UNITED STATES V. LOUIS HINSBERGER C"CT-GLASS CO.

645

UNITED STATES v. LOUIS HINSBERGER CUT-GLASS 00. SAME v. FENSTElRIDR et at (Circuit Court, S. D. Kew York. May 27, 1899.) Nos. 2,751, 2,931.

1.

CUSTOMS DUTIES-CI,ASSIFTCATION-MANUFACTURES OF GLASS.

Plain unground glass blanks, intended to be finished by cutting into dishes for table use, are not "glassware," within the meaning of paragraph 100o! the tariff act of 1897, but are dutiable under paragraph 112, as manufactures of glass not specially provided for.

2.

SAME-GnouND·GLAss BLANKS.

Glass blanks ground on the edge and bottom are dutiable under paragraph 100 of the tariff act of 1897, as "articles of glass, ground," without regard to the purpose for wbieh the grinding was done.

Appeals by the United States from decisions of the board of general appraisers which reversed the action of the collector of customs in assessing duty upon the importations in question. J. T. Van Rensselaer, Asst. U. S. Atty. Albert Comstock, for the importers. . l'OWNSEND, District Judge. The merchandise in question com prises two glass blanks,-one ground, the other unground. The former was classified as an "article of glass, ground," the latter as "blown glassware," and each was assessed at 60 per cent. ad valorem, under paragraph 100 of the act of 1897. The importer protested, elaiming that they were dutiable as "manufactures of glass not specially provided for," at 45 per cent. ad valorem, under paragraph 112 of saill act. The board sustained the contention of the importers, and the United States appeals. The plain unground blank is almost identical with the oval glass blank which was before Judge \Vheeler in the case of u.. S. v. Fenstercr, 84 Fed. 14!l; and Jndge \Vheeler there held (affirming the decision of the board of general appraisers) that these artieles were manufactures of glass, under paragraph 102 of the act of ll'i!l4, as against the classification of glassware under paragraph 88 of the same act. Oonsiderable new testimony has been taken on both sides in the present case as to commercial and common designation. Seven of the trade witnesses testif,y that these blanks are ineluded within the commercial term "glassware." Five of the witnesses, deny statement. Therefore no trade designation is proved. There is much force in the contention of counsel for the United States that the word "glassware" is a comprehensive word, as was held in Rossman v. Hedden, 145 U. S. 561,12 Sup. Ct. 925, and that, as these blanks are articles made of glass, they are glassware in fact, within the dictionary definitions; but, as I am not satisfied that the contention or proof differs materially in character or degree from that which was before Judge Wheeler, I feel bound by his conclusion that said blanks are not glassware in fact, and as to them the decision of the board of general appraisers is affirmed. The other blank is ground on the edge and bottom. There is considerable conflict in the testimony as to the purpose for which the

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grinding was done. Some of the witnesses flaY' that it is the first 't4eglass-cutting operatio.n, for the purpose of saving work for the cutter, and that the value of the blank is increased thereby, while others deny this statement, and say that it is merely done in order to remove defects· in manufacture, or to obviate the danger of the workmen's hands. One: of the witnesses for the importers, however, says, (and I think this. fa,irly shown from the testimony generally)' that its effect is to make the article more salable. Counsel for the importerseontends that congress could not have meant to provide for such an infinitesimal amount of cutting,' and must have intended to cover, by the provision for articles of ground glass, only But tbose wbere the grinding was done. for a permanent the court would not be autborized in thus contradicting the express provision of the statute. Saltonstall v.Wiebusch, 156 U. S. 601, 15 Sup. Ct.. It is clear that tWs: grinding is intentional, and for some purpose;. and as the language of the statute includes all grinda:p.d inasmuch l,lS the bowl is an ing, except for stoppers of "article of glass," ground, r think it is. dutiable under the provisions of paragraph 100, at 60 per cent. ad' valorem. The decision of the board of appraisers as to these blanks is reversed.

EAGLE v. NOWLIN, Collector. (District Court, D. Indlaqa. No.I'i;818.'
!

May 29, 1899.)

INTERNAL REVENUE-TAX ON OI,EOMARGARiNE-DEALERS-KNOWI,EDGE.

Under 1 Supp. Rev. St. p. 505, § a,provlding that "retail dealers in oleomargarine shall pay" a certain tax, and that "every' person who sells oleoin' specified quantities is' a retail dealer, such a dealer is liable to the tax, though he honestly believed that what he bought and sold was butter.

This is an action brought by the plaintiff against tbe defendant, as collector of internal revenue, to recover the amount of a tax assessed against, and collected from, the plaintiff, as a retail dealer in oleomargarine, by the defendant. The plaintiff insisted that be was not liable to tbe tax, and paid the same to tbe collector under protest. The case was, by agreement, submitted to the court for trial on the following agreed statement of facts:
"The plaintiff,John H. Eagle, is a grocer in the city of Indianapolis, Ind., doing b\lSiness at No. 624 Korth Delaware street. That said John H. Eagle bought of. the 'l'hree Friends Oreamery what was sold by. said company as creamery butter, and sold the same to the trade generally, believing at tbe time that it was creamery butter. That he handled these goods for a period of 11 months, beginning with August. 1897. That it was discovered by the revenue officers that the said 'l'hree Friends Oreamery was manufacturing oleomargarine in violation of law, and that the goods bought by sa;id John H. Eagle, and sold as cl:eamery butter, were in fact : That the commissioner of internal revenue thereupon assessed a tax of $44 and a penalty of $22 against him as a retail dealer in oleomargarine, and the revenue collector notified him, the said Eagle, that such assessment had been made, and must be paid within 10 days. asked for .time to present application for abatement of tax and penalty to the commissioner of internal revenue, which time was