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Trinity Church case (143 U. S., 457).
The following proceedings,
which are officially reported in the Congressional Record, would seem to be pertinent in this case to show the legislative intent. sional Record, vol. 44, pt. 2, p. 1231.)
Mr. PAYNE. Mr. Chairman, I offer the following committee amendment, which I send to the desk and ask to have read.
The Clerk read as follows:
Paragraph 418. On page 127, line 19, after the word "wholly," insert the words "or in chief value:" and on page 127, lines 24 and 25, and on page 128, lines 1, 2, and 3. strike out the words "braids, plaits, laces, and willow sheets or squares, if composed in chief value of straw, chip, grass, palm leaf, willow, osier, rattan, cuba bark, or manila hemp, suitable for making or ornamenting hats, bonnets, or hoods, 15 per cent ad valorem.”
Mr. CLARK, of Missouri. How does that change the duty?
Mr. PAYNE. Mr. Chairman, the bill reads "wholly of straw," and we found that some braids that were presented to us as samples had a single cotton thread, the rest composed of straw, and that that cotton thread would increase the duty, I do not remember how much-10 or 15 per cent-because of the language of the paragraph. We wanted to correct that and let those come in at the same rate that braids made wholly of straw would come in; and so we say now "wholly or in chief value of straw," so as to let them come in at the lower rate of duty.
Mr. CLARK, of Missouri. The effect of that amendment is not to put up the price of hats and bonnets, and so forth, is it?
Mr. PAYNE. It is to put down the duty.
This amendment related only to the braids, plaits, etc., named in the first subdivision of the paragraph, and as thus amended the paragraph passed the House as part of the House bill and went to the Senate, where a similar amendment was inserted in the second subdivision of the paragraph relating to hats. This, we think, was simply the logical development of the paragraph and intended to make the provision as to the hats, irrespective of the trimming, the same as it was for the braids, plaits, etc., which were the materials of which the hats were made. That is to say, the hat, irrespective of whether it is or is not trimmed, must be composed wholly or in chief value of straw, chip, etc. If it is composed wholly or in chief value of one of the materials named in the paragraph, and is not trimmed, it unquestionably finds classification in the paragraph at the rate of 35 per cent ad valorem. If it is trimmed, it is still classifiable under that paragraph, but at a higher rate of duty, namely, 50 per cent ad valorem. In this view the amendment to that portion of the statute relating to hats may be said to be a legislative declaration of approval of the construction of the prior statute, for we held that the provision in the law of 1897 for untrimmed hats composed of straw, chip, etc., was equivalent to a provision for hats composed in chief value of those materials. (Note United States v. Churchill, 106 Fed., 672.)
Our conclusion is that hats, bonnets, or hoods when composed wholly or in chief value of any of the materials named in paragraph
422 are, if trimmed, dutiable under said paragraph at the rate of 50 per cent ad valorem, irrespective of the value of the trimmings, as compared with the value of the article without the trimming.
The protest in this case is accordingly sustained as to the items in Exhibit 1, which are covered by Schedule A, and the decision of the collector is modified accordingly.
(T. D. 33087-G. A. 7416.)
Tea-Test for color.
MECHANICAL ANALYSIS-CHEMICAL ANALYSIS.
The so-called Read test for color in teas is a mechanical analysis and not a chemical analysis within the meaning of section 10 of "An act to prevent the importation of impure and unwholesome tea" (29 U. S. Stat. L., 604). Such test may be applied as far as it goes, as a means to an end, and may be supplemented where artificial coloring matter is discovered by chemical methods to fix the identity of such coloring matter. Upon such identity being fixed, chemical analysis within the meaning of the statute, supra, is complete and judgment admitting or excluding the teas thereupon may be lawfully made by the Tea Board of General Appraisers.-G. A. 7404 (T. D. 32959) cited and modified accordingly.
United States General Appraisers, New York, January 13, 1913.
In the matter of protests numbered 2566, 2567, 2568, 2569, 2570, and 2571 of Carter, Macy & Co. against the application of the so-called Read test in the examination of teas.
Before General Appraisers HowELL, MCCLELLAND, and CHAMBERLAIN, constituting the Tea Board.
MCCLELLAND, General Appraiser: We are again brought to the consideration of the validity of regulation 22 (T. D. 32322), known generally as the "Read test" for color in teas, made and promulgated by the Secretary of the Treasury under and by virtue of the authority vested in that officer by section 10 of the so-called tea act, entitled "An act to prevent the importation of impure and unwholesome tea" (29 U. S. Stat. L., 604), passed by Congress and approved by the President March 2, 1897, through a rehearing granted on the application of the Assistant Attorney General, made in the following form:
It is respectfully asked that the consideration of the validity of the regulation of the Secretary of the Treasury in adopting the Read test be reopened, and that the board receive further evidence on the matter, with particular reference to determining whether this test is not a chemical test within the meaning of the statute.
The ground for making this application is that counsel for the Government has been advised since the previous hearing on this question that, in the opinion of many reputable chemists in different parts of the United States, the Read test is a chemical analysis within the usual meaning of that phrase. The existence of this evidence was not known to Government counsel at the time of the previous hearing, and, owing to the short notice which Government counsel had for the preparation in the previous case, it was not possible to make any search calculated to disclose the existence of such evidence. It is respectfully requested now that opportunity be given to call witnesses upon this phase of the case.
As indicated in the foregoing application for rehearing, and more fully set forth in our former decision, G. A. 7404 (T. D. 32959), the issue presented at the original hearing to determine the validity of regulation 22, supra, was confined to the taking of the testimony of witnesses experienced in the usages and customs of the tea trade. Manifestly it did not at such hearing occur either to counsel for the importers or the Government that there was any question of the Read test being a chemical analysis. The issue presented was solely one of whether the Read test was a test "according to the usages and customs of the tea trade," and the testimony of all of the witnesses heard being to the effect that the Read method for testing was not in accordance with such usages and customs, and upon the issue as presented we found and decided that regulation 22 was repugnant to the statute, and that in making and promulgating it the Secretary of the Treasury had exceeded the authority vested in him under section 10 of the tea act, supra.
Section 7 of the tea act, in addition to providing for the testing of tea according to the usages and customs of the tea trade, also provides that it may be tested by chemical analysis, but the question. of whether the Read test is in fact a chemical analysis as contemplated by the statute was not, as we have already stated, raised at such original hearing, it being apparently considered by both sides to the controversy as not being such an analysis, and so far as the Government is concerned that fact is clearly admitted in the foregoing application. The question now presented, as might be expected, resulted in the production of testimony of a purely technical character, the witnesses called, ten in number, all being professional chemists. There was exhaustive examination of each of them, and many authorities were quoted by them as supporting their respective views, but, narrowed down, the only vital difference between them is whether the mere discovery of a foreign substance or impurity by processes concededly mechanical constitutes a chemical analysis or whether the actual chemical identity of such foreign substance or impurity by the use of chemical reagents is necessary to constitute such an analysis. The witnesses were united in saying that the processes prescribed in the Read method (regulation 22) are mechanical down to the discovery of the color. At that point it is contended for the Government that the chemical analysis is complete, while the importers insist that the discovery of the color by the methods prescribed in regulation 22 completes only a mechanical analysis as distinguished from a chemical analysis. There are many kinds of analyses, but the only one, chemical in character, with which in this proceeding we are concerned is known as a qualitative analysis, since the purpose of the analysis of the tea is the separation of the component parts. It is very evident that the analysis by the
Read method is qualitative in character. In support of the views expressed by witnesses, many quotations of definitions from recognized authorities and writers on chemistry, as well as from lexicographers of chemical analysis, are in evidence, and it is from these definitions, rather than from the personal opinions of the witnesses, or the constructions placed upon the language used by such authorities by the witnesses, that we feel constrained to determine whether the result of the Read test is a chemical or merely a mechanical analysis. In the main, the language used by these authorities in defining the various kinds of analyses is plain and unambiguous rather than technically scientific. Its meaning may be accurately determined by anyone understanding the English language, whether technically versed in the science of chemistry or not. Counsel for protestant in their brief criticise the failure of the Government to produce the chemist who is the accredited authority of the Read test, as embodied in regulation 22, or to offer any explanation of the failure to give the board the benefit of her testimony, and in this connection direct our attention to a paper prepared by Dr. Read and printed in volume 8 of the "Original Communications of the Eighth International Congress of Applied Chemistry," held in the month of September, 1912. Dr. Read in her said paper stated, referring to her test for color in tea
The method suggested in this paper has the advantage in that it can detect much smaller amounts than can be found by chemical methods, but at the same time overlooks traces of color which would be found by a compound microscope.
The language thus quoted would seem to indicate that Dr. Read did not consider her test for the discovery of color as being chemical in character, and that fact may account for the failure of the Government to call upon her to testify in this proceeding.
None of the witnesses, even with the aid of a powerful microscope, could determine whether the blue spot shown on Exhibit 1 was ultramarine, cobalt, indigo, prussian or other blue, and we are decidedly of the opinion that an analysis which only thus separates the combined article is not a chemical analysis.
The Read test carried to its fullest extreme is a mere mechanical analysis, and we therefore must conclude that even though upon that test being applied to tea the presence of a foreign substance or color is disclosed, such a discovery is not the result of chemical analysis within the meaning of the statute. It would be at best a preliminary step in a chemical analysis. To make it a chemical analysis the color disclosed must be submitted to certain chemical processes through which its identity shall be fixed. These additional processes might be readily provided for by an amendment to regulation 22, but without regard to whether such an amendment shall be made, we have no doubt of our right to apply the Read test in our examina
tions of teas, as far as it goes, as a means to an end, and when by such test color is disclosed, to then submit the color to the chemical laboratory for the application of such chemical tests as will determine its identity. In this way a chemical analysis, such as the law contemplates in the examination of teas, would be made complete and a decision made by the board thereon would be within the law and conclusive on all parties.
To the teas involved in this proceeding the Read test, supplemented by such chemical processes as will disclose the identity of the color (if any) present, will be applied and the question of their right to entry determined upon the result thus ascertained.
Our decision, G. A. 7404 (T. D. 32959), is modified accordingly.
(T. D. 33088.)
Abstracts of decisions of the Board of General Appraisers.
Board 1-Sharretts, McClelland, and Chamberlain. Board 2-Fischer, Howell, and Cooper. Board 3-Waite, Somerville, and Hay.
BEFORE BOARD 1, JANUARY 7, 1913.
No.31030.-TOY SEWING MACHINES.-Protest 590268-40854 of Butler Bros. (Chicago). Opinion by Sharretts, G. A.
Cheap, flimsily made sewing machines claimed to be dutiable under paragraph 197, tariff act of 1909, were held properly classified as toys (par. 431). United States v. Borgfeldt (1 Ct. Cust. Appls., 370; T. D. 31455) and Pacific Mail Steamship Co. v. United States (T. D. 32361) cited.
No. 31031.-TWIGS IN BUNDLES
MANUFACTURES OF WOOD.-Protest 601346-40857 of Swedish Produce Co. (Chicago). Opinion by McClelland, G. A.
Twigs tied together in bundles, classified as brushes under paragraph 423, tariff act of 1909, were held dutiable as manufactures of wood (par. 215), as claimed.
No. 31032.-GROUND BONE-SUFFICIENCY OF PROTEST.-Protest 653002 of Isaac . McNiven (Niagara Falls). Opinion by McClelland, G. A.
Ground bone classified under paragraph 463, tariff act of 1909, was held free of duty as a substance fit only for fertilizer (par. 515). Protest citing the wrong paragraph held sufficient.
No. 31033.-ALIZARIN ASSISTANT-LUBRICATING OIL.--Protests 614395, etc., of C. B. Richard & Co. et al. (New York and Philadelphia). Opinion by McClelland, G. A.
On the authority of Abstract 28570 (T. D. 32560) merchandise classified as alizarin assistant under paragraph 32, tariff act of 1909, was held dutiable as a nonenumerated manufactured article (par. 480).
No. 31034.—GROUND EMERY.-Protest 663800 of W. A. Brown & Co. (New York). Opinion by McClelland, G. A.
Ground emery held properly classified under paragraph 432, tariff act of 1909.