FEDERAL REPORTER I
vol. 49.
duty than thatinfposedbythe colleotor,but that it must be decided on the protest ofthe imponel'S, the only question being whether the importers were right in claiming, Rsthey did, on the grounds they did by their 'protest. Although they claimed a lower rate of duty, and the third clause imposed the same rate, still the court held that that was the question to be deoided; and that is the question to be decided here. I must fellow that,case, and 'decide here that the importers were wrong, and the collector right, upon the questions made by the protest, and that he assessed the proper 'tate of duty; and that reverses the decision ofthe board of generall1ppraisers. I follow that case as an authority, andibecll.use I think it is, tight. I think that is the meaning of the statute. 'The decision oHhe board of; general appraisers is therefore reversed, and the decision of the collector· affirmed.
h re,r',.BtUMgNTltAL et ttl. (CffcUCt
Court; S. D. New
Yor1c. January", 1899.)
CUSTOMS DU1'tE!!-CLA88Il1'tCA.TION-COLORED l'ENOtLll-BClIOOL CRATONI.
': '., Penoils atwood from foul'.to seven inches in len/rtn, ftlledwith material of various colors, and known in trade and commerce as "colored penciis," aud often especIally since March 8, 18S8, as "school crayons," are dutiable under Schedule it Of.th.e tarlft act Of March 8\ 1883,. (Tsrift. Ind., New, 478,) as. "pen.cUs of wood fl lied .. . . lead or other msteriah? at 50 cents per gross, sI\d 80 per cent. ad ValOT6m, and not. under the same (Tarift Ind., New, 423,) as "crayons of all kinds, II at BOller cent. ad valorem. i. '. .
At Law. Application by the importers, Blumenthal & Boas, under the provisions of·section 15>'of the act of June 10,1890, entitled "An act to simplify the laws in)relation to the collection of the revenues," for a review by the United States circuit court of the decision of the board States general appl1liserB8tthe pQrt of New York, affirming the idecision of the collecto1";ofsaid port in the classification for duty of certain 'merchandise entered by the said importers in July, 1890, which was classified by the collector as "lead-pencils;" and duty assessed thereon at the rate of 50 cents per gross and 30 per cent. ad valorem, underthe provisions of Schedule N;. tariff act of March 3, 1883, (Tariff Ind., New, 473.)' Tbe importers duly protested, claiming that the merchandise was "C1'&yons'," and dutiable' only at 20 per cent. ad vq,lorem, under Schad· ule N ofsaid·f,ariff act, ('fariff,Ind.,.New, 423.) The board of United States general appraIsers affirmed the decision of the collector, finding, among other things, that "the articles in question are small sticks of col· ored: composition incased inwood. They arecomInonlycalled ·colored pencHsl "urid "are,not known by the commercial designation of' crayons.' " T.be an order from!the circuit court under the provisionsiof said act of congress, requiring, the board of United States gen:eral appraisers to file their return in sai!d' :court t and, after filing of the
IN RE ·BLt1MENTIlAL.
227
same; procured taking of further evidence the case' before one ofsaid board of general appraisers as an officer of the court. Under this QPdet testiniony' was. tlikenon behalf' bf the im porters, .and also in ·behalf of the government. 'It was shown that the merchandise in question consisted of small pencils: Of wood, coming in different lengths from four to seven inches,andcontitined in paper boxes holding half a dozen of the little pencilseacli·. \The importers' main contention was that, at the time of the passage of the tariff act or March 3. 1883, these articles were generally known in trade alld commerce in the United States as "crayons," or "school crayons,Uand, to sustain thisproposition, they offered the testimony of numerous trade witnesses. Theyalso proved that the articles \vereused chiefly by children in school fMdra wing or coloring of maps and engravings, and that thl'Y were also used and sold as a sort of toy. The importers also proved that several of the leading domestic manufacturers of this class of goods had made the same article to a limited extent before 1883, and very largely during the sueceedingyears, and described it in their catalogues and upon the paper boxes as "school crayons." On behalf of the government, testimony was introduced showing that the articles were manufactured, as were all other colored pencils, from wood which was cut into the proper lengths, rounded and smoothed, divided in halves, grooved and filled with a colored composition composed of coloring matter, kaolin, and some fatty substance; that the halves were then glued together, and the article was polished and put up for the marketj that all colored pencils were made in this way, with differences in the grade of the coloring matter which was used and in the finish of the goods. Anum ber of trade witnesses were also proQuced by the government, who testified that they had known the article in question in March, 1883, and prior to that date, by the name of "colored pencils," and that they were bought and sold in the trade at that time and since by that designation. Several of the witnesses admitted that during the past four or five years these articles were sometimes called for and known in trade as "school crayons," but that their general designatioIl was "colored pencils." Testimony was also produced by the government showing that at the time of the passage of the tariff act of March 3, 1883, there was a well-known article in trade which wept by the name of" crayons," and that it was composed of chalky material, coming in different sizes, shapes, and colors, generally without covering, sometimes covered with paper, and occasionally enameled, and that such an article was the one commonly known in trade at that time as "crayons," and not the article in suit. Hartky c:fc Coleman, for importers. Edward M''ttchell, U. S. Atty;, and JametJT. Van ReTl88elaer, Asst. U. S. Atty. WHEELER, District Judge. The tariff act of 1888, Schedule N, "Sundries," 423, laid a duty on "crayons 01 all kirids," and 473 a higher duty on "pencils of wood filled with lead or other material." The arti- . cles in question are pencils ()f wood filled with crayon material,
in
228
I'EDERAL REPORTER,
in the trade, noW' sometimes: called "crayons. This, higher duty is laid upon these specific things pa,rticularly described. The nature of them is not changed, and they none the less remain tl;ll:lSe speQific things by being sometimes, or even generally. called sqmething else. If these are wood pencils,fiUed with crayon material., they are none, the less pencils of wood filled, and dutiable as such. This is in accordance with the cases of Arthur v. Lahey, 96,U. S. 112; De Forest v.Lawrence, 13 How. 274; Maillard v.Lawrence, 16, How. 261; Robertscm v. Perkirl8, 129 U. S. ,233, 9 Slip. Ot. Rep. 279; and Robertson v. Glende:n,ning, 132 U. S. 158, 10 Sup. Ct. Rep. 44. ,In each of these cases ther,e was a specific, description which left no ropm for trade pames. ,. They decide that where an aot ofcqngresslays right qold of a thing, anq says that that particular thing shall have a duty upon it thus and so, whep it is that thing the duty cannot be got rid of by calling it something else, or giving it some other name. Looking at this evidence carefully I it does not appear to me clear they have got to calling thesetl;lings so universally "crayons " that we can say, as matter 'of fact, that the trade name is "crayon," they are known as "pencils." Much less were they known as "crllyons" in 1883, at the passage of this act. As they are filled with crayon material, there is some proprietyin using the name "crayonj" but)f they are of wood, and filled, with that Qr other material, they would still be pencils of wood.., although thew9Qd,with\lut any material, would pot be a pencil. The decision of the'l;>oard of United States general appraisers is affirmed.
In re BLUMLUN et al, (Ow-cuit
.....
'
,
D. Ne'!VYork. 'Janu8t;Y .'?,
' "
OUSTOMS DUTIES":""TARIlI'll'OF 1883-CLA.ssrirr61TIoN-SuMA'1:rt.&. LEAF TOBACCO. UnstemIileli'Sumatra leaf, tobacco OODsistell of '37 'bales, compOsed, as to marks , and nUlllbers, of,t.4ree lots,tb.e tQ1:J,,"ccobei,ng in t'be manner in \\j,hich weighed by the Umted welg-her upon arrIval; Buma.tra tObacco IS one bale in ten being sent to'the appraiser's' stOres for examination,'and being there examined,by the United, Sta1jes, examiner by opening eaoh of the sample bales in the usual manner employed ihIIiaking such examination!! in the tObacco trade, and ten haudsbeing withdrawn 'froID, each sample by the examiner" ,and found w'cOWli!lte,ntirely of leaves suitable in size and fineness of texture for cigar wrappers; and the h'a11ds being the and the leaves couIit;ed, and the propOr1lionof hatl.dil'ctmtammg lea.vesrequlrmg more ,than' 100 to weigh a pound, and thaH +pO Fo, the P,ound; being, ascertained and separated; alld 'the same' proportIons b-eingcaloulated upon the sample bale and upon the lot represented by such sample bale;, such proportion of 20 per cent. of the ,tobacco found to be. of consisting, .in thl\case of tlle leavesl'eqoiring mO're tbari'l00'tQ weIgh a 'pound, and 80 pill' cent. ofleaves less than 100 to the pound; in the second lot, of 18 bales, all of the hands being found to contain leaves requiring less than 100 to the pound; in the third lot, of 9 bales,60 per cent,. contain lea,ves requiring more than 100 to the ',pon,nd, a n d40,per,cent;oontli,i,nm g le, less 'llhan ,100 t,o :th,e P,ound; and the ,duty being thereupon the at the rate of 75 , cents per pound upon the pro!tOi'tion contal/nng leaves reqUlt'mg.lllore than 100 to the pound and 35 cenU!t)er poulld upon"the proportion consisting, of leaves less than 100 th,e .pound,: that ,collector, in
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