(T. D. 25944.) No. 4343.-PROTEST ABANDONED.-Protest 18366 h of Judkins & McCormick Company. Before Board 1 (Lunt, Sharretts, and McClelland, General Appraisers; Sharretts, G. A., absent). Opinion by Lunt, G. A. Same as No. 4340 (supra). No. 4344.-PROTEST UNSUPPORTED.-Protest 133032 of Letterio Sulfaro against the assessment of duty by the collector of customs at the port of New York. Before Board 1 (Lunt, Sharretts, and McClelland, General Appraisers; Sharretts, G. A., absent), January 6, 1905. Opinion by McClelland, G. A. Protest overruled on account of insufficient evidence. No. 4345.-PROTEST UNSUPPORTED.-Protest 132965 of Frank Bolatta. Same as No. 4344 (supra). No. 4346.-PROTEST UNSUPPORTED.-Protest 131695 of Knauth, Nachod & Kühne 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), January 6, 1905. Opinion by Hay, G. A. Protest overruled on account of insufficient evidence. No. 4347.--PROTEST UNSUPPORTED.-Protest 128482 of Joseph P. Mosquita against the assessment of duty by the collector of customs at the port of Gloucester. Same as No. 4346 (supra). No. 4348.-PROTEST UNSUPPORTED.—Protest 121143 of Wakem & McLaughlin against the assessment of duty by the collector of customs at the port of Chicago. Opinion by Somerville, G. A. Same as No. 4346 (supra). No. 4349.-PROTESTS UNSUPPORTED.-Protests 108156, etc., of Illinois Central Railroad Company against the assessment of duty by the collector of customs at the port of New Orleans. Opinion by Somerville, G. A. Same as No. 4346 (supra). No. 4350.-PROTEST UNSUPPORTED.-Protest 136807 of N. Carroll & Co. against the assessment of duty by the collector of customs at the port of Chicago. Before Board 2 (Fischer, Howell, and De Vries, General Appraisers). Opinion by Fischer, G. A. Same as No. 4346 (supra). No. 4351.-SUGAR TEST.-Protests 40412f, etc., of Muller, Schall & 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), January 7, 1905. Opinion by Somerville, G. A. Protests overruled on authority of United States v. Bartram (131 Fed. Rep., 833; T. D. 25395), which affirmed the validity of the method prescribed by the Secretary of the Treasury for ascertaining the polariscopic test of sugar under paragraph 209, tariff act of 1897. No. 4352.-SUGAR TEST.-Protests 40438 f, etc., of Walden & Benham et al. No. 4353.-SUGAR TEST.-Protests 87956 f, etc., of Smith & Millar. Same as No. 4351 (supra). No. 4354.-SUGAR TEST.-Protests 36925b, etc., of American Sugar Refining Com. pany et al. against the assessment of duty by the collector of customs at the port of Boston. Same as No. 4351 (supra). (T. D. 25944.) No. 4355.-ELASTIC SILK BELTING.-Protest 123906 of Guthman, Solomons & Co. against the assessment of duty by the collector of customs at the port of New York. Before Board 2 (Fischer, Howell, and De Vries, General Appraisers), January 9, 1905. Opinion by Howell, G. A. Certain goods invoiced as studded beltings, consisting of elastic beltings put up in suitable lengths and widths for belts, and composed of silk, cotton, india rubber, and metal, held to be dutiable as beltings under paragraph 389 of the act of July 24, 1897, on authority of G. A. 5263 (T. D. 24170). No. 4356.-SILK FABRIC.-Protest 113122 of George M. Hannam against the assessment of duty by the collector of customs at the port of New York. Before Board 2 (Fischer, Howell, and De Vries, General Appraisers), January 9, 1905. Opinion by Howell, G. A. Certain merchandise, classified as silk fabrics under paragraph 387, was claimed to be dutiable as Jacquard figured goods under paragraph 391, tariff act of 1897. Protest overruled. No. 4357.-LINEN BOBBINS TAPES. - Protests 58632f, etc., of Mills & Gibb against the assessment of duty by the collector of customs at the port of New York. Before Board 2 (Fischer, Howell, and De Vries, General Appraisers), January 9, 1905. Opinion by Howell, G. A. · Certain merchandise invoiced as linen bobbins held to be dutiable as tapes under paragraph 320, tariff act of 1897. G. A. 5302 (T. D. 24302) followed. No. 4358.-SILK FABRICS.-Protests 28923, etc., of Lamb, Finlay & Co. et al. against the assessment of duty by the collector of customs at the port of New York. Before Board 2 (Fischer, Howell, and De Vries, General Appraisers), January 9, 1905. Opinion by De Vries, G. A. Certain fabrics held to have been properly classified under the provisions of paragraphs 346 and 347, tariff act of 1897, relating to merchandise in chief value of flax. No. 4359.-SILK BELTING.-Protests 101704, etc., of A. Stein & Co. against the assessment of duty by the collector of customs at the port of Chicago. Before Board 2 (Fischer, Howell, and De Vries, General Appraisers), January 9, 1905. Opinion by Fischer, G. A. The goods were invoiced as tinsel belt webbing and classified under the provisions of paragraph 179, tariff act of 1897, for articles made in chief value of tinsel wire, metal threads, etc. The Board found the goods to be composed in chief value of silk and sustained the importers' contention that they should have been classified as silk belting under paragraph 389. No. 4360.-PROTESTS ABANDONED.-Protests 120108, etc., of D. S. Hesse & Bro. et al. against the assessment of duty by the collector of customs at the port of New York. Before Board 2 (Fischer, Howell, and De Vries, General Appraisers), January 9, 1905. Opinion by Fischer, G. A. Protests abandoned; overruled. No. 4361.-PROTEST UNSUPPORTED.-Protest 124483 of F. Vietor & Achelis 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), January 9, 1905. Opinion by Somerville, G. A. Protest overruled on account of insufficiency of evidence. (T. D. 25944.) No. 4362.-PROTESTS UNSUPPORTED.-Protests 120607, etc., of Balfour, Guthrie & Co. et al. against the assessment of duty by the collector of customs at the port of Portland, Oreg. Same as No. 4361 (supra). No. 4363.-PROTESTS UNSUPPORTED.-Protests 27138 ƒ, etc., of F. Schulemann et al. Before Board 2 (Fischer, Howell, and De Vries, General Appraisers). Opinion by Howell, G. A. Same as No. 4361 (supra). TREASURY DEPARTMENT, January 11, 1905. The appended court decisions are published for the information of collectors of customs and others concerned. ROBERT B. ARMSTRONG, Assistant Secretary. (T. D. 25945.) Preserved Singapore pineapples. UNITED STATES v. BODEN. U. S. Circuit Court, Northern District of California. San Francisco, November 14, 1904. No. 13145 (suit 1496). PINEAPPLES IN THEIR OWN JUICE-FRUIT PRESERVED IN SUGAR. In construing paragraph 263, tariff act of 1897, providing a certain rate of duty on "fruits preserved in sugar, molasses. spirits, or in their own juice," and a lower rate on "pineapples preserved in their own juice," Held that it was not the intention of Congress to impose the added duty in the former provision on account of sugar added for preservation of the fruit, and that the latter provision applies to preserved pineapples as distinguished from other fruits, without reference to whether sugar is used in their preparation Held, also, that certain canned pineapples containing an amount of sugar that is not sufficient to preserve the fruit from spoiling if exposed to the open air, but serves as a flavoring only, are dutiable under the latter provision. ON application for review of a decision of the Board of General Appraisers. These proceedings were begun by the collector of customs at the port of San Francisco, and relate to an unpublished decision of the Board of General Appraisers dated August 16, 1901. Note T. D. 23207 and G. A. 5787 (T. D. 25577). MORROW, Circuit Judge: This is a petition by the collector of the port of San Francisco for a review of the decision of the United States Board of General Appraisers at New York as to the rate and amount of duties chargeable on certain pineapples in cans, imported by John H. Boden & Co., S. L. Jones & Co., Getz Brothers & Co., Field Mercantile Company, and Macondray & Co. This merchandise was classified by the collector at the port of San Francisco as 'fruit preserved in sugar," and dutiable at the rate of 35 per cent ad valorem and 1 cent per pound under the first clause of paragraph 263 of the tariff act of 1897. The importers appealed from this decision to the Board of General Appraisers. The decision of the collector was there reversed, the Board deciding that the merchandise should be classified as pineapples preserved in their own juice,” and therefore dutiable at 25 per cent ad valorem under the last clause of paragraph 263 of the same act. The entire paragraph reads as follows: Comfits, sweetmeats, and fruits preserved in sugar, molasses, spirits, or in their own juices, not specially provided for in this Act, one cent per pound and thirty-five per centum ad valorem; if containing over ten per centum of alcohol and not specially provided for in this Act, thirty five per centum ad valorem, and in addition, two dollars and fifty cents per proof gallon on the alcohol contained therein in excess of ten per centum; jellies of all kinds, thirty-five per centum ad valorem; pineapples preserved in their own juice, twenty-five per centum ad valorem. The controversy between the collector and the importers is whether the merchandise in question is dutiable as a "fruit preserved in sugar" or as "pineapples preserved in their own juice.” It is an established rule of construction that, where there are both general description and specific designations of an article in the same act, it is the intention of Congress that the article be classified by its specific designation rather than under the general description. Homer. Collector (1 Wall., 486, 490); Reiche . Smythe (13 id., 162, 165); Smythe v. Fiske (23 id., 374, 380); Movius v. Arthur (95 U. S., 144, 146); Arthur . Lahey (96 id., 112, 113); Arthur v. Stephani (id., 125, 126); American Net Company . Worthington (141 id., 468, 474). The general description in this paragraph, covering the pineapples in question, is "fruits preserved in sugar, molasses, spirits, or in their own juice." No distinction is made in the rate of duty between fruits preserved in sugar or in their own juice, showing that it was not the intention of Congress to impose an added duty because of the sugar used in the preservation of the fruit. But this description is modified by the following clause, "not specially provided for in this Act." At the end of the paragraph, after stating the rates of duty imposed when alcohol is contained in the article, a rate of duty is specially provided for "pineapples preserved in their own juice.” This special provision applies to pineapples, as distinguished from other fruits, in the opinion of the court, and not to the quantity of sugar used in their preparation. In other words, it is the particular variety of canned fruit that is entitled to the lower rate of duty (for reasons sufficient to the framers of the act), and not the manner of its preservation. But, even if the contention of the collector be correct, that the difference in rate of duty was made because of the greater amount of sugar contained in the articles mentioned in the first clause of the paragraph, this court is of the opinion that the quantity of sugar found in the merchandise in controversy, as appears from the chemical analyses introduced in evidence, is not sufficient to bring the merchandise within the classification covered by the higher rate. It would not preserve the fruit from spoiling if exposed to the air, but serves as a flavoring only. The decision of the Board of General Appraisers is affirmed. NOTE. No appeal will be taken in this case. (T. D. 25946.) Preserved figs. UNITED STATES . REISS & BRADY. U. S. Circuit Court of Appeals, Second Circuit. January 4, 1905. Suit 3217. PRESERVED FRUIT-WHOLE FIGS. Held that in the provision in paragraph 263, tariff act of 1897, for fruits preserved in sugar, molasses, spirits, or in their own juices," the distinctive characteristics of that category are the use and form of the articles, and that figs preserved whole in any of the forms thus enumerated are dutiable under said provision and not under the provision in paragraph 264 for "figs," which in commercial significance means dried figs. APPEAL from the circuit court of the United States for the southern district of New York. Note Brennan. United States (129 Fed. Rep., 837; T. D. 25274) now pending on appeal before the circuit court of appeals, first circuit. Before WALLACE, LACOMBE, and COXE, Circuit Judges. This cause comes here upon an appeal from a decision (126 Fed. Rep., 578; T. D. 25049) of the circuit court, southern district of New York, reversing a decision of the Board of General Appraisers, G. A. 4946 (T. D. 23130), which sustained the action of the collector of the port of New York in assessing duty on certain merchandise imported under the tariff act of 1897. LACOMBE, Circuit Judge: The articles in question were imported under different names, namely, "figues vertes a l'eau de vie," "figues au jus," "figues vertes au jus," “figues au marasquin,” which appropriately describe them. They are figs, whole figs, sometimes green, sometimes ripe, which have been preserved, some in spirits, some in sugar or molasses, some in their own juice, some in juice flavored with maraschino. The relevant paragraphs are: 263. Comfits, sweetmeats, and fruits preserved in sugar, molasses, spirits, or in their own juices, not especially provided for in this Act, one cent per pound and thirty-five per centum ad valorem; if containing over ten per centum of alcohol and not specially provided for in this Act, thirty-five per centum ad valorem and in addition two dollars and fifty cents per proof gallon on the alcohol contained therein in excess of ten per 264. Figs, plums, prunes, and prunelles, two cents per pound; raisins and other dried grapes, two and one-half cents per pound; dates, one-half of one cent per pound; currants, Zante or other, two cents per pound; olives, green or prepared, in bottles, jars, or similar packages, twenty five cents per gallon; in casks or otherwise than in bottles, jars, or similar packages, fifteen cents per gallon. The question presented is, In which of these paragraphs are the importations included? It may be said that of the very large number of fruits-peaches, pears, plums, berries of all sorts, oranges, pineapples, etc., variously preserved in sugar, spirits, molasses, or their own juice-figs would be a special class. It may also be said that of the comprehensive group of articles covered by the general word "figs," namely, figs, green, ripe, dried, glacé (sugared), pickled, preserved as jam, or in spirits, or in juice, etc., the three classes-figs preserved in sugar, in spirits, in juice-would be special varieties. The circuit judge determined the question as to the relative specificness of the two paragraphs by the consideration that paragraph 263 in terms excluded from its provisions fruits preserved, etc., not specially provided for, whereas paragraph 264 contains no excepting clause. The test on which he relied has been frequently applied by this court, but we agree with the Board of General Appraisers in the conclusion that the present cause is more in accord with the one presented in Rich v. United States (61 Fed. Rep., 501), which arose under the act of 1890. In that cause, by paragraphs 50 to 60, inclusive, duties were respectively imposed upon various colors-such as "Prussian blue," "satin white," "chrome yellow," "vermillion red," etc.-some colors being subject to a specific and others to an ad valorem duty. By paragraph 61 of the same schedule duty was imposed upon "artists' colors of all kinds in tubes or otherwise." The evidence showed that artists' colors are the colors specifically mentioned by their respective names (as above quoted) in the paragraphs preceding 61, when of a fine grade, specially prepared, and put for the use of artists in tubes, bottles, cakes, or pans, and include also some other specially prepared colors. It was contended that a color mentioned eo nomine in one of the earlier paragraphs could not be retained within the general class mentioned in paragraph 61. After stating the rule that in tariff act construction general terms must give way to particular, this court said: We think the rule has no application to the present case. The case is not one where an article is described by different provisions of the act-one general and the other more specific-but is one where the different provisions describe different articles for duty. While the term "artists' colors in tubes or otherwise" described a class comprehending many colors,, it does not describe a class in which the colors of the earlier paragraphs are included. They do not belong to the class, because they are not of the special variety which it embraces until they are prepared for a particular use and put up in a particular form. Each paragraph has its appropriate operation without impinging upon the other. The colors which have undergone the preparation necessary to bring them within the category commercially known as "artists' colors" are 1 1 |