We do not consider the decision in United States v. Wilfred Schade & Co., 16 Ct. Cust. Appls. 366, T. D. 43092, cited by Government counsel, as here applicable. There, unlike in the instant case, no competent proof was adduced to show a trade meaning which was different from the common understanding of the terms "oil cake" and "oil-cake meal." On this lack of proof the court said:

It is obvious that there is no evidence in this record tending to prove that the commercial understanding of the term "oil cake" is different from its common meaning. Nor is there any evidence to the effect that, in the trade and commerce of the United States, the term "oil-cake meal" includes the merchandise in question.

Here there is abundant commercial proof that the terms "pistols" and "revolving pistols" do not include "revolvers," and vice versa. We believe that the facts established of record require a decision ruled by commercial designation. As stated in Cadwalader v. Zeh, 151 U. S. 171:

It has long been a settled rule of interpretation of the statutes imposing duties on imports that if words used therein to designate particular kinds or classes of goods have a well-known signification in our trade and commerce different from their ordinary meaning among the people, the commercial meaning is to prevail, unless Congress has clearly manifested a contrary intention, and that it is only when no commercial meaning is called for or proved that the common meaning of the words is to be adopted.

We therefore sustain the claim in each protest alleging the revolvers invoiced as Alamo Ranger, Bayard, Oscilante or Oscil or Caivt, and Escodin to be properly dutiable at the rate of 50 per centum ad valorem under paragraph 363 as side arms. As to such merchandise the protests are sustained; in all other respects they are overruled. Plaintiff having formally abandoned certain protests, so far as they cover the entries enumerated on the annexed schedule, which schedule is marked "A" and made part of this decision, such scheduled protests are overruled in so far as they cover the enumerated entries.

(T. D. 43806)

Reappraisement-Stipulation

UNITED STATES v. ALPS DRUG Co.

A stipulation of counsel which definitely fixes the value of imported merchandise on a given day without stating the evidence upon which such value is determined, although expressed in the language of the statute, amounts to a settlement of both the law and the facts. Such a course amounts to a perversion of the statute and is in plain violation of the intent of Congress. Draz & Co. v. United States, 8 Ct. Cust. Appls. 382, T. D. 37641, and Swift & Co. v. Hocking Valley Ry. Co., 243 U. S. 281-290, cited.

[Affirmed.]

United States Customs Court

Reappraisement 91487-A

(Decided January 17, 1930)

Comstock & Washburn (George J. Puckhafer of counsel) for the plaintiff. Charles D. Lawrence, Assistant Attorney General (Oscar Igstaedter, special attorney), for the United States.

MCCLELLAND, Justice: This is an appeal to reappraisement from findings of value returned by the appraiser at the port of New York. When it was called for hearing counsel for the Government announced that a stipulation had been agreed upon but had not been signed. Instead of stipulating in open court as counsel might well have done, since an agreement had been reached, request was made for time to file a stipulation and the case was continued for five days. On the same day, however, a stipulation was filed in the following form:

It is stipulated by and between the parties hereto that merchandise such as or similar to the merchandise covered by the above reappraisement was freely offered for sale to all purchasers in the principal markets of the country from which exported at the time of exportation thereof in the usual wholesale quantities and in the ordinary course of trade at the following prices:

Then follows a list of the items and the values agreed upon. The item numbers, the invoice values, the entered and appraised values, and the stipulated values are as follows:

It is indicated on the face of the appeal that it was taken by the collector at the request of the appraiser, but there is nothing to indicate how the stipulated values were arrived at, or how it was ascertained that the prices agreed upon equaled the foreign values of the respective items on the date of exportation, or what was the basis for the statement in the stipulation-

that the export values above set forth are no higher than the foreign value.

If these statements of fact were based on evidence its value must have been passed upon by counsel, and if such was the case their action. amounted to a trial out of court.

It is manifest that the language used in this stipulation was deliberately so used to prevent inquiry by the court as to how the stipulated values were arrived at, or upon what evidence they were based, and to prevent the exercise of any judgment by the court in determining the issue raised by the appeal which, in my opinion, is a perversion of the statute.

The Congress has provided an orderly procedure for the ascertainment of values of foreign merchandise upon which duties are to be levied, and it was not the intent of that body that the judges of this court should be called upon to render perfunctory judgments embodying conclusions of law without having any facts before them upon which to base such conclusions.

To render judgment based upon such a stipulation would be a mere perfunctory act as I have nothing before me upon which to base a finding.

Determination of the value of imported merchandise furnishes the collector with the basis for the assessment of duties and is therefore a conclusion of law which can not be stipulated by counsel.

In Solomon & Co. v. United States, 7 Ct. Cust. Appls. 5, T. D. 36255, Judge Barber, writing for the court, said:

It would be a strange thing if litigants or their accredited representatives could not get together and settle for themselves and the court what were the relevant

facts touching the litigated issues. Time and expense of parties as well as the court are often thereby saved and a speedy determination of the issue facilitated. The right to do this, however, must not be confounded with an attempt to stipulate as to the law. This is a matter ordinarily for the court's determination and is not a proper subject for agreement, although it often happens that there is no disagreement as to what the law may be. If it were undertaken, for instance, to stipulate that an agreed statute should receive a stated interpretation it is at once manifest that such a stipulation could not control the court, whose function is to determine for itself that particular thing. The difference in the two instances is that the parties only are interested in the facts in issue between them, while the public is interested in the interpretation of the statute.

See also Draz & Co. v. United States, 8 Ct. Cust. Appls. 382, T. D. 37641, and Swift & Co. v. Hocking Valley Ry. Co., 243 U. S. 281-290. The appraised values are affirmed.

(T. D. 43807)

Diameter of pipe or tubes under paragraph 328, Tariff Act of 1922 M. BARDE & SONS STEEL & MACHINERY Co. v. UNITED STATES

The diameter to be taken for the purpose of determining the rate of duty upon pipes and tubes made dutiable under paragraph 328 according to diameter is the inside diameter of such pipes and tubes.

United States Customs Court, Second Division

Protest 332327-G against the decision of the collector of customs at the port of Seattle

[Affirmed.]

(Decided January 17, 1930)

Frank L. Lawrence (Martin T. Baldwin of counsel) for the plaintiff. Charles D. Lawrence, Assistant Attorney General (Marcus Higginbotham, special attorney), for the United States.

Before FISCHER, WELLER, and TILSON, Justices; WELLER, J., not participating

FISCHER, Chief Justice: Plaintiff imported at Seattle a quantity of iron pipe upon which duty was assessed at the rate of 14 cents per pound under paragraph 328, Tariff Act of 1922. Protest was filed, claiming that the proper rate is only three-fourths of 1 cent per pound under the same paragraph. The special report of the appraiser points the issue well enough, and we therefore copy it:

The merchandise is galvanized-iron water pipes, butt-welded, 1⁄4" inside diameter, and was therefore returned at 14¢ per pound, paragraph 328, Act of 1922. There is no issue of fact, it being conceded that the outside measurement of the pipe is actually over 1⁄2" in diameter.

Said paragraph reads, in part, as follows:

PAR. 328. Lap-welded, butt-welded, seamed or jointed iron or steel tubes, pipes, flues, and stays not thinner than sixty-five one-thousandths of an inch,

if not less than three-eighths of an inch in diameter, three-fourths of 1 cent per pound; if less than three-eighths and not less than one-fourth of an inch in diameter, 14 cents per pound; if less than one-fourth of an inch in diameter, 14 cents per pound; * *

It will be observed that while the statute varies the rate of duty on pipes and tubes according to the diameter thereof it does not specify whether the inside or outside diameter is to be taken. We are not aided in reaching a determination by any testimony, for none was offered. Nor have we found the briefs helpful, for no authority, legal or technical, has been cited by counsel. The correctness of the collector's action, therefore, is not rebutted. He is presumed to have found all the facts that were necessary to the proper classification of the merchandise. United States v. Stone, 13 Ct. Cust Appls. 233, T. D. 41180. And his conclusion seems to be supported by general reasoning. We may take judicial notice of the fact that pipes and tubes are largely used as conduits for the conveyance of liquids, gases, and other materials; and that being so, the inside diameter would seem to be the significant feature, for it is that which measures the capacity and adaptability of the pipes for their intended use. The outside diameter is merely an incident or resultant of the thickness of the walls, and that may be a matter of choice or may be governed by whether the matter to be sent through the pipe is under pressure or not. As already stated, no testimony was offered in the case, and we are entitled to assume that were there any commercial practice determinative of the question involved herein, evidence of it would have been produced.

The protest is therefore overruled and the decision of the collector affirmed.

(T. D. 43808)

Wire netting

DU VAL KIRK CO. ET AL. v. UNITED STATES

Wire netting used for poultry fencing and for reinforcing concrete is not woven-wire cloth within the meaning of paragraph 318 of the act of 1922, and, not being specifically provided for, it falls within and is covered by the residuary provisions of the metal schedule in paragraph 399 of the act of 1922 for manufactures of metal not specially provided for.

United States Customs Court, Second Division

Protests 182363-G, etc., against the decision of the collectors of customs at the ports of San Francisco and Portland, Oreg.

[Affirmed.]

(Decided January 17, 1930)

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

Charles D. Lawrence, Assistant Attorney General (John F. Kavanagh, special attorney), for the United States.