From this stipulation it would appear that a single question arises, to wit, Had the collector any power or authority to require the importer to pay to him the moneys to be paid to inspectors for the extraordinary services required in the lading at night or on Sunday or a holiday? The authority for the collector's action in this respect is to be found in the act of February 13, 1911. (See T. D. 31562.) This act gives the collector authority to issue a special license to lade or unlade the cargo of certain vessels under certain circumstances at night or on Sundays or on holidays. Section 5 of the act is as follows: SEC. 5. That the Secretary of the Treasury shall fix a reasonable rate of extra compensation for night services of inspectors, storekeepers, weighers, and other customs officers and employees in connection with the lading or unlading of cargo at night, or the lading at night of cargo or merchandise for transportation in bond, or for exportation in bond, or for the exportation with benefit of drawback, but such rate of compensation shall not exceed an amount equal to double the rate of compensation allowed to each such officer or employee for like services rendered by day, the said extra compensation to be paid by the master, owner, agent, or consignee of such vessel or other conveyance, whenever such special license or permit for immediate lading or unlading or for lading or unlading at night or on Sundays or holidays shall be granted, to the collector of customs, who shall pay the same to the several customs officers and employees entitled thereto according to the rates fixed therefor by the Secretary of the Treasury. Customs officers acting as boarding officers, and any customs officer who may be designated for that purpose by the collector of customs, are hereby authorized to administer the oath or affirmation herein provided for, and such boarding officers shall be allowed extra compensation for services in boarding vessels at night or on Sundays or holidays at the rate prescribed by the Secretary of the Treasury as herein provided, the said extra compensation to be paid by the master, owner, agent, or consignee of such vessels.

All of the questions raised by the importer, except that the collection of the charges in question is in violation of Article I, section 9, of the Constitution of the United States, have been heretofore passed upon by this board; many of them were considered in the decision of the motion to dismiss, supra; also in the Davies-Turner case, G. A. 7163 (T. D. 31271).

The particular provision of that section which it is claimed is violated by requiring the protestant to pay the charges in question is "no tax or duty shall be laid on articles exported from any State."

The case of Fairbank v. United States (181 U. S., 283), as well as the other cases cited by the importer in his brief, and all of the cases considering this provision with which we are familiar, have to do with instances where a tax or duty was either directly or indirectly laid upon the exportation in question, and the doctrine in these cases is that that can not be done indirectly which can not be done directly; that the freedom of exportation which is guaranteed by this provision can not be interfered with by any form of taxation, and in all of the cases cited some form of levying a tax or duty had been adopted, the result of which had added to the revenue of the United States. In the case at bar no duty or tax of any kind is levied, and the moneys

which the collector required the protestant to pay did not go into the Treasury of the United States nor add to its revenues. The law under which the collector exacted and collected this charge expressly directs that the amount shall be distributed to the employees who are engaged in the lading of the vessel. The services rendered by the customs officers for which the charge in question was made are expressly provided for in the act of 1911, supra, and form a condition upon which the license provided for in the first section of that act is granted. This charge is not in any sense a tax or duty. It is therefore not inhibited by section 9 of Article I of the Constitution of the United States, but is expressly provided for by law.

In the stipulation it is agreed that the vessel in question is "not a common carrier of bonded merchandise," but of this fact the protestant can not take advantage, as the extraordinary services were rendered to it at its request, from which services it derived the benefit, and is therefore estopped from claiming it was not such a vessel as was entitled under the law to the privileges it received. The protest is overruled.

(T. D. 33980-G. A. 7514.)
Iron sand.

The only genuine, bona fide use for iron sand being as an abrasive, it can not be taken out of the specific provision therefor in paragraph 133, tariff act of 1909, by proof that it is sometimes used for other purposes. The words "used only as abrasives" imply a commercial and not an exceptional or unusual use.-G. A. 7249 (T. D. 31773) modified.

United States General Appraisers, New York, December 10, 1913.

In the matter of protests 559359, etc., of R. C. Bowers Granite Co. against the assessment of duty by the collector of customs at the port of San Francisco.

Before Board 2 (FISCHER, HOWELL, and COOPER, General Appraisers). FISCHER, General Appraiser: The merchandise which is the subject of these protests consists of so-called iron sand. Duty was assessed thereon at the rate of 1 cent per pound under the provisions of paragraph 133 of the act of 1909, which reads as follows:

Grit, shot, and sand made of iron or steel, that can be used only as abrasives, one cent per pound.

The importers claim, inter alia, that the merchandise is properly dutiable at the rate of 45 per cent ad valorem under the provisions of paragraph 199 of said act as manufactures of metal not specially provided for, or under paragraph 432 as "crude artificial abrasives" at 10 per cent ad valorem.

The precise question here presented was passed upon by this board in G. A. 7249 (T. D. 31773). The board in that case sustained

the claim of the importers, holding that the merchandise was not dutiable as iron sand but as a manufacture of metal.

This case is presented on a fuller and more complete record, and from that record we are fully satisfied that our ruling herein before cited should not be followed.

We are entirely satisfied from the evidence now before us that iron sand has only one genuine bona fide use, and that use is as an abrasive. Considering the entire case as it is presented to us now, it is only too clear that iron sand is commercially used only as an abrasive, and that all other uses are unusual and exceptional. It is well settled that such exceptional or unusual uses will not operate to take an article out of a provision which makes it dutiable if not fit or commercially suitable for other purposes.

In Jessup v. Cooper (46 Fed., 186), the court said:

By fitness for some other manufacture, however, is meant commercial fitness. If the bagging could not profitably be applied to some other manufacture, then it was not commercially fit for such purpose.

To the same effect is White v. United States (69 Fed., 93).

In Oil Seeds Pressing Co. v. United States (114 Fed., 793; affirmed in 120 Fed., 1022), Townsend, Judge, said:

The word "fit" seems to be equivalent to "suitable"-the actual, practical, and commercial suitableness of the article for the purpose designated. The article in question is not manufactured, imported, or adapted for food consumption, and its perverted use for frying or for salads by a class of foreigners presumably ignorant of its deleterious qualities and injurious effects does not show that it is fit for use as food. In Kahlen v. United States (2 Ct. Cust. Appls., 206; T. D. 31947), Smith, Judge, speaking for the court, said:

After a careful analysis of all the testimony in the case and an examination of the samples in evidence, we think the importer has failed to prove satisfactorily that the imported merchandise is either printing paper or that it is suitable for the printing of books. While the witnesses produced by him testified broadly that the paper in question was printing paper suitable for the printing of books, their statement in that behalf is nothing more than a conclusion drawn by them from the fact that it could be printed upon and that in some exceptional cases it had been actually utilized for the printing of books. Such evidence can hardly be accepted as satisfactory proof of the nature of the goods or their suitability for the purpose alleged. * * From the fact that a thing may be used or has been used for a particular end it does not necessarily follow that it is commercially suitable therefor, and evidence of a casual, incidental, exceptional, or possible use of a thing cannot be accepted as proof of its suitability for such use.

In Stone v. United States (1 Ct. Cust. Appls., 513; T. D. 31533), Montgomery, Presiding Judge, speaking for the court, said:

Unquestionably the term "fit only for such use" means fit in the commercial sense. A provision which fixes a rate of duty according to its suitability for use can not be defeated by forced or perverted use. The only use which will determine its dutiable character is a legitimate and

proper use, such a use as will fall within the needs or requirements of regular purposes. So far as the evidence before us goes, the only real, commercial use for all of the various qualities and sizes of iron sand here in question is for abrasive purposes. The protests are accordingly overruled and the decision of the collector affirmed.

(T. D. 33981-G. A. 7515.)

Sufficiency of protest-Protest fee— Wire cloth.

1. Paragraph N of section 3, tariff act of 1913, requiring a deposit of a fee of $1 as a condition precedent to the validity of a protest does not limit a protest as to the number of entries it may contain, nor does it require a deposit of a fee of $1 for each entry enumerated therein. The fee imposed attaches to the protest and not to each cause of action involved therein.

2. Wire cloth, dutiable at an ad valorem rate of 45 per cent under paragraph 199, tariff act of 1909, is not subject to the additional duty of 1 cent per pound under paragraph 135 of said act. Citing and following United States v. McCoy (4 Ct. Cust. Appls., 396; T. D. 33838).

United States General Appraisers, New York, December 12, 1913.

In the matter of protests 725873, etc., of Joseph F. McCoy Co. against the assessment of duty by the collector of customs at the port of New York.

Before Board 2 (FISCHER, HOWELL, and COOPER, General Appraisers; COOPER, G. A., concurring; HoWELL, G. A., dissenting.)

FISCHER, General Appraiser: The Joseph F. McCoy Co., a corporation, imported at the port of New York under separate entries two shipments of wire cloth, upon each of which duty was assessed at 45 per cent ad valorem plus 1 cent per pound, under paragraphs 199 and 135, respectively, tariff act of 1909. The importing company thereupon filed its protest (725873) covering the two entries in question, depositing therewith a fee of $1 for each of said entries, wherein it claimed said merchandise to be properly dutiable at only 45 per cent ad valorem under said paragraph 199.

The collector, in his communication transmitting said protest to the board for decision, raised the question as to the sufficiency thereof in the following language:

As the protest covers two entries, it is held to be insufficient in that the reasons for objections in respect to each entry are not distinctly and specifically set forth.

Said protest, in part, reads as follows:

Hon. COLLECTOR OF CUSTOMS,

Port of New York.

OCT. 31, 1913.

SIR: Notice of dissatisfaction is hereby given with, and protest is hereby made against, your ascertainment and liquidation of duties, and your decision assessing duty under the tariff act of August 5th, 1909, at 45% ad val. and one cent per lb. on brass or bronze wire articles, phosphore bronze wire cloth, etc.

Said merchandise is not dutiable as assessed at 45% ad val. under par. 199 plus one cent per pound under par. 135. It is elsewhere more specifically provided for. It is properly dutiable under par. 135 as articles manufactured wholly or in chief value of wire not specially provided for at 35% ad val., or at 35% ad val. plus one cent per pound under the proviso of par. 135, but not less than 40% ad val. by virtue of the second proviso of par. 135.

*

It is further and alternatively claimed that the said merchandise is dutiable at only 45% ad val. under par. 199. In any event, there is no authority or warrant in law for the assessment of one cent per pound duty in addition to the 45% ad valorem duty. * * The excess is paid under compulsion, to obtain and retain possession of said merchandise or articles, and you and the Government are held liable for the same, and a demand for the repayment thereof and a readjustment or liquidation of the entries in accordance with the above claims is hereby made. The marks and numbers below given are given under duress and without prejudice.

Indorsed upon this protest is the following return made by the collector:

NOVEMBER 5, 1913.

Respectfully referred to the Board of U. S. General Appraisers for decision. This protest lodged within the statutory time covers two entries of wire cloth and other wire articles imported by Jos. F. McCoy & Co.

In two separate liquidations completed on different dates, duty was assessed at 45 % ad valorem and lc per pound under paragraph 199 and 135 of the act of August 5, 1909, following the instructions contained in T. D. 32600 and 33329.

Within thirty days from the time the protest was lodged, the sum of two dollar ($2.00) was deposited in this office to meet the requirement in paragraph N of section 3 of the act of October 3, 1913, that a fee of one dollar ($1.00) be paid for each liquidation protested against, before the protest could be forwarded to the Board of General Appraisers.

As the protest covers two entries, it is held to be insufficient in that the reasons for objections in respect to each entry are not distinctly and specifically set forth. Note department's letter dated October 29, 1913, and the appraiser's special report, copies of which are enclosed herewith.

Respectfully,

JOHN PURROY MITCHEL, Collector.

Thereafter, and within the statutory time, the importing company filed its second protest (725874)-depositing therewith a fee of $1 and enumerating therein the two entries covered by its former protest-wherein it claimed that the collector acted illegally and without warrant of law in exacting a deposit of $1 for each of the two entries covered by its former protest.