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Samples, respectively, contain about 8 per cent of bodies extracted by alkali. Samples insufficient to determine tar acids satisfactorily.

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There seems to be no dispute that in trade this article is known as Carbolineum avenarius, and is bought and sold under that name. On the part of the importers, however, while admitting this trade name, it has been the purpose to establish that it is in fact, and has been generally known as, creosote oil. The question as to whether oil sold under the name of Carbolineum avenarius should be classified as dead or creosote oil was before the board as early as 1896. In that year, in determining the question adversely to the protestant the board said: The case was heard by the board on May 17, 1895, at which time the protestant appeared by attorney and submitted the same upon the testimony of a witness, to the effect that he was a professional chemist; was familiar with the article known as Carbolineum avenarius"; that it was a product of coal tar known as "dead oil,' which had undergone a process described as ozonizing, comprising powerful agitation and treatment with chlorin.

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We find as facts

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* (2) that it is a distilled oil, known commercially as tar oil, which has undergone certain mechanical manipulation and treatment with chlorin or some other oxidizing agent, which renders it viscous and more unctious. (G. A. 3548; T. D. 17328.)

In G. A. 4426 (T. D. 21061) the board, in passing upon what seems to have been a similar article as indicated by the following language, said:

It appears from the invoices and from other evidence in the cases that the merchandise comes from R. Avenarius & Co., of Stuttgart, Germany.

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It clearly appears from the evidence that the article in question has an established and well-known trade designation differing from dead or creosote oil (and from carbolic acid), and that it differs therefrom essentially in its constituents, qualities, and the uses to which it may be applied.

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Chlorin or chlorin gas, or chlorid of zinc, are not, however, constituents of coal tar or of any of the bodies obtained therefrom, and by the use of either one or the other of these, in combination with basic materials, other and different bodies are formedchemical compounds whereby their antiseptic properties are intensified, their specific gravity raised, and they are rendered less volatile when exposed to the air.

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In that case the board held that the merchandise was a chemical compound, but in Downing v. United States (123 Fed., 1000) the United States Circuit Court reversed the decision of the board and held it was subject to duty as a coal-tar preparation. The significance of this latter decision is that the oil was held not to be dead or creosote oil. While it is true that there is no direct affirmative proof that the oil in question is in all respects the same as that which was the subject of the foregoing decisions, that fact has not been negatived by evidence, and we think there is ample indirect proof in the reports of analyses, Exhibits A and B, supported by the statements of witnesses not successfully controverted, that the zinc and chlorin disclosed upon analyses are not naturally present.

If we assume that this Carbolineum avenarius is in all material respects the same as that involved in the Downing case, supra, the question at issue is res adjudicata.

The classification of this article as a coal-tar preparation with duty at 20 per cent ad valorem continued, apparently without protest on the part of the importers, from the decision in the Downing case, in 1901 to October, 1910-the earliest of the protests now before us being dated the 11th day of October, 1910.

On December 8, 1910, Assistant Secretary of the Treasury Jamest F. Curtis issued instructions to the collector of customs at the port of New Orleans, as follows:

Referring to the department's letter of September 15 last, directing you to assess duty upon so-called creosote oil imported through your port when containing traces of chlorin and zinc compounds, to the end that your classification of this merchandise should be in harmony with the practice at the port of New York, I have to advise you that as a result of careful investigation of this matter the department has reached

the conclusion that this merchandise, when containing less than 1 per cent of chlorin or zinc compounds, should be admitted free of duty under paragraph 536 of the tariff act, which paragraph admits to free entry products of coal tar known as dead or creosote oil.

In view of the foregoing, you are hereby directed to admit future importations of so-called creosote oil containing less than 1 per cent of chlorin or zinc compounds under paragraph 536 free of duty.

You are also directed to reliquidate all entries which were liquidated at the rate of 20 per cent ad valorem under paragraph 15 of the said act in harmony with the department's instructions of September 15 last, where protests were duly filed and not forwarded to the board.

As to protests which were forwarded to the board, you are hereby authorized to enter into a stipulation with the importers to the effect that the protests may be dismissed without prejudice, and to forward the stipulation to the president of the Board of United States General Appraisers, who will return the protests to you. Upon the receipt of the protests you are hereby directed to reliquidate the entries covered thereby for the purpose of refunding the duties collected upon the merchandise in question.

Future entries containing more than 1 per cent of chlorin or zinc compounds should be referred to the department before liquidation. (T. D. 31093.)

These protests, probably for the reason that the importations covered thereby were entered at the port of New York, remained with the board, and the issue raised thereby was tried and is now before us for determination as the statute contemplates it should be disposed of.

An issue substantially the same as that here presented was raised by protests numbered 467167, etc., lodged by Hawley & Letzerich, and was decided favorably to the importers in G. A. 7240 (T. D. 31719), but in that decision the board noted the following:

The Government submitted no testimony to sustain the collector's classification. The evidence of protestants' witnesses, uncontradicted, leaves us no alternative but to find that the merchandise is creosote oil.

In publishing said G. A. 7240 the Treasury Department published with it an explanatory note or defense of the Government's attitude in failing to offer any evidence in support of the classification by the collector of the oil involved as a coal-tar preparation, subject to duty at the rate of 20 per cent ad valorem. In this note the following appears:

The Deputy Assistant Attorney General in charge of this case states that

Being unable to find witnesses who could refute the assertions made by the protestants, this office became satisfied that the facts adduced by the protestants were true. For these reasons no evidence was introduced on behalf of the Government.

That decision and note was published on June 14, 1911, and thereafter, on the 24th of the same month, the Secretary of the Treasury, testifying before the Committee on Expenditures in the Treasury Department of the House of Representatives, stated, regarding the

failure of the Government to offer evidence as aforesaid and the board's notation of that fact, as follows:

The Board of General Appraisers decided this way the other day in a case that was before them; but they stated-I do not know why they should do such a thing-but they stated that the Government did not put in any evidence.

The CHAIRMAN. That was true?

Secretary MACVEAGH. Yes, sir; that was true.

The CHAIRMAN. Why did not the Government put any evidence in?
Secretary MACVEAGH. Because they could not get any.

The CHAIRMAN. Could not get any?

Secretary MACVEAGH. They could not.

The CHAIRMAN. What attempt did they make to get evidence?

Secretary MACVEAGH. They made the usual effort. There was no better man in the Government service than Mr. Lloyd, who had charge of the case and who died suddenly the other day in New Haven. He made an attempt, which he considered complete and sufficient, and reported orally afterwards, and just before he died. He told Mr. Curtis that he had tried to get testimony that he considered competent, but that he could not get any; and Mr. Curtis had a letter the other day from Mr. Payne, who was one of the assistants in the case to Mr. Lloyd, and he makes the statement that they tried, but could not get any evidence that they considered valid in the case. The fact is that there is no evidence in the case (pp. 99-100).

Notwithstanding the foregoing, it appears that subsequent thereto the question of the classification of Hawley & Letzerich's oil again came before the board in protests 489484, etc., which became the subject of G. A. 7378 (T. D. 32653), published June 24, 1912, in which we said:

A similar issue was presented to the board in protests 467167, etc., lodged by Hawley & Letzerich, who are the protestants in this case, and determined in their favor in G. A. 7240 (T. D. 31719); but in that case, as the board pointed out, the testimony was altogether one sided, the Government having offered nothing to sustain the collector's classification. In the case at bar the situation is very different. A large number of witnesses were examined, and the Government's classification was as earnestly supported as the claim of protestants. There is an ample record on which to make an intelligent determination of the issue.

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It was sought, however, on the part of protestants to establish that within the past few years there has been gradual change in the commercial understanding of what constitutes creosote oil, this change resulting from conditions brought about by the demands of consumers for higher boiling oils to be applied to the same uses.

It is not to be overlooked, however, that this alleged change, if such change exists, has been accomplished through the action of large consumers of coal-tar oils who have from time to time so changed the specifications accompanying their orders for coal-tar oils that they could only be met by the delivery of oils the larger per cent of which come over in the process of distillation above the recognized maximum boiling point for creosote oil.

Among other standard authorities referred to in the record and which we have consulted are Lunge's Coal Tar and Ammonia, second and third editions; Allen's Commercial Organic Analyses; Sadtler's Handbook of Industrial Organic Chemistry; and Thorpe's Outlines of Industrial Chemistry. These authorities are practically agreed that the points between which creosote oil comes off in the processes of distillation are 200° C. and 270° C.

There is absolutely nothing in the record—notwithstanding the efforts on behalf of protestants to the contrary-to establish that there has been any change either scientifically, commercially, or practically in the understanding of what constitutes creosote oil or how it is obtained.

The witness Richardson, for protestants, very frankly says that previous to four or five years ago anything that boiled over above 300° C. was not creosote oil, but he ventured the opinion that that understanding no longer prevailed. There was no other attempt to dispute the rule laid down by standard authorities than such as we have indicated on the part of large consumers, and how far their united effort to have such high-boiling oils as those under consideration denominated creosote oils was influenced by the fact that under the law as it exists creosote oils are entitled to free entry is of course a matter of conjecture; but it is a reasonable inference that the effort to change the standard by those who consume enormous quantities of high-boiling tar oils, so that they may fall within the eo nomine provision for creosote or dead oil, has been with the purpose of escaping the payment of duties which would otherwise result.

It is practically admitted on the part of protestants, and if not it is abundantly established by their own witnesses, that these high-boiling oils have greater stability and much greater value as wood preservatives than the low-boiling oils, and as a commercial proposition their money value is from five to ten times as great.

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Aside from the features of this case presented by the presence of zinc and chlorin as disclosed by the analyses, supra, there is little difference between the issue here presented and that passed upon in G. A. 7378, supra, except as to the residues remaining above 350° C. What we said in G. A. 7378, as applying to the oils therein passed upon, and the tendency of large consumers who use high-boiling oils to change the standard so as to bring them within the eo nomine provision for creosote oil, applies with equal force to the oil in question, and we therefore repeat as follows:

It is a recognized scientific fact that in the distillation processes of coal tar anthracene begins to come over at about 270° C., but the assumption is, of course, not warranted that all that comes over above 270° C. or even 300° C. is anthracene. Whatever that which does come over above these points may be called, there seems absolutely no warrant for classing it as creosote oil, either scientifically or commercially, and, inasmuch as it is not creosote oil or dead oil, and there being no other provision for it in the free list of the tariff act, it follows that it must be subject to duty.

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To hold that such oils as these had been by the alleged change in conditions or trade understanding brought within the commercial term "creosote or dead oil" would be equivalent to saying that whenever a number of large consumers of a commodity subject to duty on import desired to escape the payment of duties thereon they could get together and for their own pecuniary advantage apply to it the name of some other commodity which the law expressly declares shall not pay duty, and thus overcome and defeat the manifest purpose of the law. So far as we have been able to discover, such a course has never yet had judicial sanction.

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At the congressional hearing heretofore referred to the Secretary of the Treasury further testified as follows:

The CHAIRMAN. He prepared the order, as I started to say a moment ago, basing it entirely upon what the great port of New York had done with regard to this creosote

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