Hearings, 6109-6125.) In this presentation the history of the manufacture and of the decisions of the board and the courts above men tioned were all recited, and an appeal was made for such action as would place the same rate of duty upon both kinds of articles alike

In the submission of the subject to the committee certain exhibits were filed, and the following statements were made relative to the manufacture, characteristics, and trade name of the paper in question:

4. Process of manufacture: Parchment paper which is used for the same purposes as the papers manufactured by this company is produced by subjecting paper known as "unsized" or "waterleaf," made of cotton or sulphite fiber, or both in combination, to a bath of sulphuric acid, which renders it practically impervious to grease, while the paper manufactured by this company is rendered impervious to greases by treating the sulphite fiber from which it is made in such manner, by mechanical appliances, as to gelatinize it, making the resultant sheet of paper very dense, nonporous, and therefore practically impervious to greases.

5. Similarity of appearance: The papers manufactured by this company are not only used as a substitute for parchment paper in many cases, but they are so similar to it that it is often difficult, except by an expert, to detect any difference at all between them. Attached hereto are samples of our grease-proof paper, marked "Exhibit A," of imported grease-proof paper, marked "Exhibit B," and of parchment paper, marked "Exhibit C."

11. Synonymous terms: The terms "imitation parchment," "grease proof," and "pergamyn" are synonymous terms, being simply trade names for the same grade of paper, and are applied to the grade of this paper which is nontransparent, and the term "glassine," "parchmyn" and "japanin" paper are synonymous and are applied to the grade of this paper which is transparent. All of these papers are produced from the same basis, the transparent grade being the result of an advanced process to which the nontransparent base has been subjected (p. 6117).

Also in Notes on Tariff Revision, 531, the attention of the committee was called to the decisions above referred to.

In the light of these facts it can hardly be doubted that Congress enacted paragraph 411 in its present form with the express purpose of making these two articles, namely, parchment paper and imitation parchment paper, subject to the same duty; nor can it be doubted that the term "imitation parchment paper" was used in the act with the same meaning as that given to it in the former adjudications and in the presentation of the subject to the committee, as above stated. That meaning plainly applied to articles of the same class with that at bar. It is true that the form suggested for the revised paragraph, in the presentation of the subject to the committee, with its schedule of various trade names, was not literally adopted in the enactment. Nevertheless sufficiently comprehensive terms were adopted to evince a congressional purpose to group true and imitation parchment paper within the same classification, without regard to trade names, and regardless also of the possible contention that the supercalendering of the latter product would prevent its classification as imitation parchment paper.

This purpose seems to be unmistakably expressed in the provision, as it finally appeared in the present paragraph, for "parchment papers, and grease-proof and imitation parchment papers which have been supercalendered and rendered transparent, or partially so, by whatever name known," and also at the same rate for "all other grease-proof and imitation parchment papers, not specially provided for in this section, by whatever name known."

It need hardly be added that this specific enumeration of the article in question takes precedence over the general classification of wrapping paper not specially provided for in paragraph 415, which is proposed in the protest of the importers.

In accordance with these views, the court finds no error in the decision of the board, and the same is accordingly affirmed.

(T. D. 33222.)

Marble.

HAYDEN CO. 1. UNITED STATES (No. 1005).

MARBLE PRODUCTS NOT SCULPTURES.

The Board of General Appraisers found these marble products were not the productions of a sculptor. The record sustains this finding.

United States Court of Customs Appeals, February 18, 1913.

Appeal from Board of United States General Appraisers, Abstract 29531 (T. D. 32767). [Affirmed.]

Churchill & Marlow (William A. Hines of counsel) for appellant. William L. Wemple, Assistant Attorney General (Leland N. Wood, assistant attorney, of counsel), for the United States.

Before MONTGOMERY, SMITH, BARBER, DE VRIES, and MARTIN, Judges. MONTGOMERY, Presiding Judge, delivered the opinion of the court: Large importations of marble products were made, claimed to be the professional productions of a sculptor only. The Board of General Appraisers found that the evidence produced was insufficient to establish the facts claimed. The importer appeals. The sole question presented is whether the finding of the board was justified.

A careful consideration of the record convinces us that the evidence was wholly insufficient to sustain the claim made by the importer.

The decision is affirmed.

(T. D. 33223.)

Smokers' articles.

BERNHARDT et al. v. UNITED STATES (No. 1009).

AUTOMATIC LIGHTERS.

The question for determination was whether the goods of the importation were in their chief use smokers' articles. They were so assessed and the board so found them. From the evidence, while it appears the articles may have other occasional uses, their chief use is as cigar lighters, and they were properly assessed as smokers' articles. Knauth v. United States (1 Ct. Cust. Appls., 334; T. D. 31432); Dale v. United States (2 Ct. Cust. Appls., 384; T. D. 32111).

United States Court of Customs Appeals, February 18, 1913. APPEAL from Board of United States General Appraisers, Abstract 29552 (T. D. 32767). [Affirmed.]

Comstock & Washburn for appellants.

William L. Wemple, Assistant Attorney General (Charles E. McNabb, assistant attorney, of counsel; William A. Robertson, special attorney, of counsel), 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 this case consists of small lighters in the form of oblong boxes about 11⁄2 inches wide by 21⁄2 inches long and threeeighths of an inch in thickness, which, when opened, make a light. The articles are evidently designed to be carried in the pocket and are admittedly well adapted for, and are often sold for, cigar lighters. They were assessed for duty under paragraph 475 of the tariff act of 1909, which provides for all smokers' articles whatsoever. The appellants claim that they are dutiable as articles of metal under paragraph 199. The board found that the appellants had failed to establish by a preponderance of the testimony that the classification made by the importer was incorrect.

Under the previous holdings of this court in Knauth v. United States (1 Ct. Cust. Appls., 334; T. D. 31432) and Dale v. United States (2 Ct. Cust. Appls., 384; T. D. 32111) the question which stood for decision by the board was one of fact, namely, as to whether the articles in question were in their chief use smokers' articles. The collector having classified the articles as smokers' articles, the burden rested with the importer.

Without attempting a review of the testimony in this opinion, we are satisfied that the conclusion reached by the board has ample support in the testimony, and that it is not clearly against the weight of the evidence. Indeed, an examination of the testimony convinces us that while the articles may have other occasional uses, their chief use is that of cigar lighters. They are well adapted to be carried in the pocket and in that respect are distinguished from the article considered in the case of Sheldon & Co. v. United States (2 Ct. Cust. Appls., 439; T. D. 32199).

The decision of the board is affirmed.

(T. D. 33224.)

Feather dusters.

UNITED STATES v. SCHEUER & Co. (No. 1045).

FEATHER DUSTERS-TOYS.

These articles fall within the terms of paragraph 423, tariff act of 1909, as "feather dusters of all kinds"; and as it does not appear they are adapted to use by children any more than by grown people on gala days, and further, there being no proof of a commercial designation of toys, the importers must be taken to have failed in showing the collector's classification was erroneous. - Illfelder v. United States (1 Ct. Cust. Appls., 109; T. D. 31115).

United States Court of Customs Appeals, February 18, 1913. APPEAL from Board of United States General Appraisers, Abstract 29881 (T. D. 32842). [Reversed.]

William L. Wemple, Assistant Attorney General (Charles E. McNabb, assistant attorney, of counsel; Charles D. Lawrence, special attorney, on the brief), for the United States.

John Giblon Duffy for appellees.

Before MONTGOMERY, SMITH, BARBER, DE VRIES, and MARTIN, Judges. MONTGOMERY, Presiding Judge, delivered the opinion of the court: This is an appeal of the United States from a decision of the board reversing the action of the collector of customs at the port of New York. The importation in question consists of small feather dusters 18 to 20 inches in length. The handles are apparently bamboo, and on the end is a loop by which the articles may be hung up when not in use. The collector assessed the merchandise for duty at the rate of 40 per cent ad valorem, under paragraph 423 of the act of 1909, which reads:

Brushes, brooms, and feather dusters of all kinds, and hair pencils in quills or otherwise, forty per centum ad valorem.

The board, having before it no other testimony than the special report of the local appraiser and the samples, held the articles properly dutiable as toys at the rate of 35 per cent ad valorem under paragraph 431 of said act, which reads as follows:

Dolls, and parts of dolls, doll heads, toy marbles of whatever materials composed, and all other toys, and parts of toys, not composed of china, porcelain, parian, bisque, earthen or stone ware, and not specially provided for in this section, thirty-five per centum ad valorem.

The board in deciding the case states that the official samples shown are miniature feather dusters similar to those the subject of Abstract 24056, and therein held to be toys. In the case referred to the board said:

The evidence shows that such miniature dusters are used as "ticklers," or, in other words, as articles for amusement on carnival and other like occasions. An examination of the official samples leads us to the conclusion that they are not articles of utility and that whatever value they have must be as playthings.

If it were necessary to rest the case upon the proposition, we would hesitate to say that the presumption that this article is an article of some utility has been overcome by the proof afforded by a bare inspection of the official sample. But, conceding that its sole use is that of a tickler used for amusement on carnival and other like occasions, it would come directly within the ruling of this court in Illfelder v. United States (1 Ct. Cust. Appls., 109; T. D. 31115), in which it was said:

Although an article may be chiefly used for the amusement of children, if its nature and character are such that it is also reasonably fitted for the amusement of adults, or if it is reasonably capable of use for some practical purpose other than the amusement of children, it can not be classed as a toy unless it is affirmatively shown by the importer that it is so known and designated by the trade generally.

In this case there was no proof that the articles are commercially known as toys. See also United States v. Strauss (136 Fed., 185) and Hamburger v. United States (2 Ct. Cust. Appls., 234; T. D. 31956). The importation falls within the terms of paragraph 423 as "feather dusters of all kinds," and as it is not shown by any testimony in the record, and as we are not able to find from inspection that they are adapted to use as ticklers by children any more than by grown people on gala days, and as there is no proof of commercial designation, we must hold that the importer failed to sustain the burden of showing the classification of the collector to be in error and it results that the decision of the board must be reversed.

(T. D. 33225.)

Redesignation of supervising tea examiner.

TREASURY DEPARTMENT, February 21, 1913.

To officers of the customs and others concerned:

Referring to T. D. 32554, relative to the appointment and duties of the supervising tea examiner, Mr. George F. Mitchell will continue to act as supervising tea examiner until further notice.

JAMES F. CURTIS, Assistant Secretary.

(T. D. 33226.)

Common carrier.

Approving new bond of Western Maryland Railway Co. as a common carrier of merchandise in bond and for the lading and unlading of bonded goods under the act of February 13, 1911.

TREASURY DEPARTMENT, February 25, 1913.

SIR: The bond, in duplicate, transmitted with your letter of the 17th instant, of the Western Maryland Railway Co. as a common carrier for the transportation of dutiable merchandise and for the