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The importer protested that the goods were fountain pens and therefore dutiable at 30 per cent ad valorem under the provisions of paragraph 187 of said act, which paragraph is as follows:

187. Penholder tips, penholders and parts thereof, five cents per gross and twentyfive per centum ad valorem; gold pens, twenty-five per centum ad valorem; fountain pens, stylographic pens, thirty per centum ad valorem; combination penholders, comprising penholder, pencil, rubber eraser, automatic stamp, or other attachment, forty per centum ad valorem: Provided, That pens and penholders shall be assessed for duty separately.

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

There is but one question presented for determination by the record and the briefs of counsel and that is, Are the articles imported fountain pens or are they only parts of fountain pens?

If the term "fountain pen" as commonly understood embraces only those ink-holding writing instruments which are furnished with a pen and are complete for their intended use, then the goods are not fountain pens. On the other hand, if by popular usage "fountain pen" has come to mean not only the completed article, but also the article lacking the pen point and therefore incomplete, then the claim of the importers was well founded and their protest should have been sustained.

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The original pen was the quill pen and originally the word "pen meant not a writing appliance which was separable into parts, but one in which nib and stalk were made of a single piece. After the invention of the steel pen, penholder and nib were made up in separate pieces, and by a kind of metonymy the word "pen" came to signify not only the.completed article but the pen point as well. While the term in its common acceptation may mean either the pen nib or the nib and the holder assembled and ready for writing, we are not aware that it has ever been applied to the holder alone or to any device serving as an adjunct to the pen point and designed to facilitate the use of the latter. In our opinion the goods are at best incomplete fountain pens, and are therefore not covered by a designation the common, ordinary meaning of which implies an article complete, finished, and ready for use.

In this connection it is worthy of note that paragraph 187 provides for penholders and parts thereof, and that it does not provide for parts of fountain pens. That that omission was not the result of a legislative lapse, but of deliberate design, is made evident by the fact that the paragraph as it passed the House contained a provision for parts of fountain pens, which provision was stricken out in the Senate. As modified by the Senate the paragraph was agreed to by the House. To make an incomplete fountain pen or a part of a fountain pen dutiable under paragraph 187 the fact that Congress intentionally

excluded "parts of fountain pens" from its operation would have to be ignored, and that course we are not prepared to take.

It may be that the assembled parts of fountain pens, lacking nothing except the pen point to make the article complete, are known in trade and commerce as fountain pens; but if so it was the duty of the importers to establish that fact by competent evidence. The importers having failed to make any such proof, it is our duty to give to the tariff designation its common, ordinary meaning, and as that meaning excludes the merchandise from the operation of the paragraph upon which the claim of the importers was based, we must hold that the protest was properly overruled. United States v. Wells, Fargo & Co. (1 Ct. Cust. Appls., 158, 162; T. D. 31211). The decision of the Board of General Appraisers is affirmed.

(T. D. 33374.)
Wantage.

UNITED STATES v. BROWN & Co. (No. 1071).

1. ENTRIES IN BOOKS, WHEN NOT EVIDENCE.

Entries in the books of a steamship company were offered in evidence to prove the condition of an importation on its arrival. A manager who did not make the entries in question, and who had no personal knowledge of the facts, is an incompetent witness to prove the entries by.

2. CHINESE WINES IN BOTTLES SHORTAGE.

The evidence here tends to show there was a shortage, but entirely fails to show that the packages when landed were in the condition they were found at the time they reached the importers' place of business.-United States v. Brown (2 Ct. Cust. Appls., 189; T. D. 31943).

United States Court of Customs Appeals, April 22, 1913.

APPEAL from Board of United States General Appraisers, Abstract 31006 (T. D. 33055). [Reversed.]

William L. Wemple, Assistant Attorney General (William A. Robertson, special attorney, of counsel), for the United States.

Brown & Gerry for appellees.

Before MONTGOMERY, Smith, BARBER, DE VRIES, and MARTIN, Judges. MONTGOMERY, Presiding Judge, delivered the opinion of the court: This is an appeal from a decision of the Board of General Appraisers reversing the decision of the collector at the port of New York. The merchandise consists of certain Chinese wine in bottles. The protest claimed that certain bottles were missing out of the various cases, and that these should not have been assessed for duty. The collector declined to make any allowance for shortage, but the Board of General Appraisers held that he erred in so doing, and

made allowance accordingly. This appeal is taken on the ground that the evidence is insufficient to warrant the action of the board. It is unnecessary to enter at length upon a discussion of the testimony offered by the importers, as it clearly appears with respect to the testimony of the witnesses having personal knowledge of the facts of which they speak, the case is on all fours with United States v. Brown (2 Ct. Cust. Appls., 189; T. D. 31943). The evidence, it is true, tended to show that there was a shortage, discovered in the packages when received at the business house of the importers. But there was wholly wanting any evidence to show that the packages when landed were in the condition in which they were found at the time they reached the business house of the importers. In this respect the case is precisely like that of United States v. Brown, supra.

Counsel for importers apparently appreciate that the case is ruled by the earlier case unless their contention hereinafter referred to shall prevail. They say, however, that in the present case the importers offered evidence to show that the steamship agents examined the cases in question while still on the steamship dock and found that the shortage was as stated by the importers, and hence made allowance to the importers for such shortage.

The testimony which the importers offered to show these facts was excluded by the Board of General Appraisers, but the importers contend that this testimony was improperly excluded, and that the Government is estopped to deny the truth of the facts which the importers offered to prove, citing M., K. & T. Ry. Co. v. Elliott (102 Fed., 96).

We do not think it necessary to affirm or deny the correctness of the ruling in that case. It must not be understood, however, that we imply that the remedy for an error in rejecting testimony is that which is asserted by the importers here. A difficulty with the importers' contention is found in the fact that the testimony offered was that of the manager of the steamship companies, who produced his books showing the entries of certain wantage in these cases, purporting to have been made by clerks on the wharves upon the statement of the coopers who opened the cases and made notations on the packages. It is not claimed by the witness who was produced that he had any personal knowledge of the facts, and there was no witness offered who had such personal knowledge. Nor was their absence accounted for by showing their death, absence from the jurisdiction, or other disability. The books were not under these circumstances without corroboration admissible as substantive proof of the fact of wantage in these cases. See Chaffee v. United States (85 U. S., 516, 539 et seq.).

The decision of the Board of General Appraisers is reversed.

(T. D. 33375.)

Polishing stones.

UNITED STATES v. JOHNSON & Co. (No. 1075). JOHNSON & Co. v. UNITED STATES (No. 1076).

WATER OF AYR WHETSTONES.

The stone is smooth, and its chief use is to smooth the rough surfaces of engraved rollers. It was dutiable as an article of earthy or mineral substance under paragraph 95, tariff act of 1909.-Waddell & Co. v. United States (3 Ct. Cust. Appls., 406; T. D. 32989); Manufacturers' Paper Co. v. United States (3 Ct. Cust. Appls., 72; T. D. 32353); United States v. Tamm (2 Ct. Cust. Appls., 425; T. D. 32173).

United States Court of Customs Appeals, April 22, 1913. APPEAL from Board of United States General Appraisers, Abstract 30677 (T. D. 32997). [Reversed.]

William L. Wemple, Assistant Attorney General (William A. Robertson, special attorney, of counsel), for the United States.

Hatch & Clute (Walter F. Welch on the brief) for appellees.

Before MONTGOMERY, SMITH, Barber, De VRIES, and MARTIN, Judges. MONTGOMERY, Presiding Judge, delivered the opinion of the court: These are cross appeals, but as the record was not made to show a ground for sustaining the appeal of the importers, we pass that by, as the importers have done in their brief, and deal with the case upon the appeal of the Government.

The case was rested upon the report of the appraiser, which states that the merchandise in question-water of Ayr whetstones-is identical with the subject of decision of the Board of General Appraisers in Abstract 24859 (T. D. 31316). The merchandise as described in the abstract referred to consists of water of Ayr whetstones, which the testimony showed to be a stone quarried from a quarry in Ayrshire, Scotland. On one side the stone is smooth, and its chief use is for smoothing the rough surfaces of engraved rollers. Stones of like character were before this court in Waddell & Co. v. United States (3 Ct. Cust. Appls., 406; T. D. 32989), and were held dutiable as an article of earthy or mineral substance.

This would be sufficient to say of the case except for the fact that there appears to have been a misapprehension on the part of the learned general appraiser who wrote the opinion. The case of Waddell & Co. was not cited, but two or three board decisions were cited, and also the cases of United States v. Tamm (2 Ct. Cust. Appls., 425; T. D. 32173) and Manufacturers' Paper Co. v. United States (3 Ct. Cust. Appls., 72; T. D. 32353). The board said of these cases:

Later the Court of Customs Appeals, in The United States v. Tamm (2 Ct. Cust. Appls., 425; T. D. 32173), held that glazing stones were dutiable under paragraph 95 as earthy or mineral substances.

In Manufacturers' Paper Co. v. United States (3 Ct. Cust. Appls., 72; T. D. 32353), the court held that dressed lava stones used for grinding purposes were dutiable under paragraph 480.

And cited a later board decision holding an importation like that in question to be dutiable under paragraph 480, and concludes as follows: Without attempting to reconcile any conflict that may exist in these cases, we think the weight of authority supports the importers' contention.

Whatever may be said as to the holdings of the board, there is no conflict in the cases cited from this court. The board's decision appears to be based upon the case of R. J. Waddell & Co. v. United States (135 Fed., 211), which was a case which arose under the tariff act of 1897. The distinction between that statute and the statute of 1909 was distinctly pointed out in the opinion of this court cited by the general appraiser (Manufacturers' Paper Co. v. United States). It was said:

At the argument the query was made as to whether this case would fall within the rule of United States v. Tamm & Co. (2 Ct. Cust. Appls., 425; T. D. 32173). The present case, however, arose under the act of 1897 and the applicable paragraph (97), which was held not to include articles which were not susceptible of decoration. United States v. Downing (207 U. S., 354); see also Fensterer & Ruhe v. United States (1 Ct. Cust. Appls., 93; T. D. 31110). The importation could not, therefore, under these rulings be held dutiable as earthy or mineral substances. The Tamm case arose under paragraph 95 of the act of 1909, which covers articles or works of earthy or mineral substances, whether susceptible of decoration or not.

In entire harmony with this decision and that of United States v. Tamm, the court held in the Waddell case (3 Ct. Cust. Appls., 406; T. D. 32989) that the articles here in question were dutiable as earthy or mineral substances under paragraph 95.

The decision of the board is reversed and the action of the collector sustained.

(T. D. 33376.)

Watchmen's time detectors.

CHICAGO WATCHMAN'S CLOCK WORKS v. UNITED STATES (No. 1079).

CASES CONTAINING WATCHMEN'S TIME DETECTORS.

Under the act of 1897 it was held that "watch movements" included "timedetector movements,” and the insertion in paragraph 192, tariff act of 1909, after "watch movements," the words "including time-detectors," plainly adopts that construction. Accordingly the merchandise was not dutiable as entireties, but as assessed under paragraphs 192 and 199 of the later act.

United States Court of Customs Appeals, April 22, 1913. APPEAL from Board of United States General Appraisers, Abstract 30882 (T. D. 33055). [Affirmed.]

Lester C. Childs for appellants.

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

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

This case involves the question of whether watchmen's time detectors, an article so well known that we consider it unneces

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