For decision below see G. A. 6647 (T. D. 28346), affirming the assessment of duty by the collector of customs at the port of New York on material imported by Kuttroff, Pickhardt & Co.

Currie, Smith & Maxwell (W. Wickham Smith of counsel), for the importers.
J. Osgood Nichols, assistant United States attorney, for the United States.

HAZEL, District Judge: The Board of Appraisers in this case affirmed the decision of the collector, who assessed the merchandise herein as a chemical salt dutiable at 25 per cent ad valorem under paragraph 3 of the act of 1897. The chief question involved herein is whether the merchandise, described as chrome alum, in its imported state, was crude within the meaning of law. The witnesses agree that when the importation was received in this country it was in the crudest form known to commerce. It is sold to tanners, dyers, and manufacturers of mordants for dyers. The Board of General Appraisers gave careful consideration to the question submitted and reached the conclusion that to crystallize the article—that is, to make it commercially salable--it required refining or purifying by chemical process and treatment, and on account thereof it was held not to be in a crude state. The importers, however, contend that under the doctrine of United States v. Merck (66 Fed. Rep., 251), United States v. Godwin (91 Fed. Rep., 753), and Roessler & Hasslacher Chemical Company v. United States (94 Fed. Rep., 822), the merchandise was in fact in a crude condition entitling it to free entry under paragraph 482 of the tariff act of 1897, which reads: Articles in a crude state used in dyeing or tanning not specially provided for in this Act.

The contention is without merit. In the Merck case the court had before it a drug known as elaterium, which the Government contended was a medicinal preparation; but the court was of opinion that it was a drug in its crudest form. The evidence showed that to put the juice of the fruit from which the drug was produced in the condition of importation simply required its subjection to a process of evaporation and drying, which, however, did not advance the article from its crude state. In the Godwin case, Judge Wheeler held that to dry the powder of the pawpaw melon in the sun and sift the same to remove deleterious substances was not a process of refining or of manufacture, and the article retained its crude condition. In the Roessler case the controversy related to zinc dust; and in the judgment of the court partially oxidized atoms of zinc, which is obtained as a by-product in the refining of zinc, was an article in a crude state.

These cases are not precedents for such a determination in the case at bar, in view of the fact, which is clearly established by the evidence, that chrome alum, the by-product obtained from oxidizing anthracene, after reduction, contains impurities which necessitate careful and extensive refining to render it commercially salable, and hence can hardly be said not to have been materially advanced in manufacture. As stated in the opinion of the Board

The evidence conclusively shows that the article [when imported] is refined, is prepared by artificial process, and is in a complete form, needing no other preparation for its use.

Moreover, it is held that when an article has been assessed at a rate of duty which is acquiesced in for a long period of time, such classification is entitled to consideration. The undisputed evidence shows that the merchandise of the character under consideration, as a rule, has without protest been returned for duty as a chemical salt. This rule is not inaptly invoked here. Hills Brothers Company v. United States (143 Fed. Rep., 695; T. D. 26940, affirmed, C. C. A., Dec. 4, 1906, 151 Fed. Rep., 476; T. D.27750).

The decision of the Board of General Appraisers is affirmed.

NOTE.-An appeal in this case will be taken to the circuit court of appeals, second circuit.

(T. D. 29004.)

Feather boas.

LEGG v. UNITED STATES.

U. S. Circuit Court of Appeals, Second Circuit. May 5, 1908. No. 224 (suit 4648). FEATHER BOAS-DRESSED FEATHERS-UNENUMERATED ARTICLES.

Under section 7, tariff act of 1897, prescribing that on articles not enumerated, manufactured of two or more materials, the duty shall be assessed at the highest rate at which the same would be chargeable if composed wholly of the component material thereof of chief value," Held that feather boas, which are unenumerated articles made by stringing dressed feathers upon a cotton cord, are by virtue of this provision subject to the duty applicable to "feathers, dressed,

*

act.

*

*

*

* or otherwise advanced or manufactured," under paragraph 425 of said

APPEAL from the circuit court of the United States for the southern district of New York.

[Decision in favor of the Government.]

For decision below see 154 Federal Reporter, 858 (T. D. 28260), in which the circuit court affirmed a decision of the Board of United States General Appraisers, G. A. 6467 (T. D. 27673), which had affirmed the assessment of duty by the collector of customs at the port of New York on imports of George Legg.

Kammerlohr & Duffy (John G. Duffy of counsel), for the importer.

J. Osgood Nichols, assistant United States attorney, for the United States.

Before LACOMBE, COXE, and NOYES, Circuit Judges.

On appeal by the importer from a decision of the circuit court for the southern district of New York, affirming a decision of the Board of General Appraisers which sustained the action of the collector in assessing a duty of 50 per cent ad valorem upon feather boas, under the provisions of paragraph 425 and section 7 of the tariff act of 1897 (30 Stat., 191, 205).

COXE, Circuit Judge: The feather boas in question are nonenumerated articles, and are correctly described by the Board as follows:

The boas in question are made up and ready for use as articles of wearing apparel, and therefore have passed beyond the stage of feathers "dressed, colored or otherwise advanced or manufactured in any manner." The evidence is that they are made by stringing feathers upon a cord, and that the value of the cord used is insignificant as compared with the value of the feathers.

The collector classified the boas under the provisions of paragraph 425 and section 7 of the act. Paragraph 425 provides, so far as applicable to the present controversy. as follows:

Feathers,

any manner,

*

*

dressed, colored, or otherwise advanced or manufactured in * fifty per centum ad valorem.

The applicable provisions of section 7 are:

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 it levied on the enumerated article which it most resembles in any of the particulars before mentioned; and on articles not enumerated, manufactured of two or more materials, the duty shall be assessed at the highest rate at which the same would be chargeable if composed wholly of the component material thereof of chief value.

* * *

The importer insists that the boas are dutiable under section 6 of the same act, which provides for a duty of 20 per cent ad valorem on all nonenumerated manufactured articles.

The question for us is not whether the collector was wrong, but whether the importer was right, for upon him lies the burden of establishing the proposition that the boas

in question are neither enumerated nor provided for in the act except in the "catch all" clause. If they be provided for, either directly or by similitude, the importer must fail. Arthur v. Fox (108 U. S., 128); Hahn v. United States (100 Fed. Rep., 635) There can be no doubt that the boas are nonenumerated, that they are manufactured of feathers and cord, feathers being chief value, and that the feathers have been dressed or manufactured and advanced from their crude state.

The Board and the circuit court have united in holding that the provision of the similitude section, quoted above, is applicable for the reasons that the component material of chief value, and in fact of overwhelming value, is the feathers, the cord being used simply to hold the feathers together. It would seem from the testimony of the importer that though these boas have been coming to this country for ten or twelve years the classification has not before been contested. The counsel for the importer, in an able and ingenious argument, has pointed out many alleged inconsistencies which he thinks will follow if the construction relied on by the Government is pushed to its logical conclusion. It seems to us, however, that so far as the facts now before us are concerned, the Board has properly applied the language of section 7.

The appellant has in fact imported dressed feathers strung on a cord. It is true that in tariff nomenclature they are converted by this process into articles of wearing apparel; but their value is substantially the same, and if the identical feathers were unstrung and imported in that condition they would concededly pay a duty of 50 per cent ad valorem. If the importers' interpretation of the law be correct, the addition of the cord and of the labor necessary in stringing the feathers thereon enables them to escape with a duty of but 20 per cent. In other words, if the appellant should import two boxes, one containing a quantity of dressed feathers and the other the same quantity strung on a cord, the former would pay 50 and the latter 20 per cent. We think that the Board and the circuit court were correct in holding that the merchandise in question should be assessed at 50 per cent, that being the rate of duty upon the component material of chief value.

The decision of the circuit court is affirmed.

(T. D. 29005.)

Ornaments.

HILBERT V. UNITED STATES.

U. S. Circuit Court, Southern District of New York. May 7, 1908. Suit 4142. ORNAMENTS IN THE PIECE-TRIMMINGS."

Ornaments or decorations for garments, consisting of loops, medallions, etc., which are manufactured separately, but stitched together for convenience in handling and to avoid expense in carding, and are imported in 6-yard lengths, and which are intended for separate decorative effect, as distinguished from a continuous extension of ornamentation on a garment, are not "trimmings" within the meaning of paragraph 390, tariff act of 1897.

ON application for review of a decision by the Board of United States General Appraisers.

[Decision adverse to the Government.]

For decision below see G. A. 6180 (T. D. 26808), in which the Board affirmed the assessment of duty by the collector of customs at the port of New York on importations by A. Hilbert.

Comstock & Washburn (Albert H. Washburn of counsel), for the importers. J. Osgood Nichols, assistant United States attorney, for the United States. HAZEL, District Judge: The articles in controversy consist of ornaments, loops, medallions, etc. When imported they are sewn together with silk thread for the purpose of saving the expense of separately mounting or carding them. The question

now arises whether such articles are dutiable as trimmings at 60 per cent ad valorem under paragraph 390 of the act of 1897, or, as claimed by the importer, as manufactures of silk at 50 per cent ad valorem under paragraph 391.

The articles are ornaments or decorations for garments, and not trimmings, as that term is understood in commercial parlance. The figures, scrolls, or designs are manufactured separately, are not regular in size, and doubtless were stitched together for convenience in handling and to avoid expense of separate carding. The individual pieces were sewn together after their manufacture, and after their importation such pieces were cut apart and sewn upon cards and sold to the trade by the dozen as ornaments. While such articles might be used as trimmings, they are usually used separately for the purpose of decorating portions of a dress or garment and to impart a distinctive effect. The importer testified that at first he purchased articles of this description abroad at a certain price per dozen, and later he purchased them by the yard. The stipulation in evidence shows the goods were imported in pieces 6 yards in length and are invoiced and bought at a price per dozen yards.

The Government contends that as the goods are bought by measure they are dutiable as trimmings and not as manufactures of silk. It is pointed out that in the case of Garrison, Wright & Co. v. United States (121 Fed. Rep., 149; T. D. 25072), it was held by Judge Wheeler that where articles analogous to those in question are bought and sold by the piece they are not dutiable as trimmings, which are usually bought and sold by linear measure. The principle of the case indicates, I think, that when the imported article, design, or ornament is intended for separate decorative effect, as distinguished from a continuous extension of ornamentation on a garment, such as trimmings, the former retains its specific designation of ornaments for tariff purposes. In the Garrison case the court speaking of the known distinction between trimmings and ornaments, says:

The dropping of the word "ornaments" from the act of 1897 (U. S. Comp. St., 1901, p. 1626) does not indicate that what would be ornaments are to be trimmings rather than manufactures or anything else, for which apt words are retained, or otherwise seem to show that the well-established distinction between trimmings and other articles was intended to be removed.

The exhibits in this case are separate and distinct articles, are not uniform in appearance or size, and are entirely independent pieces appropriate for individual use and effect. The fact that such articles are bought in 6-yard lengths to lessen the expense of carding, and not at a fixed price for each separate ornament, is not thought to require their classification as trimmings. I think the articles have been incorrectly assessed and that they are dutiable at 50 per cent ad valorem under paragraph 391.

The protest of the importer is sustained and the decision of the Board of General Appraisers reversed.

(T. D. 29006.)

Zinc ores.

UNITED STATES v. BREWSTER.

U. S. Circuit Court, Southern District of Texas, Laredo Division. April 21, 1908. No. 27 (suit 1961).

1. ZINC ORES-CALAMINE-CRUDE MINERAL-METALLIC MINERAL SUBSTANCE. Zinc ores known as carbonate of zinc, silicate of zinc, and sulphide of zinc, in which zinc does not exist as a metal, are not dutiable as "metallic mineral substances in a crude state" under paragraph 183, tariff act of 1897, but are subject to classification under paragraphs 514 and 614, relating, respectively, to “calamine" and to "minerals, crude."

2. "CRUDE" MINERALS-"PROCESS OF MANUFACTURE"-ELIMINATION OF FOREIGN

MATTER.

The circumstance that large pieces of ore have been broken into smaller ones and the rock and dirt removed for economy and convenience in transportation is not sufficient to exclude such ore from classification under paragraph 614, tariff act of 1897, relating to "minerals, crude, or not advanced in value or condition by refining or grinding, or by other process of manufacture."

3. LEAD-BEARING ORES-ORES ON FREE LIST.

Lead-bearing ores, though covered by the provision in paragraphs 514 and 614, tariff act of 1897, for the free entry of "calamine" and "minerals, crude," are nevertheless subject to paragraph 181, prescribing a specific duty "on the lead contained" in "lead-bearing ore of all kinds.”

ON application for review of decisions by the Board of United States General Appraisers.

[Decision adverse to the Government.]

The decisions below, which are reported as Abstracts 14438-9 (T. D. 27937), sustained protests of C. G. Brewster against the assessment of duty by the collector of customs at the port of Laredo. The opinions of the Board are as follows:

ABSTRACT 14438.

FISCHER, General Appraiser: The merchandise consists of zinc ore, that covered by protest 180704 being sulphide of zinc, and the remainder silico-carbonate of zinc. Duty was assessed as to the former at the rate of 20 per cent ad valorem under the provisions of paragraph 183, tariff act of 1897, on the value of the zinc contents, and 14 cents per pound under paragraph 181 on the lead contents. On the remaining ores duty was assessed at 20 per cent on the entire valuation. The merchandise is claimed to be free of duty under paragraph 514, 614, or 629, or else dutiable only on the lead contents as prescribed in paragraph 181.

These cases were heard at the same time as, and are included in the testimony offered in the matter of, the protests decided in G. A. 6540 (T. D. 27891), wherein it was held that the term "calamine," as used in paragraph 514 of the tariff, includes both the silicate and carbonate of zinc, and that the sulphide of zinc is covered by the provision in paragraph 614 for crude minerals. Said decision is as follows: [Omitted here.]

In accordance with this ruling we hold that the ores in question are free of duty, the carbonate and silicate of zinc, under paragraph 514, as calamine, and the sulphide of zine, under paragraph 614, with the qualification that those which contain lead are to be charged with duty at the rate of 14 cents per pound on the lead contained therein. To this extent the decisions of the collector are modified, and reliquidation will proceed accordingly.

ABSTRACT 14439.

FISCHER, General Appraiser: The merchandise is described in the letter of the collector as calamine, and the only duty taken thereon was on the lead contents, said by the collector to be 9 per cent of the total quantity of the ore. The importer claims that this return is excessive, and this is the sole question raised by the protest.

This case was heard at the same time, and has been submitted on the same testimony as the protests which were decided in G. A. 6540 (T. D. 27891), wherein carbonate of zinc was held to be included in the term "calamine" as used in paragraph 514 of the tariff act of 1897. In accordance with said ruling we hold that the ore in question is dutiable only on the lead contained therein, as prescribed in paragraph 181 of said act; and from an analysis made at the United States laboratory at New York we find that the average percentage of lead is 7.1. To this extent the protest is sustained, and reliquidation will proceed on this basis.

Said paragraphs 514, 614, and 629 read as follows:

514. Calamine.

614. Minerals, crude, or not advanced in value or condition by refining or grinding, or by other process of manufacture, not specially provided for in this Act.

629. Ores of gold, silver, copper, or nickel, and nickel matte; sweepings of gold and silver.