ent upon its use, such a provision dominates all others. For instance, whitewood, sycamore, and basswood planks prepared for use in the construction of vessels would be free under paragraph 699, § 2, Free List, 30 Stat. 202 (U. S. Comp. St. 1901, p. 1689), and not dutiable under Schedule D, par. 195, 30 Stat. 167 (U. S. Comp. St. 1901, p. 1646), notwithstanding the fact that whitewood, sycamore, and basswood planks are provided for eo nomine in the last-named paragraph. Many other illustrations could be cited, but they are deemed unnecessary. Both paragraphs 115 and 193 are catch-all provisions designed to cover manufactures not provided for either denominatively or descriptively in some other paragraph of the act. Parts of jewelry composed of gold are more specifically provided for in paragraph 434 than in paragraph 193; and by a parity of reasoning agates and other precious stones prepared by the lapidary to be set as jewelry are more specifically provided for in paragraph 435 than in paragraph 115. Indeed, we do not think the agate and other stones in question would be included in the provision of paragraph 115 for manufactures of agate, etc., even were they not provided for descriptively in paragraph 435. The evidence shows conclusively that these stones have undergone no process other than to be cut and polished, and that they are still known commercially as precious stones-specifically as agates, garnets, etc. They have not undergone a process of manufacture whereby their name and intended purpose of use has been changed into articles known as knife handles, penholders, scale bearings, etc. Precious stones cut are provided for in paragraph 434, and until they have been cut for some other purpose than to be set as jewelry they do not become manufactures of the minerals enumerated in paragraph 115. In Hartranft v. Wiegmann, 121 U. S. 615, 7 Sup. Ct. 1240, 30 L. Ed. 1012, the United States Supreme Court said in part: "In Schedule M, § 2504, of the Revised Statutes (page 475, 2d Ed.), a duty of 30 per cent. ad valorem is imposed on 'coral, cut or manufactured'; and in section 2505 (page 484) 'coral marine manufactured' is made exempt from duty. These provisions clearly imply that, but for the special provision imposing a duty on cut coral, it would not be regarded as a manufactured article." In the case at bar the agates and other precious stones have been subjected to no process other than cutting, polishing, or a similar process. Hence, under the explicit language of the Supreme Court, they are not manufactures of agate, garnet, etc.; nor can we discover in any instance where the courts have departed from the rule laid down by the Supreme Court in Hartranft v. Wiegmann, supra. In Erhardt v. Hahn, 55 Fed. 273, 5 C. C. A. 99, the United States Circuit Court of Appeals, Second Circuit, in passing upon handles for knives, penholders, glove hooks, shoe hooks, etc., composed of agate and tiger eye, held that, having been advanced through one or more processes into commercial articles known and recognized in trade by specific and distinctive names other than the name of the material, and put into completed shapes designed and adapted for a particular use, were manufactures. But the following dictum of the court shows how rigidly it adhered to the decision of the Supreme Court in the case cited: "If it could be shown that these articles at the date of the tariff act were bought and sold as precious stones, or were commercially known as such, then, no doubt, they would have to fall under that classification for duty. Not only had these articles (handles, paper weights, etc.) no such commercial designation, but the stones themselves (cut for jewelry purposes), when imported in the form of stones, were bought and sold, as were rubies, diamonds, and other precious stones, by their respective distinctive names. We think the term as used in Schedule N applies to all stones known as 'precious,' whether in their original condition or advanced beyond it by cutting, polishing, etc., so long as they remain 'stones' in the commercial sense of the word." In Hahn v. U. S., 100 Fed. 635, 40 C. C. A. 622, his honor, Judge Lacombe, speaking for the court, said in part: "This court further held in Erhardt v. Hahn, 55 Fed. 273, 5 C. C. A. 99, supra, that the term 'precious stones' applied only to the mineral substances embraced within it while they remained stones, and that articles like those in suit (handles, rollers, and slabs) had been advanced beyond that condition, and had become completed commercial articles, known and recognized in trade by specific and distinctive names other than the name of the material, and had been put into a completed shape designed and adapted for particular uses." The government's contention that the stones in the case now pending are dutiable at 50 per cent. ad valorem under paragraph 115 is based on the decision of the Circuit Court of Appeals, Second Circuit, in the case of U. S. v. Lorsch, 158 Fed. 398, 86 C. C. A. 34, T. D. 28,513. We do not find anything in that decision, however, which justified such a classification. It must be borne in mind that the court in the Lorsch Case was dealing with agate bearings for scales-articles having a distinctive name and intended for utilitarian purposes, and not with articles still commercially known as stones intended exclusively to be set as jewelry. The Board, in passing upon the case, had expressed the opinion that, inasmuch as paragraph 434, unlike paragraph 115, did not contain the qualifying words "not specifically provided for," the agate bearings in question were more specifically provided for in paragraph 434 than as manufactures of agate under paragraph 115. His honor, Judge Lacombe, who reviewed the Board's decision said: "We do not concur in this conclusion. The group of articles known as diamonds and other precious stones includes many different species. When Congress selects by name one of those species, and provides that manufactures of that particular stone should be dutiable at a different rate, it so clearly indicates its intention to withdraw the article from the general group as soon as it becomes a completed manufacture that the absence of the words 'not specially provided for in the paragraph covering the group is not particularly significant. Indeed, importers' counsel concedes that agate paper weights, blotters, paper cutters, seals, and the like would be properly classified under paragraph 115. These agate bearings, which have become completed manufactures, salable as such in trade, are plainly susceptible of a similar classification." The italics are our own, and are inserted to emphasize the point that the court drew a distinction between stones cut to be set as jewelry and agate made into completed articles for industrial uses. This difference is further emphasized by the court's reference to the lower court having affirmed the Board in the agate bearings case on the authority of U. S. v. Benedict, 145 Fed. 914, 76 C. C. A. 446, T. D. 27,032, and by the statement that the Benedict Case related to precious stones cut cabochon, intaglio, cameo, and other well-recognized cuts, mainly used for jewelry, while in the Lorsch Case the court said: "We are clearly of the opinion that these agate bearings have become a manufacture separate and distinct from the 'precious stones advanced' of paragraph 435." In all of the decisions cited it is manifest that industrial articles manufactured from agate or the other minerals enumerated in paragraph 115 are dutiable thereunder at 50 per cent. ad valorem, while precious stones, including the species named in paragraph 115, advanced in condition or value from their natural state by cleaving, splitting, cutting, or other process, and not set, if known commercially as precious stones and designed for use in the manufacture of jewelry, are dutiable at 10 per cent. ad valorem under paragraph 435. In consonance with the views herein expressed, and on the authority of the decisions cited, we sustain the protests and reverse the collector's de cision. Addison S. Pratt, Asst. U. S. Atty. Comstock & Washburn (Albert H. Washburn, of counsel), for importers. PLATT, District Judge. Decision affirmed, on the opinion of the Board. BENZIGER BROS. v. UNITED STATES. (Circuit Court, S. D. New York. May 18, 1909.) No. 5,272. CUSTOMS DUTIES (§ 37*)-CLASSIFICATION-ROSARIES-EJUSDEM GENERIS. In Tariff Act July 24, 1897, c. 11, § 1, Schedule N, par. 408, 30 Stat. 189 (U. S. Comp. St. 1901, p. 1673), rosaries are not subject to duty as "articles # in part of beads," because not ejusdem generis with the other goods (ornaments, trimmings, etc.) there enumerated. [Ed. Note. For other cases, see Customs Duties, Dec. Dig. § 37.*] On Application for Review of a Decision by the Board of United States General Appraisers. The decision below, reported as G. A. 6,739 (T. D. 28,883), affirmed the assessment of duty by the collector of customs at the port of New York on imported rosaries. The collector classified the rosaries under the provision in Tariff Act July 24, 1897, c. 11, § 1, Schedule N, par. 408, 30 Stat. 189 (U. S. Comp. St. 1901, p. 1673), for "articles * * in part of beads." The pertinent part of this paragraph is as follows: "408. * 串 Fabrics, nets, or nettings, laces, embroideries, galloons, wear ing apparel, ornaments, trimmings, and other articles not specially provided for in this act, composed wholly or in part of beads, * * * sixty per centum ad valorem." The majority and dissenting opinions of the Board of General Appraisers read in part as follows: MCCLELLAND, General Appraiser. The merchandise involved is returned by the appraiser as "rosaries," and duty was assessed thereon at the rate of 60 per cent. ad valorem under the provisions of Tariff Act July 24, 1897, c. 11, § 1, Schedule N, par. 408, 30 Stat. 189 (U. S. Comp. St. 1901, p. 1673). The protest is against such assessment, and it is claimed alternatively that duty should have been assessed thereon according to the component material of chief value. * * When the protest was called for hearing, it was submitted for decision on an affidavit of Issa Batarse, made before the American consul at Jerusalem, in the province of Palestine, empire of Turkey, in which it is set forth that in each of the grades of rosaries involved the beads are the component material of chief value. It is not the practice of the Board to accept such affidavits, in the absence of corroborative proof, as conclusive. But, since the Board has passed upon a similar question, we deem it unnecessary to make any finding as to the component material of chief value. In Abstract 16,039 (T. D. 28,300) the Board passed upon the classification of rosaries, which, from the records in that case and the one at bar, we be lieve to be similar to those we are now called to pass upon; and, as in that case it was held that the merchandise was subject to a duty at the rate of 60 per cent. ad valorem under the provisions of paragraph 408 of said tariff act as here assessed, we follow the Board's conclusions and overrule the protest, affirming the action of the collector. SHARRETTS, General Appraiser. I do not concur in the conclusions reached by my colleagues in this case. Rosaries, although composed principally of beads, are neither ornaments nor ornamental in character. They are carried in the pocket and are used exclusively for devotional purposes. In this respect they differ, as far as I am aware, from any other known article composed of beads; and I can think of no more appropriate appliFor other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes cation of the principle of ejusdem generis than that the provision in paragraph 408 for all other articles composed wholly or in part of beads relates only to articles similar to those specified therein, all of which, without exception, are ornaments, or articles ornamented, and beads are applied thereto. To include rosaries in paragraph 408 would be to make a single exception that would destroy the symmetry of the whole paragraph. The tariff act of 1883 (Act March 3, 1883, c. 121, 22 Stat. 488) and prior acts associated beads with ornamented articles. Turning to the act of 1883, we find : "396. Beads and bead ornaments of all kinds, except amber, fifty per centum ad valorem." The act of 1890 (Act Oct. 1, 1890, c. 1243, 26 Stat. 564) made no separate provision for bead ornaments; but under the act of 1894 (Act Aug. 27, 1894, c. 349, 28 Stat. 509) there were two paragraphs relating to beaded goods, namely: "301. Laces and articles made wholly or in part of lace * * and beaded silk goods." And: "354. Manufactures known commercially as beads, beaded or jet trimmings and bead ornaments, thirtyfive per centum ad valorem." As bearing upon what Congress had in mind in framing these paragraphs, it is instructive to note that in volume 6, pages 52 and 53, of the hearings before the finance committee of the United States Senate, it was recommended that fabrics or articles ornamented with beads should be classified with laces, edgings, embroideries, etc. Paragraph 408 of the tariff act of 1897, in the light of the provisions of former acts, extending back for a period of more than 50 years, would seem to include only beads and bead ornaments, or articles ornamented with beads. Such an interpretation of the statutes would and should exclude from paragraph 408 articles used solely for devotional purposes. Paragraph 179, Schedule C, of the present tariff act (30 Stat. 166 [U. S. Comp. St. 1901, p. 1644]), enumerates laces, embroideries, braids, galloons, trimmings, or other articles made wholly or in chief value of tinsel wire, lame or lahn, bullions, or metal threads, and it will be observed that the foregoing enumerated articles are identical with those specified in paragraph 408. Merchandise known as metallics, consisting of lame, was returned for duty by the collector at the port of New York at 60 per cent. ad valorem under paragraph 179 as articles composed wholly of lame. An appeal having been taken, Judge Coxe, in passing upon the question, said in part: "It is entirely clear, within the recognized doctrine of 'noscitur a sociis', that it [metallics] cannot be classed among the articles made of lame, which Congress intended to cover by the last clause in question, for that clause relates to laces, embroideries, braids, and similar articles." Marsching v. U. S. (C. C.) 113 Fed. 1006. Paragraph 339, Schedule J, of the present tariff act (30 Stat. [U. S. Comp. St. 1901, p. 1662]), also contains a provision very similar to that in paragraph 408, covering laces, embroideries, nets, and nettings and other articles. The Circuit Court for the Northern District of Illinois upheld the contention of the importer that this did not cover fish netting, but was limited by the rule of "ejusdem generis" to articles of the general character therein specified. Ederer v. U. S. (C. C.) T. D. 25,111. See, also, Wiebusch et al. v. U. S., 84 Fed. 451, 28 C. C. A. 154, regarding the rule of "ejusdem generis" or "noscitur a sociis." Great stress has been laid upon the decision of the Supreme Court in Benziger v. Robertson, 122 U. S. 211, 7 Sup. Ct. 1169, 30 L. Ed. 1149, where it was held that rosaries, not being enumerated, were dutiable at 50 per cent. ad valorem under Schedule M, § 2504, Rev. St. p. 473 (2d Ed.) the rate applicable to beads in accordance with the provisions of section 2499, Rev. St., which enacted that on all articles manufactured from two or more materials the duty shall be assessed at the highest rates at which any of its component parts may be chargeable. Rosaries, although not provided for eo nomine in the present act, are provided for according to material. Were such not the case, however, inasmuch as beads unstrung constitute the component material of chief value in the rosaries in question, under the Benziger Case they would be dutiable at 35 per cent. ad valorem as beads, under paragraph 408, in accordance with the provisions of section 7 of the present act (30 Stat. 205 [U. S. Comp. St. 1901, p. 1694]), and as 35 per cent. would be the mini mum rate now claimed by the importers, I do not deem it necessary to further discuss this phase of the case. In my opinion the importers' contention is well founded and the protest should be sustained. Everit Brown, for importers. Addison S. Pratt, Asst. U. S. Atty. PLATT, District Judge. Decision reversed, on the dissenting opinion of General Appraiser Sharretts, which thoroughly expresses my view that the rosaries in question are excluded from paragraph 408 of the tariff act by the principle of ejusdem generis. LORD & TAYLOR v. UNITED STATES. (Circuit Court, S. D. New York. May 21, 1909.) No 5,466. CUSTOMS DUTIES (§ 32*)—CLASSIFICATION-"COTTON CLOTH"-FABRICS IN PART OF JUTE. In Tariff Act July 24, 1897, c. 11, § 1, Schedule I, par. 310, 30 Stat. 178 (U. S. Comp. St. 1901, p. 1659), the definition of "cotton cloth" as being "all woven fabrics of cotton" refers to goods composed entirely of cotton, or containing at most but a small percentage of some other fiber; and cloth which, though composed chiefly of cotton, yet contains a large minority of jute, is not within the definition. [Ed. Note. For other cases, see Customs Duties, Dec. Dig. § 32.* On Application for Review of a Decision by the Board of United States General Appraisers. The decision below, G. A. 6,875 (T. D. 29,596), affirmed the assessment of duty by the collector of customs at the port of New York on cloth composed in chief value of cotton, but of which 37 per cent. was jute. The importers had protested against the action of the collector in classifying the goods under Tariff Act July 24, 1897, c. 11, § 1, Schedule I, par. 322, 30 Stat. 179 (U. S. Comp. St. 1901, p. 1661), and contended for classification under the provisions in said schedule for "cotton cloth." The Board overruled this contention on the authority of a former ruling. G. A. 5,018 (T. D. 23,348), which had related to cloth chiefly of cotton, but containing, respectively, 44 per cent. of flax and 45 per cent. of jute. The pertinent portion of the opinion of the Board in the case last cited is as follows: "Somerville, General Appraiser. Schedule I, 'Cotton Manufactures,' of Tariff Act July 24, 1897, c. 11, § 1, 30 Stat. 175 (U. S. Comp. St. 1901, p. 1655), embraces various kinds of cotton cloth, and among other things fixes a duty upon the basis of the quality of the cloth, regulated by the count of threads to the square inch and the weight of goods to the square yard. Paragraph 310, 30 Stat. 178 (U. S. Comp. St. 1901, p. 1659), defining the term 'cotton cloth,' reads as follows: * * * "310. The term "cotton cloth" or "cloth," wherever used in the paragraphs of this schedule, unless otherwise specially provided for, shall be held to include all woven fabrics of cotton in the piece or otherwise, whether figured, fancy, or plain, the warp and filling threads of which can be counted by unraveling or other practicable means.' *For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes |