IN RE KURSHEEDT MANUF'G CO.
The court is of opinion that the indictment fails to charge an offense against the laws either of the United States or the state of Texas. The view taken by the court of the questions already discussed renders it unnecessary to consider other objections urged by defendant in support of his motion. The motion to quash the indictment will be sustained, and it is so ordered.
In re KUnSHEEDT MANUF'G CO. (Circuit Court, S. D. Xew York. January 5, 1893.)
CUSTOMS DUTIES-CLASSIFICATION-LENO CI,OTII.
So-called "leno doth," being dyed cotton goods, imported in pieces about 40 yards in length by 42 inches in width, the material being woven so that about one-half the width was plain and the remainder a more or less open-wol'k pattern giving the so-styled "lena effect," and one edge of the fabric being turned over and sewed down by machinery, forming a hem of about 3 inches in width, helrl not properly dutialJle as classified by the collector of the port of New Yorl" as partly made cotton wearing apparel, at 50 per cent. ad valorem, under paragraph 349 of schedule I, of the tariff act of October 1, 1890, but held, further, that, as the proofs in the case showed uncontradicted that the material, because of the peculiarity of the weave, gave a ditl'erent count of threads to the square inch in different parts of the fabric, the plain and open-work parts, and the larger portion of the cloth, containcd less than 200 threads to the square inch, therefore the merchandise was not dutiable at 45 per cent ad valorem, under paragraph 348 of the same schedule and act, as claimed in the importer's protest, and the classification by the collector must stand.
Appeal by the collector of customs of the port of l'\ew YOl'k from a decisioJl ·of the 1J0ard of United States general appraisers reversing the decision of collector and sustaining the protest of the importer, the Kursheedt Manufacturing Company, respecting the classification for duty of certain blackdyed cotton goods known as "Leno Cloth," imported in pieces of about 40 yards in length and 42 inches in breadth, the greater part of the material in width being a plain fabric, and tlle other part consisting of certain openwork patterns or effects produced by separating and grouping the threads in the process of weaving, one of the edges being turned over and sewed down by se\ving machine, making a plain hem of about 3 inches in width. The collector classified the merchandise for duty under paragraph 349 of the tariff act of October 1, 1890, which, so f,u' as applicable, is as follows: "349. Clothing', ready made, and articles of wearing apparel of every deof cotton or scription, handkerchiefs, and neckties or neckwear, other vegetable fiber, or of which cotton or other vegetable fiber is the component material of cllief value, made up or manufactured, Wholly or in part, by the tailor, spamstress, or manufacturer,-all of the foregoing not specially provir]erl for in this act act, fifty per centum ad valorem." Tlw importers protested, claiming that their merchandise was dutiable at 45 per cent. ad valorem as colored cottons, valued at over 15 cents per square yard, under paragraph 348 of the same tariff act, which, omitting immaterial parts, is as follows: "348. Cotton cloth, * * * exceeding two hundred threads to the square inch, couDting the warp and filling, * * *: provided, that on all such cotton cloths, * * * dyed, colored, stained, painted, or printed, valued at over fifteen cents per square yard, there shall be levied, collected, and paid a duty of forty-five per centum ad valorem." The board of United States general appraisers decided that the leno cloth in question was not in the form of a garment, and was not known as wearing apparel, but was a "countable cotton cloth," . The protest of the importers
was accordingly sustained and the decisIon of the collector reversed. The collector appealed to the circuit court, where the testimony of several witnesses was taken in behalf of the government, tending to show that the mercbandise in question was used almost exclusively to be made up into women's aprons, Skirts, and dresses, requiring from a yard and. a balf to five yards for eacb garment, and that the broad bem wbicb was on the goods was a part of tbe garments when finished. The evidence of an examiner ill the appraiser's department of tbe custom house was also taken, who had made a count of tbe threads to the square inch in different parts of the fabric constituting the warp and filling, and who found in one part where the tbreads were crowded togetber, 228 tbreads to the square inch; in another part of the open work, 185 threads; and in the plain portion of the fabric, 1(;9 threads to the square inch; the count in each case being made by cutting out a square inch, and unraveling the threads therefrom.
Edward Mitchell, U. S. Atty., and James T. Van Rensselaer, Asst. U. S. Atty., for collector and government. Alex. E. Kursheedt, for importer. COXE, District Judge, (orally.) This appeal fairly presents two questions for the court. The first is whether or not the importation is wearing apparel. Upon that proposition I think the respondent is correct. I do not believe that putting a hem upon a piece of cloth makes it "wearing apparel made up or manufactured wholly or in part." The other question relates to the efficiency of the protest. The protest specifically points out, as the section under which these goods should have been classified by the collector, paragraph 348 'of the tariff act of 1890. That paragraph, so far as it is necessary Ito refer to it here, provides for a duty upon "cotton cloth not bleached, dyed, colored, stained, painted, or printed, exceeding 200 threads to the square inch," etc. The proof presented to this court is not disputed that a great portion, and by far the larger portion, of the imported cloth contains less than 200 threads to the square inch. Only a very small part thereof exceeds 200 threads to the square inch. Therefore, it seems to me that the importer was wrong in pointing out section 348. The only question here is whether or not the goods should have been classified under that section; not whether the collector is right, but whether the importer is right. They could not have been classified under that section, for the reason that they do not contain threads exceeding 200 to the square inch. The collector was not required to look elsewhere than to the particular paragraph pointed out by the protest. The decision of the appraisers is reversed.
In re DOWNING et al (Circuit Court of Appeals, Second Circuit. June 15, 1893.)
CUSTOMS DUTIES-COMMERCIAL DESIGNATION-VERMILION RED.
'1'he tariff aet of 189U Imposes a specific duty of 12 cents per pound on "vermilion red, and colors containing qUicksilver." Genuine vermilion red contains quicksilver, and there Is an imitation of this color which contains none. It appeared tbat at the date of the act both the genuine and the spurious were known and desib'TIated coJUmercially as "vermilion red." Held, that the imitation was subject to the same duty as the genuine, and was .not dutiable under the provision of the color