Defendant claims that the goods were rightfully assessed as "twine," under clause 336, and has introduced proof tending to show that the goods in question are what is known to the trade as "book" or "pamphlet" twine, used for stitching the leaves of books and pamphlets together, and is also known as "shoe thread," used for stitching boots and shoes. I think the proof satisfactorily shows that linen thread is im ported for use by book-binders, the threads being about the size and strength of the single yarns composing the twine in question, and the proof also shows that linen thread is imported for use by shoe manufacturers, and when imported for such use the threads are laid together, not twisted, and waxed when used. Clause 347 ofReyl evidently intended to specify and enumerate a kind of linen twine, or manufacture of flax, to be used for the manufacture of gill-nets and seines, which was different from the thread and twine described in and covered by clause 336, and from the proof in this case it seems to me there can be no doubt that the goods now in question are the kind of goods which are used by fishermen to make gillnets and seines for the salmon fishery, and the intention of congress undoubtedly was to favor the fishing interest by allowing the importation of manufactured seines, and materials for seines, and gill-nets, at a lower rate of duty than'was imposed upon the ordinary flax thread and twines. It was also contended in behalf of the defendant, upon argument, that the plaintiff was not entitled to recover in this case because the protest only claimed that the commodity in question was "seine twine," while the proof shows that it is "gilling twine." But I do not think that so narrow a construction should be placed upon the protest, as it is clear from the tenor of the' protest that the plaintiff intended to bring the goods within the operation of clause 347 as dutiable at 25 per centum, ancl, whether he called it "seine twine" or " gill twine," would make no difference, as probably they are, for the purposes of this question, convertible terms.
MANDEL et al.
SEEBERGER, Collector of Customs.
(Oircuit Oourt, N. D. IlUnois.
Merchandise invoiced as "onyx columns, vases, and candelabras," and known by dealers in marble and similar material as "onyx marb Ie" or" onyx, " and for which no specific duty is provided in the customs law, is assessable as "manufactures of marble" for a duty of 50 per cent. ad valorem, under Hev, St. U. S. § 2499, providing that a non-enumerated article, bearing a similitude to any enumerated article, shall be dutiable at the same rate as the enumerated article, and if resembling two or more enumerated articles, cbargeable with different rates of duty, the non-enumerated article is at tbp, , same rate as the article wbich it resembles paying the highest duty.
At Law. Action by Leon Mandel and others against Anthony F. Seeberger, collector of customs, to recover excess duty levied upon certain merchandise imported by them.
MANDEL !i. SEEBERGER.
Shuman & Defrees, for plaintiffs. W. G. Ewing, U. S. Dist. Atty., and G. H. Harris, Asst. U. S. Atty., for defendant.
BLODGETT, J. Plaintiffs imported certain merchandise into the port of Chicago which was described in the invoice as "onyx columns, vases, and candelabras," which merchandise the collector classed as "manufiwtures of marble," and assessed thereon a duty of 50 per cent. ad valorem, under clause 468 of Heyl'sArrangement of the Customs Act of .March 3, 1883. Plaintiffs contended that the goods in question were dutiable at 20 per cent. ad valorem, under section 2513 of said act, as "articles wholly manufactured, not otherwise provided for," and insisted that they were justified in so claiming by the decision of the secretary of the treasury of September 28, 1887. An appeal was taken to the secretary of the treasury from the classification and assessment upon the goods in question by the collector, by whom the action of the collector was affirmed. The duties so assessed were paid under protest, and plaintiffs brought this suit in apt time to recover the difference between the duties so assessed and the 20 per cent. which they claim should have been the duty on said goods. It is admitted by the plaintiffs, and the proof shows, that the goods in question are not manufactures of the" onyx" which is known and spoken of as among the gems and precious stones, and usually classed with agates, carnelians, and chalcedonys, but is a stalagmitic formation of lime, resembling, in its chemical composition, and in its structure, the finer varieties of marble. It is known by those dealing in it under the name of" onyx marble," and mainly for brevity, evidently, is often described in the circulars, invoices, and advertisements of dealers in marble and similar materials as "onyx;" the word "onyx," as applicable to this material, being evidently a fanciful or arbitrary name, suggested, probably, by the peculiar veinings and colorings of the stone. I find in the Imperial Dictionary (volume 3, p. 390) the article defined as follows: "Onyx marble-a very beautiful, translucent limestone of stalagmitic for-
mation, discovered by the French in the prOVince of Oran, Algeria, and first brought into notice at the London ExhilJition of 1862. It is used for the man ufacture of ornamental articles."
In'volume 15 of the ninth edition of the Encyclopedia Britannica, article" .Marble," p. 529, this material is spoken of as follows:
"One of the most beautiful stalagmitic rocks is the so-called onyx marble of Algeria. * * * Large depOSits of a very fine onyx-like marble, similar to the Algerian stone, have been worked of late years at Tecali, alJout 35 miles from the City of Mexico. Among other stalagmitic marlJles, mention may be made of the well-known GilJraltar stone. * * * 'fhis stalagmite is much deeper in color and less translucent than the onyx marbles of Algeria and Mexico."
And in volume 17 of the same edition of the Encyclopedia Britaunica, (page 777,) after describing the onyx from which cameos, etc., are cut, it is said:
FEDERAL REPORTER, Vol.
"While one of them was the true onyx of' modern mineralogists, as described above, the other was merely astalagmitic varietyof carbonate of a mineral much softer, less precious, and much more widely distributed than the chalcedonic onyx. yet resembling- it in so far as it also presents a parallel· banded structure. This mineral is known as · onyx marble.' " The proof shows that the material from which the goods in question are manufactured is used for substantially the same purposes as the finer kinds of marble. Its chemical composition is almost identical with that of the statuary marbles, and its general use is in the manufacture of mantels, table tops, clock cases, pedestals or columns, and, in fact, aU varieties of ornamental articles which have been usually manufactured of the finer varieties of marble. There is no specific provision in the customs law for a duty upon "onyx" or a onyx marble," but the proof shows that the onyx from which cameos are cut, and whicn is treated and considered as a gem, is classed for duty by the custom-house authorities among the" precious stones," (480, HeyJ,) at a duty of 10 per cent. ad valoremj and that articles similar to the goods in question, manufactured of marble, are classed as manufactures of marble not specially enumerated or provided for, etc., under clause 468, Heyl, and assessed for duty at 50 per cent. ad valorem. There being no specific duty upon "onyx marble," as such, or articles manufactured therefrom, I am very clear that the collector rightful1y classed the goods in question as a manufacture of marble, and assessed them for duty at 50 per cent. ad valorem., under the assimilating clause, (section 2499, Rev. St.,Y as, if not actually marble, the material more nearly resembles marble in its composition than it does allY other material, while the manufactured goods in their uses are almost identical with manufactures of marble. The issue is therefore found for defendant.
1 Rev. St. U. S. § 2499: There shall be levied, collected, and paid on each and every non-enumerated article which bears a similitude, either in material, quality, texture, or the use to which it may be applied, to any article enumerated in this title, as chargeable with duty, the same rate of duty which is levied and charged on the enulnerated article wbich it most resembles in any of the particulars before mentioned; and if any non-enumerated article equally resembles two or more enumerated articles, on wbich different rates of duty are chargeable, there shall be levied, collected, and paid on such non-enumerated article the same rate of duty as is chargeable on tbe article which it resembles paying tho highest duty; and on all articles manufactured from two or more materials the duty shall be assessed at the rates at which any of its com,ponent parts may be chargeable.
ANGLO-AMERlCAN PORTLAND CEMENT CO. v. SEEBERGER, Collector of Customs.
,( Oircuit OOU'l't, 17.
July 18, 1889.)
Merchandise invoiced as "chalk slags," consisting of raw chalk and It amall proportion of mud, mixed, dried. and kiln burn"d, and afterwards crushed into lumps and used in the. manufacture of Portland cement by grinding to a tine powder, which in itself makes a fair low order of cement. is assessable for a duty of 20 per cent. ad valorem under act Oong. l\'larch 3, 1883, (HeY!'B .Arrangement, cl. 44,) "as cement, Roman, Portland, and all others."
At Law. Action by the Anglo-'American Portland Cement Company against Anthony F. Seeberger, collector of customs, to recover excess duty levied upon certain merchandise imported by them. Shuman &: Defrees, for plaintlff. W. G. Ewing, U. S. Dist. Atty., and G. H. Harris, Asst. U. S. Atty., for defendant. BLODGETT, J. Plaintiffs imported a quantity of what was designated in the invoice as "chalk slags," which the collector assessed for duty at the rate of 20 per cent. ad valorem, under clause 44 of HEyl'S Arrangement of the act of Yarch 3, 1883, "as cement, Roman, Portland, and all others, 20per centum ad valorem." Plaintiffs insisted that said merchandise was dutiable under clause 95, Heyl, as "non-dutiable crude minerals, but which have been advanced in value or condition by refining or grinding, or by other process of manufacture, not specially enumerated or provided for in this act, ten per centum ad valorem;" paid the duties so assessed under protest; appealed to the secretary of the treasury, by whom the action of the collector was affirmed; and brought this suit in apt time to recover the excessive duties claimed to be paid. The merchandise in question consists of raw chalk from the Dover cliffs in England, and mud taken from the bottom of the Medway river in England, the mud being the smaller proportion of the two ingredients; but the proof does not show how much smaller. These ingredients are thoroughly mixed, then dried and bumed in kilns, and afterwards broken -or crushed into lumps of about the size of the ordinary chestnut coal used in this country. This commodity is used by the plaintiffs in this country in the manufacture of what they call Portland cement, which is done by reducing the merchandise in question to a very fine powder, and then thoroughly mixing it with a certain percentage of carbonate of lime. The proof also shows that, in the condition imported, the merchandise in question, by being pulverized, makes a fair low order of cement, like the Portland cement, but it does not set as quickly and is not as hard as the good quality of Portland cement. I do not see how this commodity can be classed as "a non-dutiable crude mineral," and made dutiable under clause 95, as insisted upon by the plaintiffs. Neither of its constituent