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case (T. D. 21628), decided in 1899; and Bolognesi's case (T. D. 26414), decided in 1905.

These authorities afford convincing evidence that the precise question before us, whenever it has been before the courts or other tribunals, has been uniformly decided contrary to the appellant's contention. The fact that the question has been litigated demonstrates that the administrative officers having charge of the enforcement of the customs laws have uniformly contended for the same interpretation as they claim here. That such has actually been the departmental construction of the statute is clearly shown by a reference to the rulings in T. D. 3139 (1877); T. D. 7858 (1886); and the Customs Regulations, 1884, article 363; 1892, article 938: 1899, article 1460; 1908, article 1069.

Not only this, but in Johnson v. Myers (54 Fed. 417), decided in the Eighth Circuit Court of Appeals in 1893, and in Myers v. Hot Springs Co. (169 Fed. 628), decided in the Ninth Circuit Court of Appeals in 1909, involving motions to dismiss appeals upon the ground that the same were not taken within six months, it was held upon a somewhat careful review of the authorities, that, when the last day of the six months fell upon Sunday the appeals must be taken the preceding day. In substance, the law was said to be that, when the statute prescribed a limited time for the doing of an act, the courts were without power to extend the time so fixed, where in a given case the last day of the prescribed time happened to fall on Sunday.

In the latter of these two cases, the Shefer and Johnson decisions, supra, were cited in support of the court's conclusion.

It must be admitted that such a uniform departmental practice in that regard and a consistent construction of the statutes by the courts for the length of time shown are of great weight in determining the question before us; and especially is this so when it is considered that since Judge Lacombe's decision at least two important tariff acts have been placed upon the statute books with no suggestion therein that the Congress intended to correct an erroneous construction or interpretation thereof, which it was charged with knowledge had obtained, or to extend the time of filing the protest when the last day of the time fixed therefor by the statute fell on Sunday. (Pp. 481-482.)

As a general proposition of law it seems clear that unless the statute specifically prescribes that depositing in the mail is sufficient filing, it will not be regarded as a compliance with the statute which prescribes that the filing must be at a definite place and within a specified time. The Psaki Bros. case, supra, construed a statute passed in 1890. A number of tariff acts have been passed since that date, but Congress has not seen fit to prescribe that "mailing" is sufficient "filing," which strengthens our belief that Congress intended an actual physical filing of the applications for review in the office of the clerk. Continued administrative practice and construction of the statute point to the correctness of the foregoing conclusions.

It follows that the application for review not having reached the clerk's office until the sixty-first day, the appeal to this court was not "within the time and in the manner provided by law," and therefore must be dismissed.

The appeal is therefore dismissed.

TONG & Co. e. UNITED STATES (No. 2284).1

DRUG-CRUDE GINSENG-CHOW SUM.

Ginseng roots which have been dried and treated with sugar and honey, such treatment having the purpose and effect of enhancing their value commercially but not therapeutically, known by the Chinese as chow sum and used by them as a medicine, have not been advanced so as to take them without free list paragraph 477, tariff act of 1913, providing for certain crude drugs, and carry them within the provisions of paragraph 27 for certain advanced drugs or those of paragraph 17 for medicinal compounds and combinations.

United States Court of Customs Appeals, November 17, 1923.

APPEAL from Board of United States General Appraisers, G. A. 8625 (T. D. 39554). [Reversed.]

Frank L. Lawrence (Martin T. Baldwin of counsel) for appellants.

William W. Hoppin, Assistant Attorney General (Pelham St. George Bissell, special attorney, of counsel), for the United States.

[Submitted without oral argument October 22, 1923.]

Before MARTIN, Presiding Judge, and SMITH, BARBER, and BLAND, Associate Judges. BLAND, Judge, delivered the opinion of the court:

The importations were chow sum or dried ginseng. The collector considered it prepared medicine, and assessed it with duty at 20 per cent ad valorem under paragraph 17 of the tariff act of 1913, which provides for "chemical and medicinal compounds, combinations, and all other similar articles * * * when "put up in individual packages of 2 pounds or less."

The importers urged before the Board of General Appraisers that the goods should be assessed at 10 per cent under paragraph 27 of the tariff act of 1913, as drugs advanced, or be placed under the free list, paragraph 477, of said act, as crude drugs in their natural

state.

The board sustained the contention that the goods were dutiable as drugs advanced under paragraph 27. The importers appeal from this decision, and contend that the importations fall under paragraph

477.

This appeal calls for consideration by this court of substantially the same evidence and facts that were involved in G. A. 2505 (T. D. 39006). The sample and testimony of that case were by agreement used in this case.

Paragraphs 17, 27, and 477 of the tariff act of 1913 read as follows: 17. Chemical and medicinal compounds, combinations, and all similar articles dutiable under this section, except soap, whether specially provided for or not, put up in individual packages of two and one-half pounds or less gross weight (except samples without commercial value) shall be dutiable at a rate not less than 20 per centum ad valorem: Provided, That chemicals, drugs, medicinal, and similar substances, whether dutiable or free, imported in capsules, pills, tablets, lozenges, troches,

1 T. D. 39897.

ampoules, jubes, or similar forms, shall be dutiable at not less than 25 per centum ad valorem.

27. Drugs, such as barks, beans, berries, buds, bulbs, bulbous roots, excrescences, fruits, flowers, dried fibers, dried insects, grains, gums, herbs, leaves, lichens. mosses, roots, stems, vegetables, seeds (aromatic, not garden seeds), seeds of morbid growth, and weeds; any of the foregoing which are natural and uncompounded drugs and not edible, and not specially provided for in this section, but which are advanced in value or condition by shredding, grinding, chipping, crushing, or any other process or treatment whatever beyond that essential to the proper packing of the drugs and the prevention of decay or deterioration pending manufacture, 10 per centum ad valorem: Provided, That no article containing alcohol shall be classified for duty under this paragraph.

477. Drugs, such as barks, beans, berries, buds, bulbs, bulbous roots, excrescences, fruits, flowers, dried fibers, dried insects, grains, gums, gum resin, herbs, leaves, lichens, mosses, logs, roots, stems, vegetables, seeds (aromatic, not garden seeds), seeds of morbid growth, weeds; any of the foregoing which are natural and uncompounded drugs and not edible and not specially provided for in this section, and are in a crude state, not advanced in value or condition by shredding, grinding, chipping, crushing, or any other process or treatment whatever beyond that essential to the proper packing of the drugs and the prevention of decay or deterioration pending manufacture: Provided, That no article containing alcohol shall be admitted free of duty under this paragraph.

The Board of General Appraisers in holding that the ginseng in question should be assessed under paragraph 27 at 10 per cent ad valorem as an uncompounded drug, advanced, said:

Upon the record then made we classified the merchandise as a drug advanced under paragraph 27 at 10 per cent ad valorem. Here a fuller record is made, and while the new evidence makes out clearly that the advancement was made to improve its appearance for sale, we feel that does not take it out of paragraph 27, and so hold, adhering to our finding as made in G. A. 8505.

The testimony of the Chinamen engaged in the Chinese drug trade, we think, establishes the following facts: The ginseng root is taken from the ground in the mountains of northern China and transported to the southern portion of China in a dried and shriveled state, and there is soaked or treated with sugar or honey in order to bring back its natural plump appearance, so as to make it more attractive in appearance, and cause it to meet a more ready sale in the market. It is not disclosed just how the sugar or honey is applied, but when imported here the ginseng is frequently incrusted with sugar crystals. The root is not shredded, ground, chipped, crushed, scraped, or changed in any way except to treat it with sugar or honey. When so treated it is heavier and bulkier than the dried ginseng, and is cheaper per pound on account of the sugar content, which adds nothing to its therapeutic value. Greater quantities of the sugar-treated ginseng are required in compounding medicine than are used when the dried article is prescribed. The root is never used by itself as medicine, but is compounded with other drugs. Before compounding it must be pounded into powder or sliced, and often it 72052-25†-VOL 12- -3

is cooked, in which process the addition of the sugar or honey has no effect on use or value. The sugar restores the ginseng to its natural appearance as it came from the ground, and preserves this appearance until compounded into a medicine. It is used for "shortness of breath" and "to strengthen the breast." It is not used as a food.

The question for the decision of this court is, Has the article been advanced in value or condition by a shredding, grinding, chipping, crushing, or any other process or treatment whatever beyond that essential to the proper packing of the drug and the prevention of decay or deterioration pending manufacture? It is admitted that it is not advanced in value as a drug, but is restored to the value it possessed when it came out of the ground, and that it is not advanced in value by shredding, grinding, chipping, or crushing. Is it advanced in "condition" by "any other process or treatment whatever beyond that essential to the proper packing of the drug and the prevention of decay or deterioration pending manufacture"? We think that it has not been so advanced. There is no advancement in the condition of the root from that in which it left the ground, nor can its condition be said to be advanced from its shriveled, dried condition while in southern China, and whatever process or treatment it may have had can be said to prevent deterioration from its original condition. It would seem that instead of being advanced from its original condition, it has been restored to its natural or original condition, where it was in the crudest possible state. If the sugar treatment changed its original characteristics, its use, or its value, or if the ginseng came out of the ground in its crudest condition shriveled and dried, and the sugaring process was used to make it plump so as to improve its appearance for sale, we might have a different question. However, it is not necessary for us to decide that question, and we do not do so. It seems clear that the importations fall under paragraph 477 of the tariff act of 1913, and as such they are therefore free of duty.

The judgment of the Board of General Appraisers is reversed.

UNITED STATES v. KRESGE Co. (No. 2259).1

1. ARTIFICIAL FRUITS.

Pincushions made to resemble fruits, but so crudely as to lack the decorative effect characteristic of the fruits they attempt to simulate, should have been classified as manufactures of silk, under paragraph 318, tariff act of 1913, rather than as artificial and ornamental fruits, under paragraph 347. 2. CONSTRUCTION AIDED BY CONTEXT-FEATHERS AND QUILLS.

Since Congress has seen fit to provide separately for feathers and quills, they must be regarded as distinctly different tariff entities Manufactures of

'T. D. 39915.

quills are associated in paragraph 368, tariff act of 1913 with manufactures of bone, chip, horn, and whale bone, and from that association it can hardly be presumed that the paragraph was intended to cover either flight feathers or their barbs, which differ radically from the named materials in quality texture, and use.

3. CHRISTMAS TREES MADE OF FEATHERS.

Miniature artificial Christmas trees, the foliage made of the barbs of flight feathers and being the material of chief value, can not be classified as manufactures of quills, under paragraph 368, tariff act of 1913, and their classification as feather manufactures, under paragraph 347, is not disturbed.

United States Court of Customs Appeals, November 17, 1923. APPEAL from Board of United States General Appraisers, G. A. 8606 (T. D. 39451).

[Modified.]

William W. Hoppin, Assistant Attorney General, for the United States.
Barnes, Chilvers & Halstead (Frank M. Halstead of counsel) for appellee.

[Oral argument Oct. 3, 1923, by Mr. Hoppin and Mr. Halstead.]

Before MARTIN, Presiding Judge, and SMITH, BARBER, BLAND, and HATFIELD Associate Judges.

SMITH, Judge, delivered the opinion of the court:

This case involves the tariff status of pincushions and of small artificial Christmas trees imported at the port of New York. The collector classified the pincushions as artificial fruits dutiable at 60 per cent ad valorem under paragraph 347 of the tariff act of 1913, and the Christmas trees as manufactures in chief value of feathers dutiable at he same rate under the same paragraph, which said paragraph in so far as pertinent reads as follows:

347. * * * artificial or ornamental feathers suitable for use as millinery ornaments, artificial and ornamental fruits * * of whatever material composed, not specially provided for in this section, 60 per centum ad valorem; and all articles not specially provided for in this section, composed wholly or in chief value of any of the feathers, flowers, leaves, or other material herein mentioned, 60 per centum ad valorem.

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The importer claimed in its protests and brief that the pincushions were manufactures in chief value of silk dutiable at 45 per cent ad valorem under paragraph 318 of the tariff act of 1913, and that the Christmas trees were dutiable at 20 per cent ad valorem as manufactures of quills under the provisions of paragraph 368 of the same act. The paragraphs relied upon by the importer in his protest and brief in so far as pertinent are as follows:

318. * * * Manufactures of silk, or of which silk or silk and india rubber are the component materials of chief value, not specially provided for in this section, 45 per centum ad valorem.

368. *

*

* Manufactures of bone, chip, grass, horn, quills, whalebone, 20 per centum ad valorem.

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