articles are properly entitled to free entry under paragraph 441 of said act as "shoe machinery * * * in whole or in parts,

including repair parts."

These facts are conclusively established of record:

That skiving leather is an absolutely essential operation in the manufacture of all shoes, except babies' shoes; that the skiving process consists in beveling the edges of two or more pieces of leather to enable them to be glued or sewn together without increasing at the joining point the uniform thickness of the assembled parts; that all of the machines here in question are specially and solely designed to perform this skiving operation; that of the four types or models thereof which have been received in evidence herein, one (model E) represents a type of machine which is used exclusively by the shoe-manufacturing industry, while the other three (models C, F, and G) are representative specimens of machines. 75 to 85 per cent of which are commercially dealt in and employed as shoe machinery, the balance thereof being used for skiving leather by bookbinders, manufacturers of leather goods, etc.

In view of the clear preponderance of the evidence in favor of the contention of the importer here made, we are of opinion that said machines are properly classifiable as shoe machinery within the purview of the law, and are accordingly entitled to the benefits of free entry accorded thereto by virtue of the specific provision. therefor in said paragraph 441.

In reaching this conclusion we are not unmindful of our previous ruling in Abstract 36697 (T. D. 34824) wherein we overruled a protest filed by this same importer claiming free entry for certain "skiving knives of metal, finished parts of leather cutting machines," on the theory that they constituted parts of shoe machinery. That decision, however, was based upon a rather insufficient and unsatisfactory record, which, while it tended to show various commercial uses for which said knives were employed, utterly failed to establish that the chief or predominant purpose for which they were designed was to be used as parts of shoe machinery. This phase of the issue is clearly and fully presented by the record in the case at bar, which we believe wholly substantiates the claim alleged by the importer herein that the merchandise here under consideration is correctly classifiable as shoe machinery.

The fact that it is also here shown that a comparatively small percentage of these machines are actually used, or that certain of the machines are susceptible of being commercially employed for skiving leather destined for manufacturing purposes other than in the making of shoes, in no way affects the soundness of our conclusion. Unquestionably the sole criterion which must necessarily and in the last analysis determine the dutiable or nondutiable character of these particu

lar machines is the usual and common or chief use for which they are ordinarily employed in the trade and commerce of this country. As before stated, the predominant or chief use thereof in the manufacture of shoes is affirmatively established by the uncontradicted testimony offered on behalf of the importer.

In United States v. Hempstead & Son (3 Ct. Cust. Appls., 436; T. D. 33004), which affirmed the ruling of this board in Abstract 28524 (T. D. 32529), wherein was involved precisely the same legal proposition here presented, except that the provision there referred to was "jute manufacturing machinery" in paragraph 197 of the act of 1909, the court, judicially construing the meaning and scope of said provision, said:

The court is of the opinion that the dutiable character of such imported machinery as claims entry under paragraph 197 is properly to be determined by the usual and common or chief use of the article, and that it is not necessary that the imported machinery "should be of a character which is used solely in the manufacture of jute," in order to claim assessment as jute manufacturing machinery under the paragraph. Where, as in this case, the question of use is of paramount importance to the proper determination of the issue presented, the rule is well settled that the chief or predominant use to which the article is applied definitely determines its classification, although it may be shown to have been exceptionally and practically used for other purposes. Magone v. Wiederer (159 U. S., 555). Although an article

is not used exclusively for the purpose for which it is imported, and, in fact, is sold to persons who may use it for other purposes, it is none the less properly classifiable under the specific tariff provision covering it in its general and commonly known use. Worthington v. Robbins (139 U. S., 337); Isaacs v. Jonas (148 U. S., 648); Vandiver v. United States (1 Ct. Cust. Appls., 194; T. D. 31219), etc.

In a comparatively recent decision rendered by the United States Court of Customs Appeals in the case of United States v. Boker (6 Ct. Cust. Appls., -; T. D. 35472), the necessity and importance of applying the rule of chief use in the ascertainment of the correct tariff classification of an imported article is strongly emphasized. There the question was whether certain hedge shears were to be considered agricultural implements within the meaning of paragraph 391 of the present act. Judge De Vries, after discussing various phases of the question presented, and citing numerous authorities for the the application of the rule of chief use, said:

All these considerations imply and necessitate that the use of the implement must determine its classification whether or not an agricultural implement within the paragraph, and that that use, and the determinative fact, is chief use.

In the light of these decisions it necessarily follows that the machines and parts thereof here under consideration which have been specially designed to be employed as shoe machinery, and which, as shown by

the record, are used almost exclusively by that particular industry, are clearly classifiable under the specific provision for shoe machinery in paragraph 441, and we so find.

The protests are accordingly sustained and the decisions of the collector are reversed.

(T. D. 35590-G. A. 7753.)

Agate collar buttons.

AGATE COLLAR BUTTONS-COMMERCIAL DESIGNATION.

Collar buttons commercially known as "agate collar buttons" and assessed for duty under the provision of paragraph 339 of the tariff act of 1913 for collar buttons composed wholly of agate, are properly dutiable under the same paragraph of the law as "agate buttons."

The phrase "composed wholly of" any specified material will not permit of that liberal construction which might result from commercial designation. Under this well settled rule of construction the words "agate buttons" might be held to mean "buttons commercially known as agate buttons," but it would be carrying that rule too far, we think, to hold that the phrase "composed wholly of agate" includes articles that are not composed of agate at all.

United States General Appraisers, New York, July 15, 1915.

In the matter of protests 735397, etc., of Charles H. Brandt against the assessment of duty by the collector of customs at the port of New York.

[Reversed.]

Walden & Webster (Henry J. Webster of counsel) for the importers.

Bert Hanson, Assistant Attorney General (Thos. F. Tumulty and Samuel Isenschmid, special attorneys), for the United States.

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

HAY, General Appraiser: The merchandise in this case is reported by the appraiser as "agate collar buttons;" it was assessed for duty under paragraph 339 of the tariff act of 1913 as "collar * * * buttons ** composed wholly of * * * agate" at 40 per cent, and is claimed to be dutiable as "agate buttons" at only 15 per cent under paragraph 339.

*

The testimony shows that the merchandise in question is commercially known as "agate collar buttons;" that it is not composed of agate; and that under the tariff act of 1909 it was classified as agate buttons.

Paragraph 427 of the tariff act of 1909, or at least the controlling provision of that paragraph, reads as follows:

Par. 427. Buttons or parts of buttons and button molds or blanks, finished or unfinished, shall pay duty at the following rates, the line button measure being onefortieth of one inch, namely: Buttons known commercially as agate buttons, metal trousers buttons (except steel), and nickel bar buttons, one-twelfth of 1 cent per

line per gross; buttons not specially provided for in this section, and all collar or cuff buttons and studs composed wholly of bone, mother-of-pearl, or ivory, 50 per centum ad valorem.

Paragraph 339, tariff act of 1913, under which the merchandise was assessed and claimed to be dutiable, reads as follows:

Par. 339. Buttons of vegetable ivory in sizes thirty-six lines and larger, 35 per centum ad valorem; below thirty-six lines, 45 per centum ad valorem; buttons of shell and pearl in sizes twenty-six lines and larger, 25 per centum ad valorem; below twenty-six lines, 45 per centum ad valorem; agate buttons and shoe buttons, 15 per centum ad valorem; parts of buttons and button molds or blanks, finished or unfinished, and all collar and cuff buttons and studs composed wholly of bone, motherof-pearl, ivory, or agate, all the foreoging and buttons not specially provided for in this section, 40 per centum ad valorem.

These paragraphs so far as they relate to the merchandise in question differ in that the words "buttons known commercially as" have been eliminated in the provision for agate buttons in the act of 1913, leaving the provision simply "agate buttons," and the words "or agate" inserted after the provision for "all collar and cuff buttons and studs composed wholly of bone, mother-of-pearl, or ivory."

By this change Congress has removed the eo nomine provision for "buttons known commercially as agate buttons," and in its place provided for collar and cuff buttons and studs composed wholly of agate, and agate buttons. In view of the construction placed upon the provision for collar and cuff buttons composed "wholly" of certain materials in Henry Buss & Co.'s case, G. A. 7664 (T. D. 35064), the buttons under consideration would not come under that provision of the tariff act. It was there held:

* * * The word "wholly," in describing the material out of which the collar and cuff buttons must be made, was inserted by Congress, no doubt, for the express purpose of excluding from this provision all collar and cuff buttons not made wholly of the materials specified; * * *.

Substantially the same construction was placed upon this provision of paragraph 339 by the United States Court of Customs Appeals in Henry Buss & Co. v. United States (6 Ct. Cust. Appls., ; T. D. 35441).

The phrase "composed wholly of" any specified material will not permit of that liberal construction which might result from commercial designation. Under this well-settled rule of construction the words "agate buttons" might be held to mean "buttons commercially known as agate buttons," but it would be carrying that rule too far, we think, to hold that the phrase "composed wholly of agate" includes articles that are not agate at all. All collar buttons, therefore, not composed wholly of bone, mother-of-pearl, ivory, or agate, are excluded from the operation of that provision of paragraph 339. Congress having placed collar buttons "wholly of agate" in a provision of the paragraph at a higher rate of duty than had been hereto2150-VOL 29-15- -3

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fore provided for collar buttons "commercially known as agate buttons" and having left in the same paragraph a provision for "agate buttons," it must be presumed that the latter term was intended to cover all buttons commercially known as agate buttons. The protests are therefore sustained.

(T. D. 35591—G. A. 7754.)

Jewelry-Beaded articles.

(1) Necklaces composed of beads, with or without snaps or clasps for fastenings, are dutiable as jewelry rather than as beaded articles.

(2) The first clause of paragraph 356 of the tariff act of 1913, "jewelry, commonly or commercially so known, valued above twenty cents per dozen pieces, 60 per centum ad valorem," is complete in itself, and the words after the third subdivision of said paragraph, "all the foregoing and parts thereof, finished or partly finished, composed of metal, * *" bear no relation to the first clause.

*

(3) The first clause of said paragraph covers all merchandise commonly or commercially known as jewelry of whatever material composed.

(4) The rate of duty on jewelry and beaded articles being the same under the tariff acts of 1897 and 1909, it was not necessary to raise the question whether merchandise was beaded articles or jewelry, and, therefore, decisions affirming the collector's classification of necklaces as beaded articles under those acts, or holding them jewelry, are not of great value in arriving at a correct conclusion in similar cases under the tariff act of 1913.

United States General Appraisers, New York, July 15, 1915.

In the matter of protest 770290 of American Bead Co. against the assessment of duty by the collector of customs at the port of New York.

[Affirmed.]

Strauss & Hedges (J. L. Klingaman of counsel) for the importers.

Bert Hanson, Assistant Attorney General (Chas. D. Lawrence, special attorney), for the United States.

Before Board 1 (MCCLELLAND, SULLIVAN, and BROWN, General Appraisers). SULLIVAN, General Appraiser: The merchandise consists of neckaces composed of beads strung on cotton threads, some with and others without metal clasps. At the hearing, counsel for the protestant stated that the protest covered the following item numbers: 9275, 20430, 20431, 9416, 9415, 9417, 20434, 20432, 20442, 20353, 20441, 9141, 9390, 20222, 90140, 20218, 20217, 20220, 9142, 20223, 20319, 9423, 9422, 20275, 20271, 20270, 20273, 20277, 20286, 20288, 20352, 20443, 20445, and 9565. These necklaces range in price from 20 crowns per gross for the cheapest to 30 crowns per dozen for the most expensive, so that they are all valued at above 20 cents per dozen pieces.

The merchandise was assessed with duty as jewelry at 60 per cent ad valorem under paragraph 356 of the tariff act of 1913. Many claims are made in the protest, but the one chiefly relied upon is that it is dutiable under paragraph 333 as beaded articles at 50 per cent ad valorem, counsel stating at the trial and in his brief to this effect.