dation of the duties. if dissatisfied with such decision, give notice' in writing to the collector, setting forth therein distinctly and specifically, and in respect to each entry, the reasons for his objection thereto. Section 15 of the act authorizes the importer to apply to, the circuit court for a review of the questions of law and fact involved in the decision of the appraisers. Thus it will be observed that congress reproduced in the customs administrative act the identical language as to the terms of the protest used in the previous acts, and declared, as explicitly as could be done by language, that in the absence of such notice the decision of the collector should be final and conclusive. It must, be presumed that this was done with the full uuderstanding of the settled judicial construction of the provision under the previous acts of congress, and therefore that congress intended that the importer should be bound by hill own statement of the objections to the collector's decision,_ and should not be permitted to depart from it by alleging subsequently any errors of fact or of law not substantially brought to the collector's attention by the terms of the notice. Congress might have relieved the importer of any such condition as a prerequisite to his recovery if it had seen fitjbut it is plain that it intended only to change the nature of his remedy, without enlarging the previously existing conditions precedent to his right of recovery. It has not been argued, nor could it be with any color of reason, that the protest was sufficient to justify a reversal of the decision of the collector. Neither the board of general appraisers nor the circuit court had any authority to allow the importer to make a new protest, and the> circuit court properly so decided. In reversing the decision of the collector upon an objection not stated in their notice Of dissatisfaction by the importers, the board of general appraisers erred, and their decision waspropedy reversed by the circuit court. The judgment of the circuit court is affirmed.
In re HIGGINS et al.
(Circuit Court of Appeals, Second Circuit.
April 18, 1893.)
CUSTOMS DUTIES-"SORTED" WOOLS-SEPARATION INTO COI,ORS.
The importation of wool separated as to colors Oy entire fleeces, the colors being of different values,' and entered for duty as washed wool of the third class, is not Within paragraph 383 of the tarift' act of 1890, WhiCh imposes double duties upon wool "which shall be imported in any other thilll ordinary condition, o:rwhich shall be changed in its character or condition for the purpose of evading the duty, · · · or which has been sorted or increased in value _by the rejection of any part of the original fleece." 50 Fed. Rep. 910, affirmed.
SAME-EXCEPTION FROM "DOUBLE DUTy"-CONSTRUCTION OF ACT.
The proviso excepting "wools on which duty is asst>.8sed amounting to three times or more 1han that which would 'be a.ssessed if said wool was imported unwashed" from the d\>uble duty imposed by paragrap):J. 383 of the tariff act of 1890 onw-ools sorted in quality for the purpose of evading duty, cannot be restricted to those classes of wool upon which the act assesses duty by the express term "unwashed." 50 Fed. Rep. 910,_
A pppal from the Circuit Court of the United States for the Southern District of New York. E. s. Higgins & Co. protested against an assessment of. washed wools by the collector of the port of New York, and the board of appraisers sustained the protest. The collector appealed to the circuit court, which sustained the decision of the board, (50 Fed. Rep. 911,) and the collector appeals. Affirmed. '1'hos. Greenwood, Asst. U. S. Atty., for appellant. W. "\Vickham Smith, for appellees. Before WALLACE, LACOMBE, and SHUlMAN, Circuit Judges. LACOMBE, Circuit Judge. The tariff act of October, 1890, (26 S1. U. S. p. 594,) divides wool for duty pnrposes into three classes. The firm of E. S. Higgins & 00., on April 2, 1891, made entry of an invoice of washed wool of the third class; srime of it being gray, some yellow, and the rest white. The value of the f,'1'ay and of the yellow was less than 13 cents per pound, of the white in excess of 13 cents per ponnd. The tariff act contains the following para· graphs:
"385. On wools 01' the thlrd class, and on camel's hall' of the third class, the vaille wlH'reof shall be thirteen cents or less per pound, including charges, the duty shall be thirty-two per centum ad valorem. "38G. On wools of the third dass, and on camel's hall' of the third class, the value wlwreof shall exceed thirt<>en cents per pound, Including charges, the duty shall be fifty per cent. ad valorem."
The importers contended that their importations were dutiable, the gTay and yellow at 32 per cent., the white at 50 per cent. The collector exacted 64 per cent. and 100 per cent., respectively, against which the importers duly protested, and the board of appraisers sustained their claim. The collector exacted the additional duty un· del' the supposed authority of paragraph 383:
"The duty upon wool ot the sheep, or hair ot the camel, goat, alpaca, and other like anlmals, which shall be imported in any other than ordinary con· ditlon. or which shnll be chnng-ed in its character or condition tor the purpose ot evading the duty. or which shall be reduced in value by the admIxture of dirt or any other foreign substance, or which has been sorted or increased In value by the rejection ot any part ot the original fleece, shall be twice the duty to which it would be otherwise su'bject: provided, that skirted wools, as now imported, are hereby excepted. 'Wools on which a duty Is assessed amountIng to thr<>e times or more than that which would be assessed It snld wool was Imported unwashed, such duty shall not be doubled on account of its being sorted."
The board of general appraisers found as facts that the gray and yellow wool was worth less than 13 cents per pound; that it had not been chnnged in its character or ccndition for the purpose of evading the duty, nor reduced in value by the admixture of dirt or any other foreign substance; that there had been a separation as to color, (according to a common practice of long standing in the case of East India wools,) which had depreciated the gray and yellow below the av.erage value of the lot before such separation, but that there had been no separation as to quality of these wools. So far as the evidence shows, the separation was in whole fleeces, and none of the wool was "skirted,"-a process which consists in th"
removal of the stabled and inferior locks taken from the belly or legs, and sometimes from the neck. Upon the argument we expressed the opinion that the board of appraisers and the circuit court were correct in their conclusion that the gray and yellow wool was not "sorted," within the meaning of paragraph 383. This word is aptly defined in the return of the board of general appraisers:
"'Sorting,' as usually defined, means that process preliminary to wool manufactming necessary to fit the article for textile purposes, which consists in classifying by separation the fibers of the fleec-E' as clipped from the sheep's body 'according to length, fineness, elasticity, and soundness of staple.' The wool vades in quality in different parts of the animal, as many as twelve or fourteen 'sorts' being sometimes obtained from a single fleece, but frequently not more than from five to seven qualities."
This definition is sustained by expert evidence before the board, and by technical works on manufactures, which they cite. It is in accord with the definition contained in the report on wool and manufactures of wool, published by the treasury department September 6, 1889, and which was presumably known to the framers of the tariff act of 1890. The word is therein thus defined: " 'Sorts:' 'fhe fleeces, broken into narrower and more accurate subdivisions as to fineness; there being several qualities or sorts of wool in the same fleece." The phrase, "which has been sorted or increased in value by. the rejection of any part of the original fleece," in paragraph 383 is coupled with the phrases, "imported in any other than ordinary conditions," "changed in its character or condition for the purpose of evading the duty," and "reduced in value by the admixture of dirt or other foreign substance;" and the provisions for payment of double duty is in the nature of a penalty. In view of the fact that East India wool of this class, as the evidence shows, has always been abroad, separated as to color, and so imported, and of the further fact that, before the act of 1890 was passed, complaint had been made by the wool growers of this country of a practice that had grown up of taking third-class wool, separating the very finest parts of the fleece, bringing them over here, and getting them through the customhouse as carpet wool, and then using them for the purpose of making clothing, there is additional warrant for the conclusion that congress used the phrase "sorted wool" with the meaning understood by wool dealers, viz. a breaking up of the fleeces to obtain a subdivision into grades, and not a mere separation by whole fleeces into colorfl, each fleece still containing the separate sorts of wool of which it was composed when sheared from the sheep's back. There was no warrant, thereffire, for classifying the gray and yellow wools here imported as "sorted," and therefore the double duty upon them was improperly exacted. It is conceded that the white wool was not only separated by color, but also sorted in quality. As such, it would be liable to the double duty imposed by paragraph 383, except for the proviso which excepts "wools on which a duty is assessed amounting to three times or more than that which would be assessed if said wool was im·
IN RE WERTHEIMER.
ported unwashed." The board of appraisers found as a fact that the duty already assessed at 50 per cent. ad valorem on the white wool amounted to more than three times the amount to which it would have been subject if imported unwashed. We find nothing in the record to call for a review of this finding of fact, and, it being a fact, there was no warrant for the imposition of the double duty. In the argument ab inconvenienti advanced by the district attorney we do not find sufficient ground for restricting the proviso to those classes of wools (first and second class) upon which the statute assesses duty by the express term "unwashed." If thirdclass unwashed wool were imported, it would pay a duty easily ascertainable by multiplying the valuation by the ad valorem rate, W'hen the statute also provides that, if the duty on the same wool washed is three times what it would be were the wool unwashed, there shall be no doubling on account of its being sorted, the language is plain and comprehensive of all wools, and there is no reason why it should be construed to have a different meaning from that which is expressed upon its face simply because it may not be convenient to ascertain the value of unwashed wool of the same class and grade as washed wool. The board of appraisers did not find the task impossible, and presumably the collector would have found it no more difficult. Arthur v. Pastor, 109 U. S. 139, 3 Sup. Ct. Rep. 96. The decision of the circuit court is affirmed.
In re WERTHEIMER et aL
(CircuIt Court ot Appeals, Second Circuit. April 18, 1893.)
CuSTOMS DUTIES-CUMULATIVE DUTTES-MEN'S PRICK' SEAM GLOVES.
The tariff act ot October 1, 1890, par. 458, imposes a duty of 50 per cent. ad valorem on men's leather gloves, and then provides that, "in addition to the> above rates, there ;;hall be paid on all mC'n's glovps, $1.00 per dozen; on all lined gloves, $1.00 per dozen; on all pique or prick-seam gloves, $.50 per dozen," etc, Held, that these additional rates were alternative, anrl not cumulative, and that, it the same article was included In two or more classes, it need only pay the rate applicable to the highest ot those classes. 50 Fed. Rep, 67, affirmed.
Appeal from the Circuit Court of the United States for the Southern District of New York. This was an appeal by Wertheimer & Co. from a decision of the collector of the port of New York, ascertaining the duty on mpn's leather gloves imported by them. The circuit court reversed the decision of the appraisers, (50 Fed, Hep. 61,) and the United Htates appealed from that decision. Affirmed. Henry C. Platt, Asst. U. S. Dist. Atty. W. Wickham Smith, for appellees. Before WALLACE and SHIPMAN, Circuit Jndges. SHIPMAN, Circuit Judge. Wertheimer & Co., on October 15, 1890, imported into the port of New York an invoice of men's leather pique or prick-seam gloves. The collector, deeming them to be also