a class of cases not made appealable to this court this conclusion would be fata to the appellants in this case for want of jurisdiction of this court to review the board's decision. We think, however, that no purpose on the part of Congress to vest a jurisdiction in the board over cases not reviewable by this court (except in appraisements) can be found if the terms of the act as a whole be considered.

The pertinent provisions are as follows:

SEC. 14. That the decision of the collector as to the rate and amount of duties chargeable upon imported merchandise, including all dutiable costs and charges, and as to all fees and exactions of whatever character (except duties on tonnage), shall be final and conclusive against all persons interested therein, unless the owner, importer, consignee, or agent of such merchandise, or the person paying such fees, charges, and exactions other than duties, shall, within fifteen days after but not before