IN RE DUNCAN.

197

LACOMBE, Circuit Judge, (orally.) The case seems to be wit4in the principles of Passavant v. U. S., 148 U. S. 214, 13 Sup. at. Rep. 572. Motion granted
In re DUNCAN. (Circuit Court, S. D. New York. June 27, 1893.) DUTIEs-TARIFF ACT OF OCTOBER I, 1890-SUGAR WAFERS-CLAssm·

CUSTOMS CATION.

Sugar wafers which are made by biscuit makers of flour, sugar, milk, and eggs, flavored with vanilla, and are used exclusively as articles of table food, are not dutiable at the rate 'tlf 20 per cen1Ju.m ad valorem as manufactured articles, under the provision for such ar'ticles contained In section 4 of the tariff act of October 1, 1890, (211 Stat. 613,) but are free of duty, as "wafers unmedicated," under the provision for such wafers contained In paragraph 750 (free list) of the same tariff act, (26 Stat. 610.)

At Law. Appeal by importer from a decision of the board of United States general appraisers.
One John P. Duncan, doing business under the name of John Duncan's Sons, imported on April 16, 1891, by the Majestic, fJ;om a foreign country into the United States, at the port of New York, certain so-called "sugar wafers." These wafers were classified for duty as nonenumerated manufactured articles under the prO'Vision for such articles contained in section 4 of the tariff act of October 1, 1890, (26 Stat. 613,) and duty at the rate of 20 per cent. ad valorem, the rate specified for such articles by that section, was exacted thereon by the collector of customs of that port. Against this classification and this exaction the importer duly protested, claiming that these wafers were free of duty, as "wafers unmediC'dted," under the provision for such wafers contained in paragraph 750 (free list) of the same tariff act, (26 Stat. 610.) Upon the receipt of this protest the collector, pursuant to secticn 14 of the customs administrative act of June 10, 1890, (26 Stat. 137,) transmitted the invoice of these articles, and all the papers and exhibits therewith, to a board of three UD!ited States general appraisers on duty at this port. rrhe board of general appraisers, having taken evidence, overruled the protest of the importer, and affirmed the classification and the exaction made by the collector. The importer being dissatisfied with the decision of the board of general appl"aisers, applied, pursuant to section 15 of the customs administrative act, to the United States circuit court for the southern district of New York for a review. of the questions of law and fact involved therein. In compliance with an order granted upon such application the board of general appraisers made its return to the circuit court, and thereafter further evidence was taken in that court. the evidence accompanying this return, and from the further evidence taken in the circuit court, it appeared that these articles in suit were made of flour, sugar, milk, and eggs, and were flavored with vanilla extract. That they were used exclusively as articles of table food, being of a delicate and luxurious kiml; were ffinde oniy by IJiscuit makers. and were classed in the line of biscuits. That they were known in the trade as "sugar wafers," or, more specifically, as "vanilla sugar wafers," the word "vanilJa" indicating that they were flavored with vanilla extract; and that, while they contained no element of medicinal material, being in fact unmedicated, they were never known in trade and commerce as "wafers unmedicated" or "unmedicated wafers." That there were articles known among druggists and physIcians as "merlicinal wafers," which consisted of a thin wafer of wheat flour, were brittle when dry, but became flexible and plastic when dipped in and whi<'h were used to envelop nauseous medicines when administered to persons. That there were articles made from the same ma-

FEDERaL REPORl'ER,

vol. 57.

,teJ.1al!J,' and similar in fU!l '\'I1'afers, whic1l were llSed for sacrawe,qta1,pulllOileS. That there were other articles from the same mao terials', and' in thin sheets,lmown to' confectioners and bakers as waters, and used by confectioners to prevent sticky candies' from adhering to each other, or to anything with which they might come in contract, and by bakers as a foundation on which cakes and macaroons were placed and bake(l; and that there were still other articles known as wafers, and used In sealing letters and other documents. That these medicinal wafers, these sacramental waters,' these Confectioners' and bakers' wafers, and these sealing waters were all in fact 1lllmedicated, though neither variety of these waters was known to trade and commerce as "wafers unmedicated" or "unmedicated waters." That the term "wafers unmedicated" or "unmedlcated waters" was not a trade or commercial term; and that there were articles contalnlng-medicines or supposed medicines, and used for medicinal purposes, that were Jmown to druggists as "medicated waters," such as cough wafers, bronchial wafers, worm wafers, and other' wafers. Oomstock & Brown, (Albert Comstock, of counsel,) for importer.

Edward Mitchell, U. S.Atty., and Thomas Greenwood, Asst. U. S. Atty., for collector.

LACOMBE, Circuit Judge, (orally.) These articles are in fact unmedicated. That is not disputed. They are know in commerce as "wafers.'" That also, I understand, is not disputed. Not only are they known as "wafers," but they are wafers, within the diction· ary meaning of the term. That has no new meaning either. It is a meaning of the word evidently centuries They are there· fore within the. express phraseology of. paragraph 750, and, though it may seem strange that congress should make this particular food product free, it is not for the court to substitute its own guesses as to what the intention of congress may be, when the language which they have used is so plain upon its face as this phrase is. I shall therefore reverse· the decision of the board of appraisers, and direct the classification under paragraph 750, free.

YOM OLEFF et al.

Collector. York. July 24, 1893.)

(Circuit Court,S. D.

CUSTOMS DUTIES---cCONSTRUCTION OF STATUTES-MEANING OF PHRASE-PROVINCB OF COURT AND JURY In the constmctionof tariff lawfl the Ord:Ullry meaning of a phrase in

common speech is a question of law for the court; the commercial meanIng is a question of fact for the jmy.

At Law. Action by Robert Vom Clefi' and others against Daniel Magone, collector of the port of New York, to recover duties paid ander protest. Verdict was given for defendant. New trial or· dered. Comstock & Brown, for plaintiff. James S. Van Rensselaer, Asst. U. S. Atty., for defendant. LACOMBE,Circuit .rudge. I have reached the conclusion that there should be a new trial of this case. The jury were correctly