FEDE'RAL REl'bRTER',-vo1.49.

In re

SliERMAN

et al.

(OW'cuit Oourt, S. D. New¥ork. January S, 1892.),'
1. CUSTOlllSDUTIEs...ADMunSTJlATIVllI OtiSTOJlS ACT oli' JUNB Oll' PROTBST.· .' '.,

..to,

A protest; made within the 10 customs aot of.June 10, 1890, tion of that time, be amelj.d6jl.

by section. 14 of the a.dministrativ.e St. p.1SI,) cannot, after theexpira:

1892-AlIlENDMBN'I' " '. .

I. ,

SAMB-PROTES-r..:.DBOISION'UNDER.

In a elise ai'isilj.g under,this aot, In Which neither the classification for duty by a in a collector of customs of imported merchandise under a provision agraph of the tariff act ot October I,' 1890, (chapUlr!244, 26 St. p. 567,) nor the classification thereof,olaimed under' another proviSion,' contained :ilj. another paragraph protest, .is the correct and legal elassifioat10n, a decision of a, boa.rdof United. S'tates general appraisers olassifying this merchandise under a thirdprovisioli,ooI1tBined In a third paragraph,:wU1:be reversed, and the deeis.ion collector affirmed, by a United States cjrcnit. cQurt, reviewing suob. decision ohuch board, even though the rate Of duty p,rescribed by suoh third graph 'tie 'the ,SJmUil as that Olaimed in the aforesaid protest. : ,
", ;j

At Law .j: :Applicationfor a review of the decision ola board of United States general appraisers. On OctobEu' :6; ,189(); Sherman,; Cecil,& Co;, -imported by the La Champagne, from a foreign country into the United States at the port of New York, certain cotton cloths called "Swisa8pots" and'" Sprigs." These cloths had certain raised ornamental figures thereon of the kinds indicated by 'the words " spots" and'} sprigs, " and were classed for duty as "articltlS embroidered by hand or machinery," under' the provision for "embroideries' . .* and,.?!'" i ,* *, articles embroidered bX hand or machinery," contained in Schedule J; of the tariff act of October 1; l890,:(N. T.378;)and duty at the rate 60 per cent. ad valorem was· exacted 'thereon by j the collector of customs at that ;port. Against this classification and this exaction;, Sherman, Cecil & Co., within the 10 days specified by !lection 14 of the administrative customs act of June 10,1890, <chapter 407, U. S. St. p. 131,) duly protested to the collector, claiming, that the goods were dutiable at the rate of 40 per cent. ad valorem as " bleached cotton Cloths counting over' 100,threads, and unto inqh, l.\n.d valued, at over 10 cents per clothS contained in Schedule square yard, under the provision for I, (N. T. 346.) Thereafter the board of United States general appraisers took certain evidence, by which it appeared in brief that these cloths were not embroideries, and that the ornamental figures upon them, which the collector held rendered them" articles embroidered," etc., were not embroidered thereon, as the terms" em broideries" and" embroidered" were understood in trade and commerce of this country. The board, on March 31, 1891, (S. 11,027, G. A. 470,) decided that upon this evidence these Cloths were not dutiable at 60 per cent. ad valorem, as "articles embroidered," etc., under the provision for such articles contained in Schedule J, (N. T. 373;) that, upon the authority of Robertson v. Hedden, 40 Fed. Rep. 322, these cloths were not dutiable at the rate of 40 per cent. ad valorem, as countable cotton cloths, etc., under the

225 provision for such clothilconUtined inScheduleT; (N. T.346,) as claimed in the protest in this case, but were dutiable at the rate of 40 per cent. ad valorem, as "manufactures of cotton,". under the provision for such manufactures contained in the schedule, (N. T. 355;) and that the entry of these cloths should be reliquidatedaccordingly. Thereafter the collector applied to the United States circnit court for this district for a review of this decisi{)n. The case was thereafter tried by the circuit court upon the evidence taken by the board of general appraisers, and the only questions raised by either side· were questions of law, and involved (1) a motion, made on the day of the trial, by the .import., era, to amend their protest to accord with the decision of. the board of general appraisers, or by adding thereto a claim in effect that the cloths in suit, if not liable atAO per cent. ad 'Valorem, as "bleacbed cottons," etc., under paragraph 346, were dutiable at that rate, under paragraph 355 of said act, as " manufactures of cotton not specially provided for;" and (2) the decision of the Doard of general appraisers that these cloths were dutiable at 40 per cent. ad valorem, as "manufactures of cotton not specially provided for," under the provision for. such manufactures, (N. T. 355,) and that the entry of these cloths should be reliquidated ao. cordingly, notwithstanding no such claim had by the importers in their protest as served upon the collector. . William Forse Scott, for importers. ., Edward Mitchell, U. S. Atty., and Tlwma8 Greenwood, Asst. U. S. Atty., for WHEELER, District JUdge. In this case one question is as to amending the protest. I think'it is very clear that that cannot be done,because it would be making a new protest. The protest must be made within the 10 days specified by section 14 of the act of June 10, 1890, (chapter. 407, 26 U. S. St. p. 131.) As those 10 days have elapsed, that ,cannot be done. Another question is on the point raised by the protest. If the collector assesses duty under' one. part of the statute, and the ilnporter claims by ,protest that it should be another duty, under another part of the statute, tbenthe case goes to a board of three general appraisers. Under the old law, in such a case, the only point was whether the importer was right in that. Davies v. Arthur, 96 U. S. 148. If he was, then the duty. was to he changed accordingly; if not; not. But here the board ofgeneral appraisers said that it carne under a third part of the law; that is,they did not decide that easel. hut decided another case, for that made another case under the tariff law. Precisely the same question was raised in a case before Judge LACOMBE. In re Austin, 47 Fed. Rep. 873. There the protest was from an assessment under one clause of the statute, and the importers claimed that the assessment ought to.beunder another clause of the statute. When it got into this court the court thought it oughUo have been under a third clause. justaa the board of general appraisers here thought it ought to have been under a third clause. But the court decided. that they could not go toathird clause, although the third clause imposed a lesseNate of v.49F.no.3-15

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