BEFORE BOARD 3, JULY 13, 1914.

No. 36119.—Antique Bureau.-Protest 727012 of Shreve, Crump & Low Co. (Boston). Opinion by Waite, G. A.

A Chippendale writing desk or bureau of mahogany was held entitled to free entry under paragraph 717, tariff act of 1909, as an artistic antiquity, as claimed.

No. 36120.-DURESS.-Protests 653163, etc., of Hawley & Letzerich et al. (Galveston and New Orleans), and protests 707516, etc., of H. G. McFaddin & Co. (New York). Opinions by Waite, G. A.

Protests overruled claiming duress, the board holding that the fact that in a reappraisement proceeding on merchandise of the same character as that here involved the entered value agreed with the invoice value in these cases, and that the entered value was sustained in said reappraisement proceeding, does not avail the importers in this case in supporting their claim of duress. Van Ingen v. United States (4 Ct. Cust. Appls., 320; T. D. 33520) followed.

No. 36121.-CHARGES CARTAGE.-Protests 715175, etc., of Sobrinos de Izquierdo & Co. et al. (San Juan.)

HAY, General Appraiser: These protests are filed against the action of the collector at San Juan, P. R., in assessing the expenses of cartage of certain imported merchandise from the public warehouse to a near-by public store. The case is submitted and argued in both the brief of the attorney for the importers and that of the Assistant Attorney General upon the letter of the collector. From this, we take it, this letter contains the facts upon which the case must of necessity be decided. Omitting the preliminaries the letter reads as follows:

The onions and potatoes on which this cartage was charged were imported in the Spanish S. S. Balmes, arrived June 27, 1913, from the Canary Islands. Owing to the quarantine against the Grand Canaries all cargo that might harbor rats is required to be fumigated. No accommodations are provided at this port for that purpose and this office has therefore placed at the disposition of the quarantine service certain rooms in the public warehouse where cargo of this nature is placed for fumigation. Owing to the limited quarters available for this purpose, it is necessary to remove the fumigated goods immediately in order to make room for more goods to be fumigated. The cartage in question was incurred in removing this cargo from the public store where it was fumigated to a near-by public store where the goods were held pending final delivery.

This case we think is controlled by the decisions of this Board in Acker, Merrall & Condit Co.'s case, G. A. 5689 (T. D. 25331); Fearon, Daniel & Co., G. A. 6373 (T. D. 27381) and Keveney & Co.'s case, G. A. 2825 (T. D. 15476). In Acker, Merrall & Condit Co.'s case, supra, certain wine was detained for examination under certain provisions of the pure food law, contained in one of the regular appropriation bills, requiring the examination of such merchandise as that which was the subject of the protest. The charge complained of was for storage of the wine pending examination. In that case we held the law to be as follows:

We know of no general provision of the law which would authorize the imposition of the expense of this charge upon the importer and the specific provision quoted above, under which this examination is made, being, as it is, one of several items for which there is a specific appropriation, would leave at least a reasonable inference that the purpose and intention of Congress was that all expense in connection with the examination therein provided for should be borne by the Government. But whether this be true or not we can not see that it in any way differs from the ordinary administration of a public law the expense of which is uniformly borne by the Government, unless there is express provision for imposing this expense upon some party in interest. This case was appealed to the Circuit Court for the Southern District of New York and affirmed. (See United States v. Acker, 133 Fed., 842; T. D. 25812.)

In Fearon, Daniel & Co.'s case, supra, and Keveney's case, supra, it was held that certain fees were properly charged where goods were detained for examination by the Department of Agriculture and permitted to remain in public stores after due notice had been received by the importer.

From the collector's letter in the case at bar it is quite apparent that no notice to remove the merchandise had ever been given to the importer. It is true, as stated by Government counsel in his brief, that in one or two of the letters accompanying these protests the collector says that "the importers had the privilege of carting the merchandise themselves had they so desired and made application to this office." Both from this language and from the language of the collector's letter above quoted, to wit, "it is necessary to remove the fumigated goods immediately," we think it quite clear that no notice was given by the collector. Following the cases above cited the protests are sustained and the collector directed to reliquidate the entries accordingly. No. 36122.-PUMICE STONE.-Protests 707096, etc., of J. H. Rhodes & Co. (New York). Opinion by Hay, G. A.

Protests overruled as to pumice stone classified as partially manufactured under paragraph 89, tariff act of 1909. Gallagher v. United States (5 Ct. Cust. Appls., —; T. D. 34095) cited.

No. 36123.-PROTESTS OVERRULED.-Protests 710756, etc., of Baltimore & Ohio Railroad Co. et al. (Baltimore, etc.), protests 558220, etc., of Standard Knitting Co. et al. (Cleveland, etc.), and protests 635381, etc., of W. Schade & Co. et al. (St. Louis, etc.). Opinions by Hay, G. A.

Protests unsupported; overruled.

BEFORE BOARD 2, JULY 16, 1914.

No. 36124.-WIRE STAPLES.-Protests 731339, etc., of B. F. Goodrich Co. (Cleveland). Opinion by Fischer, G. A.

Staples made of wire, classified under paragraph 114, tariff act of 1913, were held free of duty under paragraph 554, as claimed.

No. 36125.-CALENDARS LITHOGRAPHICALLY PRINTED.-Protest 732326 of Cunard Steamship Co. (Boston). Opinion by Fischer, G. A.

Lithographically printed calendars were held properly classified under paragraph 325, tariff act of 1913, rather than free of duty as "publications of individuals for gratuitous private circulation, not advertising matter" (par. 425).

No. 36126.-NIGHT LIGHTS.-Protest 740027 of B. Illfelder & Co. (New York). Opinion by Fischer, G. A.

Night lights in chief value of wood, classified under paragraph 199, tariff act of 1909, were held dutiable under paragraph 215, as claimed.

No. 36127.-ROOFING FELT.-Protests 730940, etc., of Balfour, Guthrie & Co. et al. (San Francisco). Opinion by Fischer, G. A.

Protests overruled as to roofing felt classified under paragraph 407, tariff act of 1909.

No. 36128.-MASKS FOR CHILDREN-SURFACE-COATED PAPER MASKS.-Protest 721864 of F. F. G. Harper & Co. (Los Angeles). Opinion by Fischer, G. A. Children's masks composed of surface-coated paper, printed, assessed under paragraph 411, tariff act of 1909, were claimed dutiable as manufactures of paper (par. 420). Protest overruled.

No. 36129.-SHEET MUSIC.-Protest 726726-45440 of G. W. Sheldon & Co. (Chicago). Opinion by Fischer, G. A.

Following G. A. 1266 (T. D. 12582) and G. A. 1991 (T. D. 13797) music in sheets was held properly classified under paragraph 416, tariff act of 1909.

No. 36130.-SURFACE-COATED PAPER.-Protests 726767, etc., of F. W. Lutz & Co. (Richmond). Opinion by Fischer, G. A.

Merchandise returned by the appraiser as "paper, surface-coated, blue, suitable for covering boxes," and assessed at 40 per cent ad valorem under paragraph 324, tariff act of 1913, was claimed dutiable as "paper with coated surface or surfaces not specially provided for," under the same paragraph. Protests overruled.

No. 36131.-NEEDLECASES.-Protest 635910-42020 of Marshall Field & Co. (Chicago). Opinion by Fischer, G. A.

Following G. A. 7367 (T. D. 32528) needlecases were held dutiable as unenumerated manufactured articles under paragraph 480, tariff act of 1909, as claimed.

No. 36132.-TUBE-WELDING MACHINE.-Protest 710324 of Davis-Bournonville Co. (New York). Opinion by Fischer, G. A.

Following G. A. 7559 (T. D. 34413) a tube-welding machine was held dutiable as a manufacture of metal under paragraph 199, tariff act of 1909, as classified, rather than as a machine tool (par. 197).

No. 36133.-WIRE ARTICLES.-Protests 715287, etc., of Knauth, Nachod & Kuhne (New York). Opinion by Fischer, G. A.

Following United States v. McCoy (4 Ct. Cust. Appls., 396; T. D. 33838) certain wire articles were held dutiable under paragraph 199, tariff act of 1909. Protests sustained.

No. 36134.-APPLIQUÉD SILKS-VALUE OF FABRIC.-Protest 702315-44300 of Marshall Field & Co. (Chicago).

HOWELL, General Appraiser: The goods in question consist of all-silk woven fabrics, piece dyed and appliquéd. Duty was assessed thereon by the collector under the provisions of paragraph 399, tariff act of 1909, in accordance with the rule laid down by the Court of Customs Appeals in United States v. Ewing & Clancey (3 Ct. Cust. Appls., 333; T. D. 32624). It appears from the special report of the appraiser that in applying the rule laid down in that case the value of the foundation fabric, with the appliqué removed, of the goods represented by item No. 5066 was determined by the appraiser at 97 centimes per meter, and that the value of the foundation fabric, with the appliqué removed, of the goods represented by item No. 5067 was determined at 1 franc per meter, less 2 per cent and 1 per cent. The importers contend "that the appraiser has weighed the silk incorrectly, or the value for the silk stated by him is incorrect," and claim that the goods are properly dutiable at the rate of 60 per cent ad valorem under paragraph 402 of said act.

We find from the testimony of the examiner who supervised the classification of the goods in question when they were before the appraiser for advisory classification that the value of the foundation fabric with the appliqué removed is 2.50 francs per meter.

The collector is accordingly instructed to reliquidate the entry on the basis of 2.50 francs per meter as the value of the foundation fabric, exclusive of the appliqué. If on reliquidation of the entry on this basis it appears that the rate found to be applicable in accordance with the rule laid down in the Ewing & Clancey case, supra, is the rate claimed by the importers, the protest is sustained; otherwise it is overruled for failure to make the proper claim.

No. 36135.-SILK TRIMMINGS.-Protest 677537-43461 of G. W. Sheldon & Co. (Chicago). Opinion by Howell, G. A.

Merchandise returned as silk trimmings and classified under paragraph 402, tariff act of 1909, was claimed dutiable as silk ribbons (par. 401). Protest overruled.

No. 36136.-SILK HAIR NETS.-Protests 564227, etc., of A. C. Frazer & Co. (Philadelphia). Opinion by Howell, G. A.

Protests overruled as to silk hair nets classified under paragraph 350, tariff act of

1909.

No. 36137.-SILK BELTING-FIVE PER CENT DISCOUNT.-Protest 732366-46947 of G. W. Sheldon & Co. (Chicago). Opinion by Howell, G. A.

Certain silk belting was held properly classified under paragraph 316, tariff act of 1913. A further claim for a discount of 5 per cent under subsection 7, paragraph J, section 4, tariff act of 1913, was also overruled, no evidence having been offered to show that the merchandise was imported in a vessel admitted to registration under the laws of the United States. G. A. 7540 (T. D. 34246) followed.

BEFORE BOARD 3, JULY 16, 1914.

No. 36138.-BRAN-SIMILITUDE CLAUSE.-Protests 715387, etc., of Wm. A. Bird et al. (Buffalo).

HAY, General Appraiser: The merchandise in these cases consists of bran assessed for duty under paragraph 480 of the tariff act of 1909 and claimed to be dutiable under paragraph 239 by virtue of paragraph 481. In F. W. Myers & Co.'s case, Abstract 31249 (T. D. 33160), this board held bran to be dutiable as here assessed, but upon appeal the board was reversed upon stipulation and the merchandise held dutiable as here claimed. In subsequent cases this board has held that bran was dutiable under paragraph 239 by similitude, but in each case upon a stipulation of counsel. These cases were submitted upon the record, which in each instance consists only of the protest, collector's letter, and entry. No testimony was taken and no sample offered. The similitude clause of paragraph 481 is one which should be applied with great care and only upon a record which distinctly shows the similarity of the merchandise to that claimed to be applicable by virtue of paragraph 481. From the above history there is no decision of the Court of Customs Appeals wherein the question was at all considered by the court. With such being the history of the decided cases and the record before us as unsatisfactory as it is, the collector's action should not be reversed. The protests are therefore overruled.

No. 36139.-PROTESTS ABANDONED.-Protests 408379, etc., of F. L. Roberts & Co. (Boston), and protests 407462, etc., of Baker Castor Oil Co. (New York). Protests abandoned.

Decisions on Applications for Rehearings.

No. 36140.-REHEARING GRANTED-IMITATION PRECIOUS STONES.-Application by the protestants for rehearing in protest 630384 of American Bead Co. (New York), decided March 27, 1914, Abstract 35288 (T. D. 34355). No. 749. Before Board 1, July 7, 1914.

No. 36141.-REHEARING GRANTED MINERS' SAFETY APPARATUS.-Application by the Government for rehearing in protest 720512 of S. I. Oettinger (New York), decided June 17, 1914, Abstract 35912 (T. D. 34571). No. 772. Before Board 2, July 7, 1914.

No. 36142.-REHEARING DENIED.-Application by the protestants for rehearing in protests 714276, etc., of P. McGettrick et al. (Burlington and Buffalo), decided May 29, and June 3, 1914, Abstracts 35776 and 35793 (T. D. 34521). No. 774. Before Board 3, July 7, 1914.

No. 36143.-REHEARING DENIED.-Application by the protestants for rehearing in protest 497613 of John Rothschild & Co. (San Francisco), decided July 22, 1911, Abstract 26189 (T. D. 31774). No. 328. Before Board 3, July 14, 1914.

No. 36144.-Rehearing DeNIED.-Application by the protestant for rehearing in protest 706314 of John Wanamaker (New York), decided June 5, 1914, Abstract 35803 (T. D. 34548). No. 776. Before Board 3, July 14, 1914.

No. 36145.-REHEARING DENIED.-Application by the protestants for rehearing in protest 703289 of Lewis & Conger (New York), decided June 5, 1914, Abstract 35803 (T. D. 34548). No. 777. Before Board 3, July 14, 1914.

TREASURY DEPARTMENT, July 21, 1914.

The appended decision of the United States District Court for the Southern District of New York is published for the information of customs officers and others concerned.

WM. P. MALBURN, Assistant Secretary.

(T. D. 34653.)

Tea-Read test.

MACY et al. v. BROWNE et al.

1. EXAMINATION OF IMPORTED TEA.

The "Read test," a method used in examination of tea to detect coloring matter, sustained.

2. JURISDICTION OF SECRETARY OF THE TREASURY.

The Secretary of the Treasury, having power under the statute to enforce the provisions of the tea act by appropriate regulations, has required examiners and the Tea Board to use what is known as the "Read test" to examine for artificial coloring or facing matter.

2. COURT OF EQUITY MAY COMPEL OFFICIAL TO ACT.

A court of equity may lawfully be asked to compel a public official to do an act plainly required of him by law, but that official can never be judicially told how to think.

4. BILL DISMISSED.

The bill of complainant must be dismissed for lack of equity, it not being necessary to consider the question whether the "Read test" is a chemical analysis.

United States District Court, Southern District of New York. July 13, 1914.

[Final hearing in equity.]

Joseph H. Choate, jr., for complainants.

William L. Wemple, Assistant Attorney General, for defendants.

HOUGH, District Judge: Complainants lately proffered for entry into the United States at the port of San Francisco certain tea, which the collector of that port rejected as inferior in purity to the established standards because of the presence in the imported tea of certain coloring matter.

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