findings in another case, G. A. 7078 (T. D. 30826), and of necessity the evidence supporting the same. The testimony in that case is not made a part of the return in this case, nor was it upon motion of either party or order of the general appraiser made a part of the record. The Assistant Attorney General in his brief, and in support of his contentions, cites as to the necessity and propriety of the practice followed by the board, and in support of its findings, excerpts from an opinion written by Judge Somerville in G. A. 5437 (T. D. 24715), as follows: In this case a request has been made by the counsel for the Government that the testimony taken by the board in the Leerburger case above cited be introduced as evidence in this case, which request is granted in accordance with a well-settled practice of the board. Suits to recover back duties alleged to have been illegally exacted usually involve, as one of the necessary issues, the proper classification of imported merchandise, so that, in a certain sense, such suits are proceedings de re, rather than inter partes. In this view of the matter, the board has found it expedient and conducive to justice to allow, on the motion of either party, the introduction of evidence taken in other cases whenever it has been shown that the merchandise in question was of the same kind. It is not unusual for the board to take the testimony of 20 or 30 witnesses as to the character and uses of merchandise; and if this testimony could not be applied, in the discretion of the board, to other like goods embraced in different importations, great embarrassment and delay might ensue. It could scarcely have been the intention of Congress to oblige the board to take such voluminous evidence de novo in every case arising before it, similar cases often running into the thousands. One of the objects of the customs administrative act was to simplify the collection of the revenue and afford importers a speedy determination of controversies relating to it, and to produce uniform classification of imports. Section 15 of said act has, therefore, carefully provided that "all the evidence taken by and before said appraisers shall be competent evidence" on appeal to the Circuit Court. The decisions of the courts have also established the soundness of the board's practice in this respect. In Klipstein's case on zinc dust, G. A. 4744 (T. D. 22415), the board expressly based its finding in part on the evidence taken in a former case, and its decision was affirmed by both the Circuit Court and Circuit Court of Appeals; and on more than one occasion judges have openly declared that they were guided to some extent in deciding customs cases before them by their knowledge of testimony taken in other cases. Field v. United States (90 Fed. Rep., 412, 33 C. C. A., 138, 139); Sullivan v. Robertson (37 Fed. Rep., 778, 779). This statement by Judge Somerville, which very succinctly and clearly justifies the procedure upon behalf of the Board of General Appraisers therein considered, is not precisely applicable to these cases on appeal to this court. Any knowledge of the enormous number of protests necessary of decision by the Board of General Appraisers and the character of those protests certainly warrants the summary procedure adopted by the board. Without it their already onerous labors would not only be greatly multiplied, but would be beyond the possibility of performance by any similar number of officials. The statutory requirements defining the duties of this court, however, when taken into consideration with the condition surrounding the procedure in these cases, does not enable this court from this record to perform those duties incumbent upon it by the law. By the organic act creating this court we are to review not alone the law but the facts presented upon appeal here when the findings of the board are made an issue. In this case, as shown by the decision of the board, they reached their conclusion upon authority of G. A. 7078 (T. D. 30826). This resulted, as indicated by the board in its decision, that though the testimony introduced in this record might tend to establish a conclusion contrary to that reached by the board in the previous case, nevertheless, the board did not consider this testimony sufficient to outweigh its findings in another case, which findings were, of course, reached by virtue of the testimony in the other case. The very course of the board indicates, as is shown by this record, that the testimony in this record might prompt upon behalf of the board itself another conclusion than that reached by it, were it not strengthened by testimony in the other case which it had previously heard, considered, and decided. In order to enable this court, however, to review that finding of fact by the board which is made an issue upon this appeal it is essential that the court should have before it all the testimony which influenced the board's conclusion and ultimate finding of fact before this court can fairly or justly review that finding. That testimony is not a part of this record, and so far as this record speaks there is before us that testimony alone which the board in its opinion indicates is contrary to its conclusion, and which it, therefore, impliedly finds sustains a contrary finding. That being the only testimony in the case before this court we must measure the findings of the board by the testimony before us, which under the circumstances of this record can lead to no other possible conclusion than that they are unsupported by the evidence in the record. It is obvious that if this court holds presumptively true and conclusive a finding of the Board of General Appraisers which is supported merely by citation of other findings in another case that such practice would not be a review by this court of all the testimony supporting the board's conclusion, but would be accepting and making final by this court a prior decision of the Board of General Appraisers from which no appeal had ever been taken and the testimony supporting which is not before the court. This brings us to a consideration of the cases cited in the opinion of Judge Somerville. It is stated in G. A. 4744 (T. D. 22415), the United States Circuit Court for the Southern District of New York and the United States Circuit Court of Appeals for the Second Circuit approved that course upon the part of the board. What the courts did in that case is shown by the decision of Judge Somerville not to have been done in this case. In that case it is stated in the opinion of Judge Somerville, in G. A. 4744 (T. D. 22415), as follows: We may add that in the trial of these cases all the testimony admitted in the Circuit Court or Circuit Court of Appeals in the Roessler case, supra, was received by the board as evidence, and some additional testimony was taken, both by the Government and the importers. So that there was in that case the whole record upon which the board's previous decision was rendered for review by the Circuit Court and Circuit Court of Appeals. As to advertance by the court in the other cases cited by the learned judge, they were cases which had come under observation of the appellate court itself, had been reviewed by it, and were, therefore, decisions in which the records. themselves were before that court for examination in conjunction with the decision rendered therein as explanatory thereof should the court so desire. But in these cases there is not before this court the testimony which controlled the Board of General Appraisers in its decision. The board in the course of its experiences in the trial of these numerous cases has recognized the serious character of this situation, and by Rule XXXIV, which it was expressly empowered to enact by Congress, they put in concrete form a method of procedure which would seem to apply fairly and justly to all parties concerned and meet the requirements of the situation. That rule, in a word, provides that records in previous cases can upon motion of either party or the general appraiser be made a part of the record, but that there shall be the right of cross-examination of the witnesses. Such a rule makes for the early determination of customs cases, and affords all parties concerned a fair opportunity to be heard. Whilst we are not here deciding that the board may not rely upon its findings in other cases in the course of its necessarily summary determinations, the very organic act of this court compels us to the conclusion that, when a review of the finding of facts is here invoked, this court is unable to do so unless at least there is incorporated within the return of the board, and made a part of the record in this court, all the testimony and evidence considered and given any weight by the board in making that finding. Under the circumstances we have no other recourse than to reverse the cases and remand them for a new trial. Accordingly the decision of the board is reversed, and so remanded. GERMANIA IMPORTING CO. . UNITED STATES (No. 520).1 1. THE MAKING OF PAPER. To constitute a material paper, it is not necessary that the machine used in its manufacture should be known as a paper-making machine, nor that the material should contain glue, alum, and clay; the product determines its classification. 2. WRAPPING PAPER. Material having the ordinary thickness of wrapping paper, with the appearance of wrapping paper and used as such, must be deemed not wood pulp but wrapping paper, and was dutiable under paragraph 402, tariff act of 1897, as paper not specially provided for. United States Court of Customs Appeals, May 8, 1911. APPEAL from Board of United States General Appraisers, Abstract 24059 (T. D. 30991). [Affirmed.] John Giblon Duffy (Joseph G. Kammerlohr of counsel) for appellant. D. Frank Lloyd, Assistant Attorney General (Martin T. Baldwin 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 issue in this case was invoiced as "pack cellulose." Cellulose in the German language means wood pulp. It was classified under paragraph 402 of the act of July 24, 1897, as paper not specially provided for at 25 per cent ad valorem, and is claimed by appellants to be unbleached chemical wood pulp and dutiable under paragraph 393 of the same act at one-sixth of 1 cent per pound. The sole question in the case is whether the article is paper or wood pulp. The material is of the ordinary thickness of wrapping paper, and presents a perfectly smooth surface on one side and has the appearance of wrapping paper. The evidence shows that it is used as such. In Wagner's Chemical Technology paper is defined to be A thin felt of vegetable fibers, mechanically and chemically clarified, crushed, and torn into a pulp suspended in water. This pulp is spread equally in thin layers, drained, pressed, and dried into the compact substance we call paper. This article would appear to answer this description. The testimony of numerous witnesses on behalf of the Government shows that the article is known as paper and sold as paper. The evidence on the part of the importer does not materially differ from that of the Government's witnesses, but the strength of the importer rests in the claim that this can not be called paper, first, because it is not made in a paper-making machine, and, secondly, because it does not 1 Reported in T. D. 31595 (20 Treas. Dec., 1019). contain glue, alum, and clay. A number of witnesses, however, were called by the Government who testified that the presence of these ingredients is not necessary, and indeed it would seem to be demonstrated by this sample that their presence is not necessary to make paper. The sample itself is enough to demonstrate that it answers all known definitions of paper as understood by the average person. The sample is firm, well adapted to the purpose of wrapping paper, and we have no doubt that it was so handled and sold by the importers. George Staber, a member of the importing company, testified: Q. In the course of the last two years have you ever had any customers come in and ask you for any samples of wrapping paper? A. Yes; I suppose it happens every day. Q. Did you ever show them this article along with other samples?-A. I show them a lot of things. Q. Have you ever when they asked for wrapping paper showed them this material along with others?-A. No; I don't know; I can't say I have. Q. You probably have, haven't you?-A. Maybe. The witness, Hans Bayer, who was the manufacturer of this paper, was asked on cross-examination: Q. Do you know by what process the smooth, shiny surface on one side of the merchandise is produced?—A. Yes; by a dry cylinder with very smooth surface. Q. If so, describe the process.-A. When damp cellulose material is pressed onto the polished surface of the dry cylinder for the purpose of drying, the one side becomes smooth, the other side remaining rough. Q. What is the purpose of giving the merchandise this smooth surface?-A. Because it pleases the eye. * * * * * Q. For what use is this imported merchandise made?-A. This produce having not yet undergone an improving process, can therefore be used in the manufacture of paper and as wrapping paper. The ordinary dry commercial wood pulp is made by a machine similar to that which produces this except that both cylinders are felted, the purpose being to eliminate the water from the material in order to save freight in shipping. Obviously, the thicker the product can be left and this object obtained the greater the economy in production. The practice as to this material, however, is quite different. It is given a smooth surface on one side, is pressed to a thickness which makes it available for use as paper, and it is obvious that except in rare cases it would not be used for any other purpose than as paper, and the testimony convinces us of this fact. But it is said that this is not paper, for the reason that it is not made in a paper-making machine. Originally paper was made by hand process. That some particular machine may make paper by a somewhat different process does not demonstrate that the product now before us for consideration is not paper. |