In this act it appears as a part of section 3, which is devoted to other kinds of iron than cast iron; but the immediate provisions surrounding this are devoted to cast-iron articles.

Section 8 of the same act, however, provides:

On hollow-ware and vessels of cast iron, not otherwise provided for, one cent and one-fourth per pound.

In the act of June 30, 1864, it is provided:

On hollow-ware, glazed or tinned, three and one-half cents per pound.

In this act it appears in the immediate group of cast-iron articles and in an extended provision devoted wholly to iron and steel products, the sole exception being that of tin plates.

The act of March 3, 1883, provided:

Hollow-ware, coated, glazed, or tinned, three cents per pound.

In this act it appeared with many enumerated kinds of metal, iron and steel.

Under this act the scope of the provision was contested. It was sought by importers to have classified thereunder for dutiable purposes certain blue and white kitchen utensils, consisting of pots, kettles, saucepans, coffeepots, and similar ware made of sheet steel and glazed or enameled. The Government contended that the early history and constant use of this provision by the courts indicated a congressional intent to confine the scope of the words "hollow ware" as appearing in the act without qualification to hollow ware of cast iron. On appeal to the United States Circuit Court, Southern District of New York, the case was disposed of by direction of the court as follows:

Upon examination of the prior acts I am satisfied that Congress was of the understanding that "hollow ware" meant vessels of this general kind, which we have here, made of cast iron. For the reason, therefore, that there seems to have been a congressional meaning given to the words "hollow ware" and embodied in statutes before the passage of the act of 1883, I assume that Congress intended to use the words with the same meaning in the later act that it did in the prior act. Verdict directed in favor of the defendant. Strausky v. Erhardt (52 Fed. Rep., 808).

Pending the decision in this case, which was had in November, 1892, the tariff act of October 1, 1890, became a law. The provision reappears in that act as paragraph 163, undoubtedly prompted by the then existing legislation. The paragraph was made to read:

163. Cast hollow-ware, coated, glazed, or tinned, three cents per pound.

It appears in the identical language in the tariff act of August 27, 1894, as paragraph 136, and in the tariff act of July 24, 1897, as paragraph 150.

Further contention was made as it appeared in the tariff act of 1897 that it included teapots of antique appearance made of cast iron with wrought-iron handles and expensive bronze covers. The Board of General Appraisers held, no doubt for the reason that they were not

entirely or substantially of cast iron, that the merchandise was not dutiable under the provisions of paragraph 150 as cast hollow ware, but as manufactures of iron. The board reviewed in that case the history of this legislation and the customs interpretation of many years in the following succinct language:

The term "hollow ware" has been construed by the Treasury Department, this board, and the courts to mean cast-iron kitchen ware. In T. D. 3669, published July 24, 1878, the department held that certain frying pans were dutiable as vessels of cast iron, there being no provision at the time for hollow ware. In T. D. 8527, published November 8, 1887, the department held that the term "hollow ware," which appeared for the first time, included only cast-iron kitchen utensils. In G. A. 105 (T. D. 10414) this board held to the same effect, and the same ruling was laid down in Strausky v. Erhardt (52 Fed. Rep., 808). In the act of 1890 the word "cast" was added so as to make the provision read "cast hollow ware," showing congressional confirmation of the rulings referred to. Fiske v. Henarie (142 U. S., 459), Sessions v. Romadka (145 U. S., 29). With these rulings, extending over a period of thirty years, before us, we must hold that the articles in question are not included within the term "cast hollow ware" as used in the tariff. There are further circumstances which militate against these pots and cause them, according to our view, to fall without the meaning of the term. Morimura Brothers, G. A 6722 (T. D. 28795).

There can be no reasonable question, therefore, that at the time of the enactment of the tariff act of 1909 the words "cast hollow ware," as they appear in the preceding tariff acts, had been given such a construction by the courts and customs officials as to have a well-settled meaning. In the tariff act of 1909, however, we find two provisions upon the subject. The one is in the exact language of the three previous tariff acts. It is the provision under which claim is made by the importers here. It is numbered and reads as follows:

149. Cast hollow ware, coated, glazed, or tinned, one and one-half cents per pound. The identical language in previous tariff acts having been given the well-settled construction that it did not extend to other than cast-iron ware, could not in any sense ordinarily be held in this tariff act to include such articles as are here imported admittedly made of spelter. The other provision in the act of 1909, which is noted and to which the importers point as an argument, is as follows:

158. Table, kitchen, and hospital utensils, or other similar hollow ware, of iron or steel, enameled or glazed with vitreous glasses, but not ornamented or decorated with lithographic or other printing, forty per centum ad valorem.

Reading paragraph 158, we find in its terms no language which enlarges the scope of paragraph 149 per se. The two paragraphs were enacted at the same time. Any enlargement Congress may have intended in the scope of paragraph 149 must be found in the language of paragraph 158. If paragraph 158 is the foundation of appellants' rights, claim should have been made thereunder. The fact that Congress reenacted paragraph 149 in exact terms and provided a new paragraph (158) leads to the inference that the latter

was intended to include a subject other than that covered by the former. Any analysis of the separate provisions is here unnecessary. Suffice it to say that each has a broad and distinct field of application other than is contained in the other. The merchandise, however, is by the terms of paragraph 158 excluded therefrom, nor is claim made thereunder. Consequently we can discover no aid for appellants by reason of the enactment of paragraph 158, either as the foundation of a substantive right or as a legislative interpretation. We are, therefore, of the opinion that upon this branch of the case the importers' contention is without substantial merit.

The second branch of the case concerns certain alleged Christmastree ornaments. The articles are in imitation of cherries, apples, and other fruits. They were assessed for dutiable purposes by the collector at the same port under the provisions of paragraph 438 of the tariff act of 1909 as artificial fruit. They are claimed to be dutiable as toys, and alleged to be used as Christmas-tree ornaments. Νο serious contention is made upon this branch of the case, and it is so clearly without merit that we give it no extended consideration.

No testimony was introduced concerning this merchandise or its uses, but it is manifest from the appearance thereof that it is equally suitable for millinery ornamentation as it is for the decoration of Christmas trees and can in no appreciable sense be considered to be intended as a plaything. Illfelder v. United States (1 Ct. Cust. Appls., 109; T. D. 31115); Carson, Pirie, Scott & Co. v. United States (2 Ct. Cust. Appls., 386; T. D. 32112).

Affirmed.

UNITED STATES v. WERTHEIMER & Co. (No. 599).1

BOARD'S RULING NOT TO BE DISTURBED ON DEFECTIVE PROOF.

The evidence necessary to fix the proper classification of these gloves would include proof of a variety of facts as to manufacture and trade usage. The record here is scanty, too scanty of evidence to warrant the Board's finding being disturbed.— United States v. Spielmann (1 Ct. Cust. Appls., 279; T. D. 31320); United States v. Perkins (ibid., 323; T. D. 31430); and Carson v. United States (2 Ct. Cust. Appls., -; T. D. 31656).

United States Court of Customs Appeals, January 12, 1912.

APPEAL from Board of United States General Appraisers, Abstract 24658 (T. D. 31236). [Affirmed.]

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

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

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

This appeal brings here for determination the question whether certain gloves imported at the port of New York, known in the trade

Reported in T. D. 32204 (22 Treas. Dec., 133).

as Paris points, are "stitched or embroidered, with more than three single strands or cords," as that term is used in paragraph 459 of the tariff act of 1909. The phrase occurs in identical language as it did in paragraph 445 of the tariff act of 1897. The question is one of importance, affecting alike great industries in this country and merchandise imported in very large quantities, both to meet an extensive popular consumption of every-day wear. No subject received greater attention and was the issue of more extended litigation under the tariff act of 1897. Notwithstanding voluminous records and earnest efforts of the courts and Board of General Appraisers, a satisfactory solution of the question was, at the enactment of the tariff act of 1909, not reached. These matters are attested in the opinion of the board in this case.

This record comes here exceedingly scant of facts. There is a sample of the imported merchandise, and the return of the collector thereupon that it was stitched with more than three single strands or cords. At the hearing before the board but a single witness was produced, and he upon the part of the importers. The Government, appellant here, introduced no testimony whatsoever. The appeal comes here upon that record. This court in previous almost identical cases has refused to disturb the findings of the Board of General Appraisers.

In United States v. Spielmann (1 Ct. Cust. Appls., 279; T. D. 31320) the record consisted of the testimony of one witness and the exhibits, and this court refused to disturb the findings of the Board of General Appraisers thereupon.

In United States v. Perkins (1 Ct. Cust. Appls., 323; T. D. 31430), wherein the sole evidence before the board was the official samples, the gloves themselves as imported, this court again refused to enter upon a decision of this very important subject upon such an incomplete record, and affirmed the findings of the board.

In Carson v. United States (2 Ct. Cust. Appls., 105; T. D. 31656) the same rule was applied by this court.

The determination of this question as a finality involves the determination of questions of fact and law. The decided cases make appa- . rent that entering into the determination of these questions of both fact and law there is pertinent much of trade understanding and conception, as well as elucidation as to the various methods of construction, not alone of the single class of gloves covered by any single importation, but involving various methods of construction adopted and in use by the trade. Any intelligible consideration of the subject, and any satisfactory conclusion the promulgation of which as a finality shall cover the vast importations of this class of merchandise, should of necessity have the benefit of this enlightenment.

Following numerous decisions of this court, therefore, we decline to reverse the decision of the Board of General Appraisers, and it is accordingly affirmed.

SHALLUS v. UNITED STATES (No. 603).1

QUESTION OF FACT, WHEN TO BE DETERMINED by Board.

The importation consisted of small pieces of gunny bagging packed in bales, and appropriate samples of the merchandise were exhibited. The proper classification of these goods could be ascertained without expert knowledge on an inspection of them; and the collector's classification should not be taken as conclusive. The goods were rags and as such entitled to free entry under the tariff act of 1897.— Krusi v. United States (1 Ct. Cust. Appls., 168; T. D. 31213); Knauth v. United States (ibid., 178; T. D. 31216); Train-Smith Co. v. United States (140 Fed. Rep., 113). United States Court of Customs Appeals, January 12, 1912. APPEAL from Board of United States General Appraisers, Abstract 24670(T. D. 31236). [Reversed.]

Curie, Smith & Marwell (W. Wickham Smith and Thomas M. Lane of counsel) for appellant.

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

Before MONTGOMERY, SMITH, BARBER, DE VRIES, and MARTIN, Judges. MONTGOMERY, Presiding Judge, delivered the opinion of the court: The merchandise in question in this case consists of pieces of old bagging assessed by the collector as waste not specially provided for at 10 per cent ad valorem under paragraph 463 of the tariffl act of 1897. It is claimed by the protestants to be free of duty under paragraph 648 of the same act as rags.

The Board of General Appraisers overruled the protests of the importers, and appeal is taken to this court.

The board, in deciding the case, said:

The protests were submitted simply upon certain official samples which were forwarded to the board. Many of these samples are so small as to indicate simply the nature of the material and throw little or no light upon the classification of the goods. There is a presumption in favor of the correctness of the classification as reported by the appraiser and made by the collector. No evidence is given by either of the importers that they ever made a personal examination of a single bale among the hundreds involved in these protests, and no testimony was offered in support of any one of the contentions made, outside of the samples themselves. The practice of the board has been not to reverse the classification of the collector in cases of this kind unless the importer supports his contentions by proper testimony. The board is not called on to exercise expert testimony in any case of this character.

This holding presents the principal question in the case, which is, May the importer rest his case upon the official samples, and does it become the duty of the board to determine, as a question of fact, whether protestants' claim is supported by the evidence afforded by these samples?

We think this question is concluded by the previous decisions of this court. It was said by the court in Krusi v. United States (1 Ct. Cust. Appls., 168; T. D. 31213):

When facts which determine the classification of imported merchandise are ascertainable and ascertained from an inspection of the goods themselves by the Board of General Appraisers, availing itself of the common knowledge and experience of which judicial notice may be taken, it can not be said that there is no evidence to support a finding of such facts.

1 Reported in T. D. 32205 (22 Treas. Dec., 134).