be treated alike. The Hauteville stone was before me in the Bockmann Case (C. C.) 154 Fed. 1000, and it struck me then that it was such a kind of limestone as ought to come under the marble exception, in paragraph 117 (Act July 24, 1897, c. 11, § 1, Schedule B, 30 Stat. 159 [U. S. Comp. St. 1901, p. 1636]) and be thrown over into the marble paragraph, 114. It was altogether too susceptible to a high polish and too advantageous in use as an interior decorative stone, too. granular and too crystalline, not to be segregated and separated from such stones as freestones, granite, sandstones, etc. It was not so very far from the line, I thought, but just far enough. The Board in the Bockmann Case laid stress upon its compactness and susceptibility of high polish, but to my mind its granular and crystalline formation rendered it susceptible to a high polish. The Circuit Court of Appeals, however (158 Fed. 807, 86 C. C. A. 67), differed with the Board and with me. It agreed that in common parlance any limestone susceptible of a high polish might be called marble, but it seemed to be of the opinion that Congress did not frame the tariff act on any such casual basis. The best authorities, the court says, "define marble as a limestone having a granular and crystalline structure. It is crystalline limestone." But the court says that by the weight of testimony the article in dispute was "not crystalline limestone at all." It therefore reached the conclusion that upon the facts of that case the importation was limestone, and not marble. The government went back to the Board, and made up some new cases on the same issue, which are now before me on appeal. It had a chance to show that the importations then put at issue were of such a character as to bring them within the definition given by the best authorities and adopted by the higher court. If it tried to do so, it certainly failed to convince the Board. The decision makes that point clear. It is therefore obvious that the government has had its day in court and lost. It is my imperative duty to accept the conclusions of fact found by the Board, and upon those conclusions I am equally bound by the law as laid down by the Circuit Court of Appeals. My hands and feet are tied, and with sad resignation and a deep fellow feeling of sympathy for the Board, its decision is affirmed. UNITED STATES v. G. SIEGLE CO. (Circuit Court, S. D. New York. November 13, 1909.) No. 5,310. "LAKES NOT SPECIALLY CUSTOMS DUTIES (§ 24*) — CLASSIFICATION - LAKES PROVIDED FOR"-"COLORS CONTAINING LEAD." Lakes containing lead are more specifically provided for as "colors containing lead," under Tariff Act July 24, 1897, c. 11, § 1, Schedule A, par. 54, 30 Stat. 154 (U. S. Comp. St. 1901, p. 1630), than as "lakes * * * not specially provided for," under paragraph 58, 30 Stat. 154 (U. S. Comp. St. 1901, p. 1630). [Ed. Note. For other cases, see Customs Duties, Dec. Dig. § 24.*] •For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes On Application for Review of a Decision by the Board of United States General Appraisers. Imports assessed with duty by the collector of customs at the port of New York under Tariff Act July 24, 1897, c. 11, § 1, Schedule A, par. 58, 30 Stat. 154 (U. S. Comp. St. 1901, p. 1630), were held by the Board of General Appraisers to be dutiable under paragraph 54, 30 Stat. 154 (U. S. Comp. St. 1901, p. 1630). The pertinent portions of these two paragraphs were respectively (1) “lakes * * * not specially provided for," and "colors * * * made of lead or containing lead." The Board's opinion reads in part as follows: It is shown that the lakes in question upon analyses were found to contain lead, and the question is therefore whether duty should not have been assessed at the rate of 5 cents per pound under paragraph 54. Manifestly paragraph 58 is the catch-all clause of the paint and color schedule, but it is to be noted that following the provision therein for colors, pigments, lakes, etc., are the words "not otherwise specially provided for in this act," while no such words of limitation are contained in paragraph 54. It was undoubtedly the congressional intent that only such colors and lakes as were not otherwise specially provided for in the paint schedule should be assessed with duty at the rate of 30 per cent. ad valorem under paragraph 58. "Colors" is a blanket term, and would include many things, among others being lakes. The term "lakes" covers a group or subdivision of colors, and either of these terms alone would include the merchandise under consideration, if they are not specially provided for as claimed under paragraph 54. We think, however, that the provision for "other colors * * * when not containing quicksilver but made of lead or containing lead," in paragraph 54, without any words of qualification or restriction, is a more specific provision than that contained in paragraph 58 for lakes "not otherwise specially provided for," and since these lakes are colors shown to contain lead, we sustain the claim that the merchandise is dutiable at the rate of 5 cents per pound under paragraph 54. In all other respects the protests are overruled, the decisions of the collector being modified accordingly. D. Frank Lloyd, Deputy Asst. Atty. Gen. (Charles D. Lawrence, of counsel), for the United States. Comstock & Washburn (Albert H. Washburn; of counsel), for importers. PLATT, District Judge. This appeal relates to the classification for duty of certain "bronze lakes" and "scarlet lakes." They were assessed for duty as "colors" at the rate of 30 per cent. ad valorem under paragraph 58, tariff act of 1897. Various alternative claims are set forth in the importers' protests, but the one upon which they rely principally is that made under paragraph 54 of said act. The Board sustained the protest under said paragraph 54. I agree entirely with the Board's reasoning, and think it unnecessary to add thereto. Decision affirmed. DAVID KAUFMAN & SONS CO. v. SMITH, Collector of Customs. CUSTOMS DUTIES (§ 13*)—IMPORTS FROM CANAL ZONE-DUTIABILITY. Importations into the United States from the Panama Canal Zone, since the cession of such territory to the United States, are dutiable. [Ed. Note.-For other cases, see Customs Duties, Dec. Dig. § 13.*] At Law. Action to recover customs duties. George Whitefield Betts, Jr., and Wallace, Butler & Brown, for importers. John B. Vreeland, U. S. Atty., for defendant. CROSS, District Judge. The above-entitled suit was instituted to recover back duties paid by the plaintiff to the defendant, collector of the port of Newark, N. J., which duties were exacted and paid under protest by the plaintiff in two several payments made in the months of October and November, 1906, upon certain old iron and machinery consigned to the plaintiff, and shipped and brought to the port of Newark from the port of Cristobal in the Panama Canal Zone. The plaintiff in and by its declaration, which contains two counts, claims that the property above referred to was not liable to the duties thus paid, because the same had not been imported into the United States from any foreign country, within the meaning of any valid statute or executive order of the United States, but, on the contrary, was merchandise which, under and by virtue of the provisions of the Constitution of the United States in that regard, was entitled to free entry in any part of the United States. The defendant demurred to each count of the declaration and assigned various grounds of demurrer, which, however, it will be unnecessary to consider at length, because, in view of the treaty between the republic of Panama and the United States ceding the Canal Zone, and of the various acts of Congress relating to said Zone, the principles laid down in Downes v. Bidwell, 182 U. S. 244, 21 Sup. Ct. 770, 45 L. Ed. 1088, are decisive of all the questions raised thereby. The legal status of the goods referred to in the declaration, coming as they did into the United States from the Canal Zone, was in no wise different from that of the goods which, in the case cited, were imported from Porto Rico. The demurrer is sustained. MORIMURA BROS. v. UNITED STATES. (Circuit Court, S. D. New York. November 15, 1909.) CUSTOMS DUTIES (§ 37*)—CLASSIFICATION-"TOYS"-"FANS OF ALL KINDS." The provision in Tariff Act July 24, 1897, c. 11, § 1, Schedule N, par. 427, 30 Stat. 191 (U. S. Comp. St. 1901, p. 1675) for "fans of all kinds," was, notwithstanding its broad language, not intended to include everyFor other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes thing which might be called a fan, and to an exceedingly limited extent used as a fan; and so-called cigar fans and firecracker fans, consisting of small folding fans closing into cases representing cigars, etc., are not dutiable under said provision, but under paragraph 418, 30 Stat. 191 (U. S. Comp. St. 1901, p. 1674), as "toys." [Ed. Note. For other cases, see Customs Duties, Dec. Dig. § 37.* For other definitions, see Words and Phrases, vol. 8, pp. 7036, 7818.] On Application for Review of a Decision by the Board of United States General Appraisers. The opinion filed by the Board of General Appraisers reads as follows: HAY, General Appraiser. The imported articles here in question were invoiced as fans, with different qualifying words. They are small folding fans closing into cases representing cigars or other fancy designs. Two of the protests in question were once before decided by this Board, and a motion for rehearing granted. These two were consolidated with the other protests covered by this decision, and testimony introduced at the same hearing applying to all of the protests. The articles were assessed under paragraph 427 of the tariff act of 1897, and it is claimed by the importers that they are properly dutiable under paragraph 418, 407, or 208, or section 6. The expression "fans of all kinds," used in paragraph 427, is comprehensive, and would seem to be broad enough to cover every variety and quality of fans, whether made of the cheapest paper or the most expensive lace and ivory, and whether flimsy or substantial. The evidence, we think, justifies the conclusion, and it is a matter of common knowledge, that the fan is an article that borders close upon a toy-at least it is frequently used as an ornament or plaything; and if a fan fashioned of ivory and lace, so delicate as to render it necessary to handle it with extreme care, and carried only by a lady when dressed for an evening entertainment, comes under the provision "fans of all kinds," then it is difficult to see why a flimsy, cheap fan, made for and used by children, does not also come under that provision. It is not for this Board or the courts to determine to what degree an article called a fan shall fulfill the requirements of a fan, in order to come within the purview of the comprehensive language of the law; for, if it fulfills those requirements to any degree, it certainly comes under the classification of "fans of all kinds." Downing v. United States (C. C.) 141 Fed. 490, T. D. 26,454, does not in our judgment decide any principle. It does no more than to pass upon the evidence which was before the court, and is authority only with reference to the articles which the court had under consideration. The merchandise under consideration in this case, we think, was properly classified by the collector, and the protests are therefore overruled. Kammerlohr & Duffy (Joseph G. Kammerlohr, of counsel), for im porters. D. Frank Lloyd, Deputy Asst. Atty. Gen. (William A. Robertson, of counsel), for the United States. PLATT, District Judge. The imported articles in dispute were invoiced as fans, with different qualifying words. They are small folding fans closing into cases representing cigars or other fancy designs. They were assessed by the collector at 50 per cent. ad valorem under the provision in paragraph 427, tariff act of 1897, for "fans of all kinds." The importers claim that the are properly dutiable under paragraph 418 as toys, etc., or under paragraph 407 as manufactures *For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes of paper, or under 208 as manufactures of wood, etc., or section 6 as unenumerated manufactured articles. The Board of Appraisers affirmed the assessment of duty as made by the collector. These so-called cigar fans and firecracker fans would, of course, go under paragraph 418, except for the words therein "not otherwise. provided for." The Board thought they were aptly described by paragraph 427. The congressional mind was evidently in a very expansive condition at the moment of enacting that paragraph (427). "All kinds" is certainly broad; and yet it hardly seems as if Congress could have meant to include everything which might in some way come to be called a fan, and might, to an exceedingly limited extent, be used as a fan is commonly used. Usages of trade probably put them nowhere. In fact, I think they were unknown when the act was passed. But, if what the trade thinks could have any weight, it would take them to be toys rather than fans. I do not believe it possible that, if the merchandise in dispute had been held up before the congressional eye at the moment the act was being passed, it would have taken an instant for the congressional mind to have decided not to include it in the language "fans of all kinds." It would have been obvious, it seems to me, to the congressional mind that they were toys, and nothing in the world but toys. The Board thinks that Downing v. United States (C. C.) 141 Fed. 490, T. D. 26,454, lays down no general principle. I am not sure what the Board means by that; but I am certain that the principles there enunciated are general enough to cover such merchandise as that now in dispute. The decision of the Board of General Appraisers is reversed. BOGLE et al. v. UNITED STATES. (Circuit Court, S. D. New York. November 13, 1909.) No. 5,070. 1. CUSTOMS DUTIES (§ 30*)-CLASSIFICATION-MARMALADE—“JELLY"-"SWEETMEATS AND PRESERVED FRUITS." Marmalade is dutiable under Tariff Act July 24, 1897, c. 11, § 1, Schedule G, par. 263, 30 Stat. 171 (U. S. Comp. St. 1901, p. 1651), relating to "sweetmeats and preserved fruits," rather than as "jelly," under the same paragraph. [Ed. Note:-For other cases, see Customs Duties, Cent. Dig. § 75; Dec. Dig. § 30.*] 2. CUSTOMS DUTIES (§ 30*)-BERRY JAMS-"JELLY"-"EDIBLE FRUITS PREPARED." Berry jams are dutiable under Tariff Act July 24, 1897, c. 11, § 1, Schedule G, par. 263, 30 Stat. 171 (U. S. Comp. St. 1901, p. 1651), as sweetmeats or preserved fruits, rather than as "jelly" under the same paragraph, or as "edible fruits prepared," under paragraph 262, 30 Stat. 171 (U. S. Comp. St. 1901, p. 1651). [Ed. Note.-For other cases, see Customs Duties, Cent. Dig. § 75; Dec. Dig. § 30.*] •For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes |