other paragraphs which make it manifest that the article, stripped of that which is incidental and not the article as an entirety, shall be taken into account in finding chief value.

The decision of the Board of General Appraisers is affirmed.

(T. D. 33522.)

Medicinal preparation.

LEHN & FINK v. UNITED STATES (No. 1093).

SIRUP OF RHAMNUS, ETC.

The goods in controversy are not natural drugs such as those that are enumerated in paragraph 20, tariff act of 1909, but are medicines artificially produced and ready for use. They are medicinal preparations within the intention of paragraph 65 of that act and are dutiable thereunder.

United States Court of Customs Appeals, May 26, 1913.

APPEAL from Board of United States General Appraisers, G. A. 7421 (T. D. 33118). [Affirmed.]

Walden & Webster for appellants.

William L. Wemple, Assistant Attorney General (Leland N. Wood, assistant attor ney, on the brief), for the United States.

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

Sirup of rhamnus, extract of gentian, and extract of taraxacum, imported at the port of New York, were classified by the collector of customs as medicinal preparations and assessed for duty at 25 per cent ad valorem under that part of paragraph 65 of the tariff act of 1909 which reads as follows:

65. *

* *

All other medicinal preparations not specially provided for in this section, twenty-five per centum ad valorem:

*

The classification and assessment of duty by the collector were protested on several grounds, but on the hearing before the board the importers pinned their faith to the claim that the goods imported were natural uncompounded drugs, dutiable at one-fourth of 1 cent per pound in addition to 10 per cent ad valorem under the provisions of paragraph 20, which reads as follows:

20. Drugs, such as barks, beans, berries, balsams, buds, bulbs, bulbous roots, excrescences, fruits, flowers, dried fibers, dried insects, grains, gums and gum resin, herbs, leaves, lichens, mosses, nuts, nutgalls, roots, stems, spices, vegetables, seeds (aromatic, not garden seeds), seeds of morbid growth, weeds, and woods used expressly for dyeing or tanning; any of the foregoing which are natural and uncompounded drugs and not edible, and not specially provided for in this section, but which are advanced in value or condition by any process or treatment whatever beyond that essential to the proper packing of the drugs and the prevention of decay or deterioration pending manufacture, one-fourth of one cent per pound, and in addition thereto ten per centum ad valorem: Provided, That no article containing alcohol, or in the preparation of which alcohol is used, shall be classified for duty under this paragraph.

The Board of General Appraisers overruled the protest and the importers appealed.

It appears from the record that the sirup of rhamnus is produced by expressing the fresh, ripe berries of the plant commonly known as buckthorn and mixing with the juice thus produced a certain percentage of sugar. The extract of gentian, as appears from the testimony of one of the witnesses, is a dry powder, made "by extracting the gentian root with water and evaporating the solution to dryness and powdering it." The description of the process of manufacture is not very elaborate, but we think it goes far enough to justify the assumption that by boiling or soaking gentian root its desirable medicinal principles are withdrawn or extracted in solution from the root and then secured as a solid by evaporating the water in which they were dissolved. The extract of taraxacum is a dry powder obtained by evaporating the juices expressed from the fresh roots of the plant commonly called dandelion. No alcohol is used in the preparation of the sirup or extracts, and it is undisputed that all three products when prepared as indicated and in the form imported are prescribed by physicians and are ready for administration to patients as medicines. The importer argues that the goods are natural uncompounded drugs advanced in value, and that therefore they are dutiable at one-fourth of 1 cent per pound and 10 per cent ad valorem, as prescribed by paragraph 20.

The trouble with this contention, as we see it, is that the premise laid is not justified by the facts of the case or the wording of the statute. In our opinion, paragraph 20 is limited by its terms to such natural uncompounded drugs as inedible barks, beans, berries, roots, and so forth, and does not extend to infusions, decoctions, or extracts made from such substances. In the process of manufacture the physical properties and distinguishing characteristics of the roots and berries from which the infusions, decoctions, and extracts are made were lost so completely that in no sense could the latter be properly called "drugs, such as barks, beans, berries, * * roots," and so forth. Paragraph 20 does provide for certain enumerated drugs "advanced in value or condition by any process or treatment whatever." Nevertheless the limitation of the paragraph to natural drugs makes it clear, we think, that there was no intention to extend its provisions to drugs artificially produced or to manufactures of such natural drugs. This interpretation makes the paragraph entirely consistent with other related parts of the law and avoids the necessity of considering as surplusage the provision for "extract of nutgalls, aqueous," a product which is specially provided for in paragraph 22 at the same rate of duty as that prescribed for "nutgalls" in paragraph 20.

The goods in controversy are, in our opinion, not natural drugs, such as those enumerated in paragraph 20, but medicines artificially produced and ready for use. They are therefore medicinal preparations within the intention of paragraph 65 and dutiable as assessed. The decision of the Board of General Appraisers is affirmed.

(T. D. 33523.)

Fire sand.

HENDERSON & HALL v. UNITED STATES (No. 1096).

MIXTURE OF QUARTZ, COKE, SALT, AND SAWDUST.

The merchandise here is made by combining approximately 60 parts of crushed quartz with 30 parts of coke, 1 part of salt, and 10 parts of sawdust. The term "manufactured sand," paragraph 683, tariff act of 1909, relates to material composed of common or crude sand, and can not be taken to include this merchandise.— Myers v. United States (1 Ct. Cust. Appls., 506; T. D. 31531).

United States Court of Customs Appeals, May 26, 1913.

APPEAL from Board of United States General Appraisers, G. A. 7429 (T. D. 33189). [Affirmed.]

Curie, Smith & Maxwell (Thomas M. Lane of counsel) for appellants.

William L. Wemple, Assistant Attorney General (William A. Robertson, special attorney, of counsel; Frank L. Lawrence, special attorney, 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 provisions of law involved in this case are paragraphs 480 and 683 of the tariff act of 1909, which we quote:

480. That there shall be levied, collected, and paid on the importation of all raw or unmanufactured articles, not enumerated or provided for in this section, a duty of ten per centum ad valorem, and on all articles manufactured, in whole or in part, not provided for in this section, a duty of twenty per centum ad valorem.

683. Stone and sand: Burrstone in blocks, rough or unmanufactured; cliff stone, unmanufactured; rotten stone, tripoli, and sand, crude or manufactured, not otherwise provided for in this section.

The merchandise involved consists of what is called fire sand and was assessed for duty under paragraph 480 as a nonenumerated manufactured article. The appellants claimed free entry of the article as a manufactured sand.

The product is made by combining approximately 60 parts of crushed quartz with 30 parts of coke, 1 part of salt, and 10 parts of sawdust. The materials are thoroughly mixed and subjected to heat in an electric furnace with a temperature of 1,600 to 1,800 degrees

centigrade. The resulting material, which comes from the furnace in lumps, is afterwards crushed to the finely comminuted state found in the importation, which consists mainly of fine grains that have commingled with them some coarser grains, which might perhaps more appropriately be termed manufactured gravel than manufactured sand if either classification were to be adopted. Its use is for lining the electrical and fuel-fired furnaces employed in foundry work for the melting of metals, for binding fire brick, and for other purposes where a form of sand is required which will stand a high degree of heat.

An analysis of the material shows the following constituents:

Paragraph 683, containing the term "sand, manufactured,” is a reproduction of paragraph 671 of the act of 1897 which had been construed, prior to the enactment of the act of 1909, in the case of Myers v. United States (155 Fed., 502), in which Judge Holt said:

Crude sand is obviously common sand, as found in nature. It consists almost entirely of silica. I think the term "sand, manufactured," as used in the act, means a 'kind of sand which, although manufactured, is substantially the same as crude sand. I do not think, therefore, that pulverized corundum ore or corundum can be called "manufactured" sand in the sense in which that word is used in the act. The fact that it is technically covered by some of the definitions of sand in the dictionaries is in my opinion immaterial.

The case was taken to the Circuit Court of Appeals and decided in April, 1908. The court used this language:

Definitions of the word "sand" may be found sufficiently broad to include any mineral when reduced to fine particles. Other definitions limit the term to fine particles of stone, and in ordinary use it is confined to fine particles of silicious stone, common sand consisting almost entirely of silica. The decision of this case, however, does not require us to accurately define the word "sand." We are rather called upon to say what it does not include, as used in the tariff act, than what it does include. Obviously the word as employed does not include gold dust or any of the precious metals when reduced to fine particles. Almost equally clear is it that the baser metals—e. g., iron or zinc-when ground would not commercially be called sand; and we think it also follows that the term is inapplicable to any metalliferous mineral, although it be in comminuted fragments.

The tariff act of 1909 was enacted with these decisions before Congress, and it must be assumed that the reenactment was an

adoption of the construction previously given by the courts to the language.

Another case was made up by the same importers and is reported in volume 1 of our reports, page 506, and in that case it was said:

It will be noted that the word "sand" is used in the same paragraph with "burrstone," "cliff stone," "rotten stone," and "tripoli," all of which are cheap materials and mainly composed of silicious rock.

There are many definitions of the word "sand" which would cover the importation in question. But it often is given a more restricted meaning. Citing Webster's Dictionary and the New English Dictionary.

It was further held that the importation there in question, corundum, could not be considered manufactured sand within the meaning of this paragraph. It was said:

Undoubtedly sandstone, ground or crushed so as to separate the particles into loose grains, might be called manufactured sand. But something more than this is done to this material. It is not only crushed, but a process of separation of the various ingredients which go to make up the material of which it was originally composed

occurs.

In this case the process employed is not that of separation of parts from the main body of the rock or ore, but a process of addition or commingling of different materials. Coke certainly would not be regarded as sand, however finely it may be ground. Nor would salt or sawdust. These are commingled with crushed quartz, and by chemical reaction the article here in question is produced. That this is not the ordinary sand of the variety described in the opinions quoted and held to be the kind contemplated by the enactment in question is perfectly clear.

But it is said that a commercial meaning had been given to the word "sand" prior to the passage of the act of 1909. We think the evidence is weak in support of this contention, for the reason stated by the board. But more than this, we think, under the rule of ejusdem generis, the intention of the legislature to limit or restrict the sand entitled to free entry under the paragraph in question to common sand of like kind or material as that named in the paragraph is manifest and had, indeed, been ruled by the courts prior to the passage of the present act.

The testimony as to commercial designation does not show that this article is known by the name of sand alone, but by the compound name of fire sand or carborundum fire sand or Norton's fire sand. Assuming that such an article was known at the time of the enactment of the present law, we still think that the terms employed by the act "crude sand" and "manufactured sand," used in the connection in which they are, relate the term "manufactured sand” to material which ordinary common sand or crude sand would be composed of, and that this legislative purpose is so definitely shown