the ordinary course of business in the selling of the goods; the descriptions therein made, in other words, are the basis of its purchases, sales, and profits. It bears internal evidence, not alone for these reasons, but by reason of the complete and accurate description of the imported articles that a close examination of each was made and an accurate description there registered. The cost prices are in letters, the sale prices in figures. It is such a document as would furnish upon cross-examination abundant evidence to test the correctness of the witness's testimony by comparing the cost prices upon the sale list with the cost prices upon the invoices and other corresponding descriptions of the merchandise. It is admitted that the goods have gone into consumption. The integrity of the witness is not questioned by Government counsel or the board. There is no finding by the Board of General Appraisers that the testimony of the witness did not impress the board or was not truthful.

The decision of the board is rested expressly upon the proposition that in such cases it is the duty of the importing firm to produce samples in court corroborative of their testimony, and that only this method will avoid against fraud by unscrupulous importers. We think this holding error. It reads into the law a condition precedent which is not only unwarranted by the law, but which imposes a condition upon importers which may prove absolutely destructive of business. The question sought to be established by the importing firm is one surrounded by the statutes with no other limitations than the proof of any ordinary fact at issue. In many respects it is not dissimilar to the case of Bradley Martin v. United States (1 Ct. Cust. Appls., 134; T. D. 31185), decided by this court, wherein we said:

On the other hand, a witness is presumably truthful, and, if upon the uncontradicted external facts, themselves not unreasonable or incompatible with strict honesty of conduct, the only deduction which is consonant with such presumption is in favor of the person arriving, it becomes the duty of the courts to sustain his statement rather than to discredit it.

More properly in point is the decision of United States v. Hermann (154 Fed. Rep., 196), wherein the Circuit Court of Appeals, Second Circuit, in a similar case said:

Actual samples were not produced, and this evidence was based on the recollection of the witnesses as to the character of the goods represented by the invoice description of the various items, which had been imported two years or more previously. The Government urged that, in view of the failure of the importers to produce samples of the goods and the fact that the testimony of the importers was based on an inspection of the invoices, there was no competent evidence to sustain the conclusion of the Circuit Court.

The appellate court affirmed the decision of the Circuit Court without opinion over the contention of the Government in that case.

As no exceptional statutory requirements have been prescribed by the Congress in such cases as these, we must assume that it was not the intention of the legislative body to do so, and that the prescription of such a requirement is without warrant of law. Indeed, we

are unable to follow the principle to the conclusion that such a rule is necessary to obviate fraud upon the part of unscrupulous importers. We think such a rule would add no additional safeguard to the Treasury.

If the statutory or prescribed evidence necessary to establish the importer's case was that samples of the imported merchandise be produced, it would be far less difficult for the importer to produce at the hearing from his stock of merchandise or from samples held for that very purpose, samples fitting the case and testify that they were representative of the importation. The facility of that method would be so much easier of accomplishment, and the method and result so much more difficult of successful contravention on behalf of the Government than was the case here presented, that we are inclined to believe that it would open wider the door to fraud than is here presented. In this case there was not only the uncontradicted testimony of the witness who purchased the goods, but there is tangible evidence in the form of a written memorandum made at the time which contains in connection with the parol evidence sufficient elements of its integrity that it would be easy to test the same by the invoices and other records in the particular case. The Government tacitly accepted the authenticity of these by not opposing their introduction and not cross-examining the witness. The board likewise does not question the verity of either.

We are of the opinion that upon the unquestioned proof made the importer was entitled to a decision.

Reversed.

GODILLOT & Co. v. UNITED STATES (No. 680).1

PICKLED CAPERS.

There is no limitation on the word "pickles" as used in paragraph 253, tariff act of 1909, and pickled capers are dutiable under it. In the presence of clear and explicit enactment, canons of construction have no application-Microutsicos v. United States (T. D. 32078).

United States Court of Customs Appeals, January 11, 1912. APPEAL from Board of United States General Appraisers, G. A. 7207 (T. D. 31496). [Affirmed.]

Comstock & Washburn (Albert H. Washburn and Geo. J. Puckhafer of counsel) for appellants.

Wm. L. Wemple, Assistant Attorney General (Wm. K. Payne, Deputy Assistant Attorney General, on the brief), for the United States.

Before MONTGOMERY, SMITH, BARBER, DE VRIES, and MARTIN, Judges DE VRIES, Judge, delivered the opinion of the court:

This appeal brings here for decision the dutiable classification of "capers" under the tariff act of 1909. The case is stated by the board in the following language:

The Court of Customs Appeals, in passing upon the classification of capers under the act of 1897 (Pierce v. United States, T. D. 31215), held that they were not

1 Reported in T. D. 32168 (22 Treas. Dec., 68).

vegetables, and therefore not embraced within the class of pickles provided for in paragraph 241. The court observed:

In accordance with all the lexicographic definitions they are, in fact, pickles, although they are excluded from those pickles provided for in paragraph 241 by the character of the pickles therein provided for. Accordingly this court is of the opinion that the merchandise is an article wholly or in part manufactured, and dutiable, as claimed by the appellant, as an unenumerated article in whole or in part manufactured, under the provisions of section 6 of the tariff act of 1897.

We are of the opinion that the provision for pickles in paragraph 253 of the new act is more general in its application than the provision in paragraph 241 of the act of 1897. It will be observed that the term "pickles" in paragraph 253 is unlimited; it is broad enough, we think, to cover all kinds of pickles, whether vegetables within the meaning of the tariff act or whether vegetable substances which are used for pickles.

The decision of the board is in precise accord with the very recent decision of this court. In Microutsicos v. United States (2 Ct. Cust. Appls., 342; T. D. 32078) this court, in speaking of the use of the word "pickles" in the language of the tariff act of 1909, and comparing the same with the use of that word in the act of 1897, observed:

It will be observed that the changed language of the act of 1909 in relation to this subject is something more than a mere rearrangement of words in the interest of order or form of expression. To the contrary, the change is material and goes to the substance of the classification. Whereas under the act of 1897, as well as the preceding ones, pickles had been directly classified as a kind or product of vegetables, now, after a period of litigation concerning the few kinds of nonvegetable pickles, the controlling enactment is changed so as to remove pickles from the vegetables paragraph and make them a class of themselves. This seems to express a legislative intent to use the word in the sense of its common acceptation. As stated in the above definition, pickles are generally composed of vegetables, but in a few instances might be nuts or like products. In this view the amended classification would make the preparation, characteristics, and use of the articles the determinative factors as to whether they were pickles, and would not arbitrarily limit the class to vegetable products only. It is well known that the word pickles in its ordinary meaning includes some few nuts and like articles which lend themselves readily to such preparation and use.

The contention of the importer is based upon the doctrine of United States v. Beierle (1 Ct. Cust. Appls., 457; T. D. 31506). Essentially, the conclusion is deduced from the legislative use of the words, "pickles," "vegetables," etc., in the various tariff acts preceding the existing law. That is a rule of construction adopted by the court in a case where, by the relation of the various provisions of the tariff acts in pari materia, it was deemed applicable. The changed provisions, however, of the tariff act of 1909 relative to this subject matter present a case of legislative expression that strongly and, as we have held, conclusively negatives the construction invoked. In the presence of clear and explicit enactment canons of construction have no application. At most a rule based upon inferential construction would not be held to obtain against the plain import of the language of the legislature, be that intent gathered from express words or correlated language.

Affirmed.

SCHRADER & EHLERS v. UNITED STATES Nos. 686 and 718).1

FOUNTAIN-PEN BARREL NOT A PENHOlder.

There is no question of commercial designation, and "penholder" as employed in the statute can not reasonably be held to include the rubber article of the impor tation. The language of paragraph 187, tariff act of 1909, clearly contemplates that fountain pens for tariff purposes should be distinguished as they are in fact and in common understanding from the ordinary penholder, and should be subject to a different rate of duty. The importations were dutiable as manufactures of hard rubber under paragraphs 450, tariff act of 1897, and 464, tariff act of 1909, respectively.

United States Court of Customs Appeals, January 11, 1912.

APPEAL from Board of United States General Appraisers, Abstract 25431 (T. D. 31543). [Affirmed.]

Curie, Smith & Maxwell (John K. Maxwell, W. Wickham Smith, and Thomas M. Lane of counsel) for appellants.

Wm. L. Wemple, Assistant Attorney General (Charles D. Laurence on the brief), for the United States.

Before MONTGOMERY, SMITH, BARBER, DE VRIES, and MARTIN, Judges. BARBER, Judge, delivered the opinion of the court:

These two cases, one of which is an appeal from the Circuit Court for the Southern District of New York and the other an appeal from the Board of General Appraisers, involve the same questions.

The importation, the dutiable character of which is reviewed here upon the appeal from the judgment of the Circuit Court, was made under the tariff act of 1897, while that involved in the appeal from the judgment of the board was made under the act of 1909.

The merchandise under consideration is rubber holders for fountain pens composed of the ordinary separable rubber barrel, one part of which screws into the other, with a reservoir for holding ink therein, a feed barrel for conducting the ink to the pen, and a cap to cover the pen when not in use. In other words, it is an incomplete fountain pen, and all that is required to complete it ready for use is to put in the ink and put in place the pen.

In each case the importation was assessed as a manufacture of "hard rubber" under paragraph 450 and paragraph 464 of the respective acts. The importers claimed it to be dutiable under paragraph 187 of the act of 1897 and under paragraph 187 of the act of 1909, which are, respectively, as follows:

1897.-187. Penholder tips, penholders or parts thereof, and gold pens, twenty-five per centum ad valorem.

1909.-187. Penholder tips, penholders and parts thereof, five cents per gross and twenty-five per centum ad valorem; gold pens, twenty-five per centum ad valorem; fountain pens, stylographic pens, thirty per centum ad valorem; combination penholders, comprising penholder, pencil, rubber eraser, automatic stamp, or other attachment, forty per centum ad valorem: Provided, That pens and penholders shall be assessed for duty separately.

1 Reported in T. D. 32169 (22 Treas. Dec., 70). ·

No question of commercial designation is made in either case, but it is claimed that under the provisions of both tariff acts the importations are penholders within the ordinary meaning of the paragraph cited.

The meaning of the word "penholder" is not difficult of ascertainment or understanding. In the Century Dictionary it is defined as follows: A holder for pens or pen points. It consists of a handle or stock with a device for retaining the pens, usually a socket of metal.

Other lexicographers do not materially vary this definition.

In none of the dictionaries is it suggested that a penholder contains a reservoir or cavity for the holding of ink fitted with a device for furnishing a continuous supply of ink to the point of the pen. In this respect and also in respect of the provision made for protecting the point of the pen when not in use, namely, the cap, the importations manifestly differ from the penholder as that word is used in ordinary parlance. We do not think the word "penholder" as used in the statutes fairly includes the merchandise in question. We think that the language of paragraph 187 of the act of 1909 clearly contemplates that fountain pens for tariff purposes should be distinguishable, as they are in fact and in ordinary understanding, from the ordinary penholder and subject to a different rate of duty. Unless such construction be given to paragraph 187 we are unable to see how force and effect could be given to the provisions therein relating to fountain pens. It appearing that the merchandise is made of hard rubber it follows that the same was dutiable as assessed in each case.

The result is that the judgment of the Circuit Court in the one case and that of the Board of General Appraisers in the other is affirmed.

UNITED STATES v. WAKEM & MCLAUGHLIN (No. 688).1

"GLASS ROSETTES"—ARTICLES OF GLASS, Colored.

The goods in controversy are small hemispherical glass insulators, to the glass of which in a melted state an amber color has been given by mixing appropriate coloring matter. From its terms and its legislative history, paragraph 98, tariff act of 1909, must be taken to cover all articles of colored glass not otherwise specifically provided for, and the colored glass insulators here are dutiable as assessed under that paragraph. United States Court of Customs Appeals, January 11, 1912.

APPEAL from Board of United States General Appraisers, G. A. 7220 (T. D. 31586). [Reversed.]

Wm. K. Payne, Deputy Assistant Attorney General (Chas. Duane Baker on the brief), for the United States.

Lester C. Childs for appellees.

Before MONTGOMERY, SMITH, BARBER, DE VRIES, and MARTIN, Judges.

SMITH, Judge, delivered the opinion of the court:

This case involves the classification of so-called "glass rosettes," which were assessed for duty by the collector of customs at the port

1 Reported in T. D. 32170 (22 Treas. Dec., 71).