and theentryalld passing of this article through the custom-house, are barred by this statute; and that the issue mllst be found for the claimant. There will be an order, therefore, entered, dismissing the libel, and directing the return of the picture to the claimant.
"(OircuitOourt, N. D. IllinoiB. August 1,1887.)
OusTOHS DUTIES-AsSESSMENT OF DUTY-ARTISTS' OOLORS.
An importation of "artists'. colors, " in tubes, composeq of ochre and umber, but elaborately prepared for that use, is not subject to duty under clause8'T of the new tariff index, which provides that ," colors and paints, including lakes; whether dry or mixed, or ground with water or oil, and not specially enumerated; or provided for in this act, 25 per centum ad valorem;" but should be assessed under clause 89, which provides that "ochre and ochre earth, um· ber arid timber earths, and sienna· and sienna earths, when dry, one-half of one:cent per pound; when ground in oil, one and one·half cents per pound."
BLODGETT, J. Plaintiff imported an invoice of painters' colors, commonly known as "artists' colors," in tubes, consisting of preparations of ochres and umbers. Tlie collector assessed duty on them at 25 per centum ad valorem, under clause 87 of the new tariff index. Plaintiff insisted that the goodsin question should have been assessed at a duty of one and a half cents per poun<l, under clause 89 of the new tariff, as ochre andumber'ground in oiL ,The duties exacted were paid under protest; afiappealtaken to the secretary of the treasury, who affirmed the action 'of the and brought, in apt time, to recover the amount' paid. under protest." . The goods in question are preparations of ochre and umber for artists' use, ground in oil, and put up in small Clause 87. under which the duties J:eads lj.S follows: "Colors and paints, including lakes, whether dry or mixed, or ground with water or 'oil, and riot specially enumerated Qf provided for in this apt, 2.5 per centum ad oo'lorem J"while the clau.seunder which plaintiff insists the goods shoull1 'have been ilssessed for duty is asJollows:"Ochre and ochre earth, umber and umber earths, and sienna and siennfl, el;l.rths, when dry, one-half ,of one cent per pound;. when ground in oil, 'one 8:ud one-half cents per potind/' .,The proof shows.that the goods in question are manufactured frolritheordillary ochre alldumber by crushing and washing the ores, and then.;grinding them to;impalpable powder, under muller stones, after are mixed .with poppy oil, or some colorless oil, so as to pro;duce· pigments adapted. to the finest kind of portrait and landscapepaiJ;lting. The ordinary ochre /lnd umber used for commop purposes, such as
painting buildings, utensils, etc., is manufactured by grinding in an ordinar.y paint-mill, and then mixing with oil, without a careful elimination of the /1:rosser materials and impurities, and the complete comminution of the pigment, such as is intended to be accomplished by the mulling stones; and the only question in this case is whether clause 89, which admits ochre and ochre earths, and umber and umber earths, at a duty of one and a half cents per pound when ground in oil, includes these elaborately prepared pigments. It does not seem to me that congress intended to make any distinction as to the care with which the paints in question are prepared for the purpose of fixing the duty thereon. The ochre and umber contained in these tub!'lS is still ochre and umber, notwithstanding the careful preparation which it has undergone to adapt it to the finer classes of painting; and I ca):} only reconcile clause. 87 with clause 89 by reading the former in this way, "colors and pai!lts, .and umber," etc.; otherwise the,ochre and umber of 89 would depend, for the amount of the tafjff.imposed upon them;llPon the care used in. their preparation, while it seems to me the clear pnrpose of clause 89 is to admit ochres and unibers, when ground in oil, at a specific duty of one and a half cents per pound, without regard to the manner in which they are prepared for use. The issue is therefore found for :llie·plaintiff.
BONTE 11. SEEBERGER,
August 1, 1887.)
(Circuit COtW't, N. D. IZlinols.
CUSTOMS DUTIES-AsSESSMENT OF DUTY-"I'HOTOGRAPHIO MOUNTS.·
Enameled cards called "photographic mounts," which have passed through a printing-press. and have printed thereon the name and address of the pho· tographerfor whom they are intended, are subject to a duty of 25 per centum ad 'OalO'l'ern, as" printed matter not specially enumerated or provided for, "uuder clause 384 of the new tariff index.
Jesse A.· Baldwin, for plaintiff. Grallp,tn, H. Harris, Asst. U. S. Dist. Atty., for the collector.
BWDGETT, J. The plaintiffs imported an invoice of photographic cards, ar what are called" photographic mounts," upon which a duty of 25 per centum ad valorem was assessed, under clalJse 384 of the new tariff index, as "printed matter 1;1ot specially enumerated or provided for." Plaintiff' claimed that the goods were dutiable as a manufacture of paper I or of which paper is the component material, not specially enumerated or provided for, at the rate of 15 per centum ad valorem, under clause 388 of the new tariff index. The duties imposed were paid under protest; an appeal taken to the secretary of the treasury, by whom the action of the collector was affirmed; and this suit brought, in apt tinle, to. recover the excess of duties paid.