(10666.-G. A. 250.)

Albums-Correction of decision (Synopsis 10520, G. A. 170).

NEW YORK, January 14, 1891.

SIR Referring to our decision on albums, G. A. 170, we beg to say that one of the importers concerned, Mr. S. P. Twyeffort, thinks you have misconstrued the decision, as we intended it, and he asks us to explain one point, so that you may correct your liquidation of duty accordingly.

We meant to decide that the albums were not liable to the silk rate duty of 50 per cent., under T. I., 383, unless on one of the following conditions:

(1) The material of silk must be of chief value in its manufactured condition as it appears in the article; or else

(2) The material of silk must predominate in quantity so as to be the controlling material of manufacture.

If neither of these conditions exist the albums are not dutiable under T. I., 383.

Please compare our decision, G. A. 163, which is subject to correction only in the last clause, paper, in that particular case, not only predominating in chief value over silk, but also in quantity.

If you have assessed duties on the albums on other principles than the one stated above, you are authorized to correct the error.

Respectfully yours,

BOARD OF U. S. GENERAL APPRAISERS.

Hon. THOMAS V. COOPER,

Collector of Customs, Philadelphia, Pa.

(10667.-G. A. 251.)

Corset trimmings-Classification of.

NEW YORK, January 6, 1891.

SIR: Your letter of the 31st ultimo, in reply to a letter from this office of the 30th ultimo, in regard to certain "corset trimmings" composed chiefly of silk, has been received and duly considered.

The decision (G. A. 156) of the Board of General Appraisers, to which you invite attention, was overlooked when our letter of the 30th ultimo was addressed to you. However, the Board is now satisfied that its decision was erroneous and that your assessment of duty on the merchandise under appeal should have been sustained.

The goods are textile fabrics, and being embroidered by hand or machinery, they appear to be fully covered by the provisions of paragraph 373 of the tariff act of October 1, 1890. You are therefore requested to classify future importations of such merchandise in accordance with these views in order that the question may be again brought before the Board in case the importers shall avail themselves of the remedy provided for in section 14 of the act of June 10, 1890.

Before the U. S. General Appraisers at New York, January 19, 1891.

In the matter of the protests, 4278 a, 4279 a, and 4280 a, of R. F. Downing & Co. and others, against the assessment of duty by the collector at the port of New York on certain "cotton-wick," imported by them in the vessels named in the accompanying schedule.

Opinion by SOMERVILLE, General Appraiser.

The article involved in the several protests in these cases consists of braided cotton candle-wicking. The report of the appraiser states that the commercial designation of the merchandise is "candle-wicking." Evidence is before us that it is not the cotton braid of commerce, not being used or sold for the purpose to which cotton braids are devoted. It is used only as candle-wick, and is saturated with chemicals so as to cause the burning wick to become extinguished immediately when blown out, leaving no smoke, nor afterwards smouldering, as ordinary cotton braid does when not thus chemically prepared.

The merchandise was classified by the collector as cotton braid, under paragraph 354 of the tariff act of October 1, 1890, and was assessed accordingly, at the rate of 35 cents per pound.

The importer contends that the article shall be classified under paragraph 355 as a "manufacture of cotton not specially provided for in the act," and shall be assessed at 40 per cent. ad valorem.

This contention, we think, is well taken, as the merchandise is a manufacture of cotton, and is not, properly speaking, "cotton braid." Nor is it otherwise specially provided for in the tariff law, by name or other more minute description.

The collector's decision in each case is reversed, and he is authorized to reliquidate the entries accordingly.

(10669.-G. A. 253.)

Hemstitched handkerchiefs under act of October 1, 1890.

Before the U. S. General Appraisers at New York, January 20, 1891.

In the matter of the protest, 2769 b, of Burke, Fitzsimons, Hone & Co., against the assessment of duty by the collector of the port of Rochester, N. Y., on certain merchandise imported in the Ethiopia.

Opinion by HAM, General Appraiser.

The merchandise in this case consists, according to the report of the collector, of "plain hemstitched linen and cotton handkerchiefs, not embroidered.” They were classified under paragraph 373 of the act of October 1, 1890, and assessed for duty at 60 per cent. ad valorem. Appellants protest against such classification, claiming that they are liable to duty at 50 per cent. only, as "handkerchiefs," under paragraph 349 of said act.

The subject of the proper classification of hemstitched handkerchiefs is not free from difficulty. Handkerchiefs are enumerated in three paragraphs in the present tariff law: In paragraph 349, the ready-made clothing clause, composed of "cotton or other vegetable fiber," as handkerchiefs; in paragraph 413 of the silk schedule, as "handkerchiefs composed of silk;" and in paragraph 373 of the flax schedule, as "hemstitched handkerchiefs."

The context of the last-named enumeration is shown in the following excerpt: "Laces, edgings, embroideries, insertings, neck rufflings, ruchings, trimmings, tuckings, lace window-curtains, and other similar tamboured articles, and articles embroidered by hand or machinery, embroidered and hemstitched handkerchiefs, and articles made wholly or in part of lace, * ** all of the above-named articles composed of flax, jute, cotton, or other vegetable fiber," etc.

Appellants in their protest make the following contention:

Our interpretation of article 373, *** in which you class the goods in question, is that a handkerchief, to be dutiable under this section, must be both hemstitched and embroidered to correspond with the language therein contained. If this article was intended to apply to hemstitched handkerchiefs only, we think it would have been worded, "hemstitched or embroidered.”

On this point Endlich on the Interpretation of Statutes, p. 303, page 412, says:

To carry out the intention of the legislature, it is occasionally found necessary to read the conjunctions "or" and "and" one for the other. Indeed these words are said to be convertible into each other, as the sense of the enactment and the necessity of harmonizing its provisions may require. (State vs. Brandt, 41 Iowa, 593, and other cases.)

4

In the construction of the act of Congress of August 6, 1861, providing for the seizure and confiscation of property used in aid of the rebellion, and for its condemnation in the district or circuit courts of the United States having jurisdiction of the amount "or" in admiralty, it was held that "or" must be read "and." (Union Insurance Co. rs. United States, 6th Wallace, 759.)

If in the phrase "embroidered and hemstitched handkerchiefs" the word "or" be substituted for the word "and," it is relieved of all ambiguity; and this may be done, under the authority cited, if the sense of the enactment and the necessity of harmonizing its provisions require it.

In several instances in the act of October 1, 1890, similar phraseology to that under consideration is employed where the word "and" is used disjunctively. For example: In paragraph 402 this phrase occurs, "velvet and tapestry velvet carpets." In paragraph 405 this phrase, "wool, Dutch and two-ply ingrain carpets." In paragraph 413 this phrase, "laces and embroideries." In paragraph 363 this phrase,

"hemp and jute carpets and carpetings." In paragraph 216, "timber, hewn and sawed."

These cases are all analogous to the case at bar, and the case in paragraph 363, "hemp and jute carpets and carpetings," is exactly parallel therewith; and its construction is not doubtful. That is to say,

there is no question that carpets and carpetings composed wholly of "hemp," and carpets and carpetings composed wholly of "jute," are thereby respectively and separately provided for.

But there is other and more direct evidence in the act itself that the intention of Congress, in the phrase "embroidered and hemstitched handkerchiefs," was to employ the word "and" disjunctively, for in the proviso to 373 a qualification is made which applied to embroidered handkerchiefs, but does not apply to hemstitched handkerchiefs, as follows: "That * * * textile fabrics, when embroidered by hand or machinery, and whether specially or otherwise provided for in this act, shall not pay a less rate of duty than that fixed by the respective paragraphs and schedules of this act upon embroideries of the materials of which they are respectively composed."

This is a complete separation of the two members of the phrase "embroidered and hemstitched handkerchiefs," as complete as if the phrase were to be made to read, "embroidered handkerchiefs and hemstitched handkerchiefs," and the first member of it-"embroidered handkerchiefs"—is considered without any regard whatever to the last member of it "hemstitched handkerchiefs."

It is contended that the articles subject of protest are dutiable at 50 per cent. ad valorem, under paragraph 349, as “handkerchiefs" simply, on the ground that they are "not embroidered." But this contention lacks force, for several reasons. Paragraph 349 is the wearing-apparel clause of the cotton schedule, and handkerchiefs are not necessarily wearing apparel. Indeed, they are usually something else. One of the definitions of the word handkerchief is "a piece of cloth, usually silk or linen, carried about the person for the purpose of wiping the face or hands." Another definition is "a cloth to be worn about the neck, a neckerchief, a neckcloth." This latter definition applies to the handkerchief which is an article of wearing apparel, and it may well be that the intent of Congress was, in paragraph 349, to provide for such handkerchiefs as are used exclusively for wearing apparel. By reference to the conference report of the tariff act of 1890 (H. R. 9416) it will be seen that "hemmed handkerchiefs" were originally included in paragraph 349, but after deliberation the clause was stricken out.

It is contended that the striking out of the words "hemmed handkerchiefs" operates to enlarge the scope of paragraph 349, but we hold the contrary view to be more consonant to reason, namely, that its scope is thereby narrowed, because "hemmed handkerchiefs" is a more specific designation than "handkerchiefs." It may be held with confidence, however, that it is not in reason to be presumed that in the act of striking out of paragraph 349 the designation "hemmed handkerchiefs" the intention was to include therein or substitute therefor "hemstitched handkerchiefs." If such had been the legislative intent, the presumption is very strong that it would have been so expressed in words.

In previous tariff acts neither embroidered handkerchiefs nor hemstitched handkerchiefs were provided for eo nomine. In the act of 1874 "handkerchiefs" of linen were provided for, by name, in the hemp and flax schedule. In the act of 1883, "handkerchiefs" of linen were provided for, by name, in the hemp and flax schedule, and "hemmed handkerchiefs" were provided for, by name, in the laces and embroideries paragraph (325) of the cotton schedule. Under this provision for hemmed handkerchiefs, hemstitched handkerchiefs were also classified, it being held that a hemstitched handkerchief is merely an ornamentally hemmed handkerchief; in other words, that the hemstitch is an ornamental hem. This association in the tariff acts of hemmed and hemstitched handkerchiefs with embroideries and embroidered handkerchiefs shows the legislative intent, and constitutes an additional reason in support of the presumption that the striking