it is offered in evidence in an action concerning the matter adjudicated or purporting to have been so. In the one case, it is a record importing absolute verity; in the other, mere waste paper. There can be no middle character assigned to judicial proceedings which are irreversible for error.

The decisions of the Board of United States General Appraisers, therefore, in cases wherein it has jurisdiction, are not only final and conclusive, not only presumed to be correct, but are absolute verity when the same have not been appealed from in the manner prescribed by law, and are to be treated as such in any collateral proceeding.

In the case of Hilton's Administrator v. Jones (159 U. S., 584) Justice Brown, in writing the opinion of the court in a case involving the same facts adopts the following language of the Supreme Court of Nebraska:

All presumptions are in favor of the regularity of that proceeding. We must presume that the district court which rendered the decree did so upon ample proofs of title, and that the decree being still in full force is binding and settles the question of title.

In line with this, it must be presumed by every court that when the Board of United States General Appraisers renders a decision with reference to the classification of merchandise it does so upon ample proof, and the conclusion reached must stand as the law and be accepted as such unless appealed from and reversed in the manner prescribed by law.

In Laing v. Rigney (160 U. S., 531), at page 542 of the opinion, it is said:

The settled rule of law is that jurisdiction having attached in the original case, everything done within the power of that jurisdiction, when collaterally questioned, is to be held conclusive of the rights of the parties unless impeached for fraud. Every intendment is made to support the proceeding. It is regarded as if it were regular and irreversible for error. In the absence of fraud no question can be collaterally entertained as to anything lying within the jurisdictional sphere of the original case. Infinite confusion and mischiefs would ensue if it were otherwise. These remarks apply to the order of sale here in question. The County Court had power to make it and did make it. It is presumed to have been properly made, and the question of its propriety was not open to examination upon the trial in the Circuit Court. These propositions are sustained by a long and unbroken line of adjudications in this court. The last one was the case of McNitt v. Turner (16 Wall., 366).

In Cornett v. Williams (20 Wall., 227) it was held that where a county court having jurisdiction to authorize a sale of a decedent's estate for his debts does authorize it and the sale is made, the sale must be presumed to have been regularly made and in the absence of fraud the question of its propriety was not open to examination otherwise than in an appellate court in a proceeding had directly for that purpose. The decision of the Board of United States General Appraisers in Merck & Co.'s case, supra, must therefore be presumed to be correct in every respect, and its propriety can not be called in question except in an appeal directly from that decision. See also United States Trust Co. v. Mercantile Trust Co. et al. (88 Fed., 140).

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But even if the Board of United States General Appraisers was not a judicial tribunal, but was a mere administrative body, the rule as to the presumption of the correctness of its decisions would be the same-its decisions could not be called in question in any collateral proceeding. Its decisions upon questions of fact would be conclusive and would have to be treated as absolute verity, except on direct appeal therefrom. (23 Cyc., 1062.) In Cornett v. Williams, supra, it is said:

As regards public officers, "acts done which presuppose the existence of other acts to make them legally operative are presumptive proofs of the latter." (Bank of the United States v. Dandridge, 12 Wheat., 70.) "Facts presumed are as effectually established as facts proved, where no presumption is allowed." In the case of Ward's Lessee v. Barrows (2 Ohio State, 247) a sale for taxes came under examination. It was held that certain acts of the county auditor were presumptive proofs that he had administered to the collector the oath prescribed by law touching the delinquent list. The sale was sustained.

Where the Board of United States General Appraisers has decided a case involving the classification of merchandise, it is presumed that that decision was rendered upon proper proof and that the conclusion reached was in accordance with law, and, unappealed from, such decision must be treated as a verity and respected as such in all collateral proceedings.

In the case at bar the conclusion reached is that the merchandise in question in no material respect differs from that which was the subject of this board's decision in Merck & Co.'s case, supra, and the presumption being that that decision was rendered upon sufficient and proper proofs, we follow the principles of law there announced and sustain the protest, applying to it the provisions of paragraph 541. The collector will reliquidate the entry accordingly.

(T. D. 34667—G. A. 7590.)

Spanish red peppers or pimentos.

1. SPANISH RED PEPPERS-VEGETABLES-COMMERCIAL DESIGNATION.

Spanish red peppers or pimentos, consisting of the pulp or meat of the pepper, with the skin and seeds removed, put up in small hermetically sealed tins, are dutiable as prepared vegetables under paragraph 252, tariff act of 1909, the evidence not showing that they are excluded by commercial designation from classification as vegetables.

2. VEGETABLES-COMMERCIAL DESIGNATION.

The term "vegetables" as used in paragraph 252, tariff act of 1909, is not shown by the evidence to have any different meaning by virtue of commercial designation than is given to it in ordinary usage.

United States General Appraisers, New York, July 22, 1914.

In the matter of protests 564401, etc., of Austin, Nichols & Co. et al. against the assessment of duty by the collector of customs at the port of New York.

Before Board 3 (WAITE, SOMERVILLE, and HAY, General Appraisers; SOMERVILLE, G. A., not participating).

WAITE, General Appraiser: The gocds in question here are invoiced as red peppers. They appear from the testimony to be what is

known as Spanish red peppers or pimentos. An inspection of the goods show them to be the pulp or meat of the pepper, from which the skin has been removed and the seeds extracted, leaving the pepper in its entirety otherwise, the same being placed in a small tin and hermetically sealed, after sterilization. It is of rather a sweetish insipid taste, but a brilliant red in color. We are told by the witnesses that nothing is placed with the pepper in the can; that the juice, of which there is a considerable amount, has exuded from the pepper as a result of the packing and other treatment, such as sterilization and hermetical sealing, to which the goods have been subjected.

These goods were assessed at 40 per cent ad valorem under paragraph 252, tariff act of 1909, as prepared vegetables. Several claims are made on the part of the importers. After due consideration, however, we are of the opinion that none of the claims will require attention except the one that the merchandise is dutiable under paragraph 480 as an unenumerated manufactured article.

The board has heretofore passed upon this commodity, holding it to be a prepared vegetable under paragraph 241, tariff act of 1897, as against the claim that it should be dutiable as capsicum or red pepper under paragraph 287 of the same act. Abstract 20126 (T. D. 29429).

The question here involved, however, differs from the question in the above case, because the importers here claim that by commercial designation this commodity is excluded from classification as a vegetable. Considerable testimony was taken upon this point. Witness Mack (p. 4 of testimony), on being asked to explain what is understood in his trade by the term "vegetables," said:

In our trade it is understood as something from the vegetable kingdom that can be served as a side dish and eaten as such, which is eaten without having any unpleasant taste, like pease, beans, mushrooms, brussels sprouts, spinach.

This, it will be seen, is entirely inadequate as a definition of "vegetables" within the meaning of the statute. It is not difficult to select vegetables which are not used as side dishes; neither is it necessary that a vegetable to be so classified should be pleasant to the taste of everyone. Undoubtedly onions, brussels sprouts, spinach, and mushrooms would be unpleasant to some people.

This witness further stated that he did not remember whether these goods were classified under the head of vegetables in the catalogue issued by his firm previous to 1909. He did state, however, that they were not recognized and sold by his firm as vegetables. Under the decisions of the courts, in order to establish a commercial designation which shall govern the classification of goods, it must be shown that such designation is the result of usage which is definite, uniform, and general throughout the United States in the trade in which the goods are handled, and that that commercial

designation differs in scope and meaning from the term as commonly used among people or from the dictionary definition.

A vegetable is defined by the Standard Dictionary as follows: Vegetable. n. A part or the whole of a herb used chiefly for culinary purposes, but also frequently for feeding domestic animals.

In considering this question, it must be borne in mind that the statutory term with which we are dealing is the noun "vegetable" and must not be confused with the adjective "vegetable," used in other parts of the statute to describe and designate entirely different commodities.

Primarily, commercial designation would be established by affirmative proof that the trade meaning of a term differing from the common meaning was used to describe a certain commodity. This case, however, differs somewhat from such cases, it being sought by negative proof to exclude by commercial designation a commodity from the term mentioned in the statute. The courts, however, have passed upon the question in its negative form as raised in this case. We think the language of Judge Lacombe in Sidenberg v. Robertson (41 Fed., 763), following the decision in Claflin v. Robertson (38 Fed., 92), clearly illustrates the reasoning necessary in the case at bar. He says:

Wheat is a grain, and no amount of testimony that wheat was never bought and sold in trade by any other name than "winter wheat," that that was the only name which was used with regard to it, and that it was never known as "grain" in the trade, would take it out of the classification of "grains" unless it was also shown that the word "grain" had been distorted from its natural meaning and was used by the trade in a restricted meaning, covering only cereals other than wheat.

So, paraphrasing this language in the case at bar, we may say that sweet peppers are vegetables, and no amount of testimony that sweet peppers were never bought and sold in trade by any other name than sweet peppers, and that they were never known as vegetables in the trade, would take them out of the classification of vegetables unless it were also shown that the word "vegetables" had been distorted from its natural meaning and was used by the trade in a restricted meaning covering only vegetables other than sweet peppers.

So also this board, in the capers case, G. A. 7405 (T. D. 32978), used this language:

The importer, in order to sustain his contention [that capers are not pickles], must show that the word "pickles," as used in the statute, has a definite, uniform, and general meaning throughout the trade in the United States, and that that meaning differs from the ordinary understanding of the term.

This decision was affirmed by the Court of Customs Appeals in Austin v. United States (4 Ct. Cust. Appls., 261; T. D. 33483).

Has it been shown in this case that the term "vegetables" has any meaning in the trade throughout the United States except the ordi

nary or common meaning? In order to determine this fact it will be necessary to review somewhat at length the testimony of the various witnesses. We have cited the testimony of witness Mack above.

Witness Reiss, cf the firm of Reiss & Brady, said (p. 6 of testimony) that he had sold Spanish red peppers in a wholesale way for 15 years; that he did not know the use to which they are put. Two catalogues of the firm of Reiss & Brady were introduced in connection with Mr. Reiss's testimony for the purpose of establishing the fact that red peppers were not included among vegetables; hence it might be reasoned that they were not included in the trade as vegetables. We fail to see, however, how the catalogues of this firm establish this fact. One of these catelogues (Exhibit A) is dated January 16, 1905. While it is true that "Spanish red pepper" is catalogued therein by itself, we also find that pearl onions, California asparagus, and lentils are listed separately and under different general headings.

The latest catalogue of Reiss & Brady offered was that of November, 1907 (Exhibit B). It was pointed out that "Spanish red pepper" was listed on page 8 under a separate head. We also note in the same catalogue that string beans, spinach, mushrooms, and asparagus precede the "Spanish red pepper," and that pearl onions, California asparagus, and lentils follow, all under separate heads.

The reasons given by witness Reiss for excluding these peppers from classification as vegetables seem to us weak and unconvincing. He says they can not be eaten as vegetables, their taste renders them unfit; their taste is strong, pungent, repellent; not impossible to eat them, but nobody would eat them because repelling to the taste. (See testimony of witness Schwiers, infra, which contradicts this.)

Witness Steyer (p. 10) was placed upon the stand evidently to identify a catalogue of Meyer & Lange introduced in evidence (Exhibit C). We gather from the catalogue that they are dealers in foodstuffs, vegetables, and canned fruits. We find in this catalogue that "Spanish peppers" are under a heading by themselves, following capers, and imported prepared mustard. We also see in the same. catalogue that Belgian pease and celery stalks are under a separate and distinct head, following French vegetables of different kinds, and preceding truffles. All of which, in the estimation of the board, tends to show that very little reliance can be placed on the fact that certain things are catalogued in a certain way.

Witness Porges, connected with Strohmeyer & Arpe Co., large importers of food products, said he had sold Spanish red peppers for 15 years and had seen them prepared in Spain. Like all the other witnesses, he stated they are used for garnishing. He said:

We never class them as vegetables; always class them as Spanish peppers. Do not class them as vegetables for the reason they are not used as vegetables. I understand a vegetable is an article which can be eaten as a side dish.