No. 32406.—Leakage of SAKE.-Protests 476015, etc., of S. Kajima et al. (Honolulu). Opinion by Waite, G. A. Furuya v. United States (2 Ct. Cust. Appls., 371; T. D. 32095) followed as to leakage of sake. Protests overruled. No. 32407.-PROTESTS OVERRULED.-Protests 676125, etc., of Al. G. Pritchard & Co. et al., and protests 231358, etc., of Saks & Co. et al. (New York), and protests 630481, etc., of Frank Waterhouse & Co. et al. (Port Townsend). Opinions by Waite, G. A. Protests unsupported; overruled. No. 32408.-PROTESTS DISMISSED.-Protests 630479, etc., of John Vittucci Co. (Port Townsend). Opinion by Waite, G. A. Protests dismissed upon stipulation of counsel. No. 32409.-COVERINGS OF LIQUIDS AND SEMILIQUIDS.-Protests 330547, etc., of La Manna, Azema & Farnan, and protests 271038, etc., of Jules Weber (New York). Opinions by Somerville, G. A. On the authority of United States v. Peabody (T. D. 32383) certain coverings of liquids and semiliquids were held entitled to free entry, as claimed. Protests sustained in part. No. 32410.-SCIENTIFIC APPARATUS.-Protests 588149, etc., of W. A. Morschauser (New York). Opinion by Hay, G. A. "Millionaire" calculating machines classified under paragraph 199, tariff act of 1909, were claimed to be free of duty as scientific apparatus (par. 650). Protests sustained as to machines imported for the Agricultural College of Cornell University and Mount Wilson Solar Observatory. G. A. 5532 (T. D. 24902) followed. Protests overruled as to all other machines for the reason that the regulations of the Secretary of the Treasury were not complied with. No. 32411.-PROTESTS OVERRULED.-Protests 654799, etc., of Joseph R. Foard Co. (Baltimore), protests 686282-4452, etc., of Oberle & Henry et al. (New Orleans), protests 676080, etc., of China-America Importing Co. (New York), protest 684159 of I. McNiven (Niagara Falls), protests 643425, etc., of Morimura Bros. et al. (Port Townsend), protests 626719, etc., of S. L. Jones & Co. et al. (San Francisco), and protest 636114 of Paga, Lopez & Co. (San Juan). Opinions by Hay, G. A. Protests unsupported; overruled. No. 32412.-PROTESTS DISMISSED.-Protest 668883-43064 of G. W. Sheldon & Co. (Chicago), and protest 680648 of H. H. Robertson (Plattsburg). Opinions by Hay, G. A. Protests dismissed upon stipulation of counsel. BEFORE BOARD 1, MAY 16, 1913. No. 32413.-FISH IN TINS.-Protest 463592-3678 of George William Rueff (New Orleans). Opinion by McClelland, G. A. United States v. Smith (T. D. 33312) followed as to fish in tins. Protest sustained in part. No. 32414.-GAUFFRE LEATHER.-Protests 652344, etc., of Kronfeld, Saunders & Co. et al. (New York). Opinion by McClelland, G. A. Dejonge v. United States (T. D. 33040) followed as to gauffre leather assessed at 15 and 10 per cent under paragraph 451, tariff act of 1909. Protests overruled. No. 32415.—Ceramic Colors.-Protests 582291, etc., of F. H. Shallus (Baltimore), and protests 519857, etc., of O. G. Hempstead & Son (Philadelphia). Opinions by McClelland, G. A. On the authority of Reusche v. United States (T. D. 32983) ceramic colors were held properly classified under paragraph 56, tariff act of 1909. No. 32416.-PROTESTS OVERRULED.-Protest 652052 of W. Schade & Co. (St. Louis). Opinion by McClelland, G. A. Protest unsupported; overruled. BEFORE BOARD 2, MAY 16, 1913. No. 32417.-STEEL STAMPINGS.-Protest 668558 of A. & H. Veith (New York). Opinion by Fischer, G. A. Steel stampings classified under paragraph 199, tariff act of 1909, were held dutiable under paragraph 131, as claimed. Abstract 30908 (T. D. 33055) followed. No. 32418.-TAPE PRINTING MACHINE-PRINTING PRESS.-Protest 616978 of Levy & Levis Co. (New York). Opinion by Fischer, G. A. A machine consisting of a wheel-like arrangement of three narrow rolls, in one of which narrow disks are fastened containing the lettering, designed to print tape used for tying packages and parcels, was held properly classified under paragraph 199, tariff act of 1909, and not dutiable as a printing press (par. 197). No. 32419.—Iron Sheets, COLD ROLLED.-Protest 680133 of George Nash Co. (New York). Opinion by Fischer, G. A. Cold-rolled iron was held properly classified as sheets under paragraphs 127 and 129, tariff act of 1909. No. 32420.-RAIL REPAIR MACHINE-MACHINE TOOLS.-Protest 612812-41435 of Wall Del Mar (Chicago). FISCHER, General Appraiser: The report of the appraiser in the case is as follows: The merchandise in question is a portable rail repair machine operated by steam, suitable for use in breaking off the upper portion of worn-out table and Trailroad rails, and affixing thereto by means of a clamping or welding device grooved slabs or tops of new steel, making an up-to-date groove or Trilby rail of old-style street railway rails. This machine is not a machine tool in the accepted sense of the term, because of the fact that it is not suitable for use in workshops for planing, drilling, sawing, etc. It was returned for duty under paragraph 199 at 45 per cent ad valorem. The machine so referred to is invoiced as a "Romapac patent machine for rolling or cutting and breaking the upper portion of compound tram rails." It is used in railway construction for combining the two sections, lower and upper, of composite or compound rails. The upper rail or head section, which has depending sides, is attached to the base rail by means of this machine, which presses or crimps the sides of the head rail so as to grip the lower base rail. The same machine is used in cutting off this head portion and breaking it apart from the base rail when it is necessary to put on a new head rail. It is steam driven and power operated, is propelled along the tracks like a traction engine, weighs about 6 tons, including the motive part or engine and accessories, and is claimed dutiable at 30 per cent ad valorem under paragraph 197, tariff act of 1909, as a machine tool. There is here no question of commercial designation. We have to determine whether within common understanding this machine comes within any proper definition of a machine tool. The imported article is an entirety; it is specially designed for mechanical work on metal, and it is power operated and driven. The only work it does perform is to bend, form, shape, and cut metal. If we deny it classification as 75044-VOL 24-13-46 a machine tool it can only be on the ground that the motive part is incorporated with and made a part of the machine. We do not believe, however, that within the ordinary meaning of the term "machine tool," this machine is any the less entitled to be called a machine tool because it is self-propelling or carries with it its own motive force or means of producing such force or power. The ordinary definition may not be in keeping with the meaning of the term as it is used in trade. It may be too broad in including every power-operated metal-working mechanism, and trade usage may possibly limit the scope of the term "machine tools" to only such power tools as perform general work on metal rather than special. With this side of the question, however, we are not here concerned. We are satisfied that the record as presented does not justify any other conclusion than that within common understanding the imported article is a machine tool. We so hold. The protest is accordingly sustained. No. 32421.-Lithographed LABELS.-Protest 679908 of R. F. Lang (New York). Opinion by Fischer, G. A. Labels over 10 square inches cutting size, printed in less than eight colors were held dutiable at 20 cents per pound under paragraph 412, tariff act of 1909, as claimed. No. 32422.-DECALCOMANIAS-SUFFICIENCY OF PROTEST.-Protest 652490 of Maltus & Ware (New York). Opinion by Fischer, G. A. Protest sustained on the authority of United States v. Borgfeldt (2 Ct. Cust. Appls., 197; T. D. 31945) as to decalcomanias claimed to be dutiable under paragraph 400, tariff act of 1897. Protest signed by agent of the importer held sufficient. No. 32423.—IMITATION PARCHMENT PAPER.-Protest 596866 of Hensel, Bruckmann & Lorbacher (New York). Opinion by Fischer, G. A. Imitation parchment paper was held dutiable under paragraph 411, tariff act of 1909, as claimed. G. A. 7438 (T. D. 33238) followed. No. 32424.-STRAW PLAITS.-Protests 648712, etc., of J. Friedenberg (New York). Opinion by Howell, G. A. Colored straw plaits suitable for making or ornamenting hats were held dutiable under paragraph 422, tariff act of 1909, as claimed. Protests sustained in part. BEFORE BOARD 3, MAY 16, 1913. No. 32425.—COMMISSIONS.-Protest 648139 of Frank P. Dow Co. (Port Townsend). Opinion by Waite, G. A. On the authority of G. A. 7433 (T. D. 33193) protest overruled claiming certain commissions to be nondutiable. No. 32426.-ANIMALS-AMERICAN PRODUCTS.-Protest 588305 of F. A. Bonnet (Eagle Pass). Opinion by Waite, G. A. Cattle assessed under paragraph 225, tariff act of 1909, were claimed entitled to free entry as American animals returned after having been exported (par. 500). Protest overruled. No. 32427.-GREEN KERN-Rye.-Protest 674506 of Levy & Levis Co. (New York). Opinion by Waite, G. A. Protest sustained on the authority of Abstract 31716 (T. D. 33280) relating to green kern held dutiable as rye under paragraph 241, tariff act of 1909. No. 32428.-PROTESTS OVERRULED.-Protests 605041, etc., of Thomas Prosser & Son et al (San Francisco). Opinion by Waite, G. A. Protests unsupported; overruled. No. 32429.-COVERINGS OF LIQUIDS AND SEMILIQUIDS.-Protests 274065, etc., of Reiss & Brady (New York). Opinion by Somerville, G. A. On the authority of United States v. Peabody (T. D. 32383) certain coverings of liquids and semiliquids were held entitled to free entry, as claimed. Protests sustained in part. No. 32430.—AMOR'S METAL POLISH.-Protest 682009 of G. Neustadter & Bro., and protests 637791, etc., of Adolph M. Rosenheim et al. (New York). Opinions by Hay, G. A. Protests overruled as to Amor's metal polish assessed under paragraph 95, tariff act of 1909. No. 32431.-GODDARD'S PLATE POWDER.-Protest 519887 of W. Hodges & Co. (Philadelphia). Opinion by Hay, G. A. Goddard's plate powder assessed under paragraph 95, tariff act of 1909, was claimed dutiable as a nonenumerated manufactured article (par. 480). Protest overruled. Bartley v. United States (T. D. 32961) cited. No. 32432.-PUTZ POMADE.-Protest 683719 of H. G. Ramsperger & Co. (New York). Opinion by Hay, G. A. On the authority of United States v. Embossing Co. (T. D. 32536) Putz pomade was held dutiable as a nonenumerated manufactured article under paragraph 480, tariff act of 1909, as claimed. No. 32433.—Pumice Stone PARTIALLY MANUFACTURED.-Protests 644586, etc., of James H. Rhodes & Co. (New York). Opinion by Hay, G. A. On the authority of G. A. 7462 (T. D. 33408) pumice stone partially manufactured was held properly classified under paragraph 89, tariff act of 1909. No. 32434.-SCIENTIFIC APPARATUS-CALCULATING MACHINES.-Protest 640819 of A. H. Ringk & Co. (New York). Opinion by Hay, G. A. Calculating machines, classified under paragraph 199, tariff act of 1909, were claimed entitled to free entry as scientific apparatus (par. 650). Protest overruled, the regulations of the Secretary of the Treasury not having been complied with. No. 32435.-RUBBER MOUTHPIECES FOR PIPES-SMOKERS' ARTICLES.-Protest 640640 of Hanover Vulcanite Co. (New York). Opinion by Hay, G. A. Rubber mouthpieces for pipes, classified as smokers' articles under paragraph 475, tariff act of 1909, were held dutiable as manufactures of rubber (par. 463), as claimed. Abstract 28094 (T. D. 32396) followed. No. 32436.-FANS OF STRAW-Toys.-Protest 640030 of I. Strauss & Co. (New York). Opinion by Hay, G. A. Fans in chief value of straw, assessed under paragraph 440, tariff act of 1909, were claimed dutiable as toys (par. 431). Protest overruled. No. 32437.-CARBON RODS.-Protest 601965 of T. Meadows & Co. (New York). Opinion by Hay, G. A. Stegemann v. United States (T. D. 33197) followed as to carbon rods held dutiable under paragraph 480, tariff act of 1909. Protest sustained. No. 32438.-NIGHT LIGHTS-TAPERS.-Protest 631331 of Maurice B. Carlin (Baltimore). Opinion by Hay, G. A. Cylindrical cotton wicks about 54 inches long and of about the same diameter as the ordinary wax taper, both ends of which have been dipped in wax, were held properly classified as tapers under paragraph 436, tariff act of 1909. (T. D. 33434.) Wood pulp and paper-Favored-nation clause. AMERICAN EXPRESS Co. et al. v. UNITED STATES (No. 894). BERTUCH & Co. et al. v. UNITED STATES (No. 895). Free importation is claimed for certain chemical wood pulp and sulphide wood pulp from Norway, Russia, Austria-Hungary, and Germany. The claim is made on the ground that by virtue of the favored-nation clause in existing treaties, when that clause is construed in connection with section 2 (wood-pulp section) of the act of July 26, 1911, entitled "An act to promote reciprocal trade relations with the Dominion of Canada and for other purposes," the merchandise appears as entitled to free entry. It was conceded at the hearing that Canada is a nation for treaty purposes; that there is nothing in the language of the several treaties in question with the several countries to call for any distinctions to be made between the countries represented in the protest; and it was further conceded that said section 2 of the act of 1911 is operative, though Canada refused to avail itself of the option to establish reciprocity as to any other possible importations provided for in other sections of the act. 1. TREATIES AND THE COURTS. By the Constitution a treaty is binding as a law of the land, and since it is the function of the courts to construe and apply the law, it becomes a court's duty whenever conditions arise making a treaty applicable to declare the force and effect of that treaty.-Foster v. Neilson, 27 U. S. (2 Pet.), 253. 2. SAME. Courts may not seek to enforce a treaty which is executory in its character, for legislation is needed to give effect to executory provisions; but courts will as to a self-executing provision in a treaty enforce this whenever the occasion and conditions arise that attach the self-executing provision to existing facts.-Taylor v. Morton (2 Curtis, 453); Bartram v. Robertson (122 U. S., 116); Whitney v. Robertson (124 U. S., 190). 3. A SELF-EXECUTING AGREEMENT. The provision of the favored-nation clause is, "if either party shall hereafter grant to any other nation any particular favor in navigation or commerce, it shall immediately become common to the other party." This provision is self-executing, for the privilege could not "immediately become common" to the other party to the agreement if it depended upon some future act by another or upon legislation to make the provision effective. 4. SECTION 2, ACT OF JULY 26, 1911. Section 2 (wood-pulp section) of the act of July 26, 1911, was enacted with a full understanding that under that section there would be a question for determination whether the provisions of existing treaties with favored nations would attach, and whether by the very force of section 2 like commodities from other nations having the favored-nation clause in treaties are to be admitted on the same terms with the given commodities brought in from Canada. It must be recognized that the favorednation clause has for its field of operation precisely that of cases where and when the lawful authority has granted a new privilege to some other nation. |