chandise may be released. Article 896, Customs Regulations, 1908, meets this situation by empowering the collector to do so upon approval of the general appraiser or Board of General Appraisers before whom the question is pending by virtue of an appeal duly made.

The statement in the petition "that samples duly authenticated may be substituted for the public-store cases in reappraisement hearings seems to have been the opinion of the courts in various cases," is precisely in line with the holding of this court in the Tilge case; but the samples must be "duly authenticated." They must be authenticated by being selected from the importation and approved by the appraising officer having jurisdiction of the case and delivered by the importer in this country, who is under bond to so deliver them whenever duly demanded.

The petition further contends that if section 2901, Revised Statutes. is held mandatory and jurisdictional, that waiver and consent can in no sense be substituted for any of the requirements. There was neither waiver nor consent asserted in these cases. Due and strict observance of the statutory requirements in the absence of waiver, stipulation, or consent was the only issue presented and the only matter decided. This court, however, assumed in its opinion the validity of T. D. 10355, which expressly provided for the due substitution of samples in the place of the public-store packages or the packages the subject of reappraisement. That doctrine has been expressly approved by the highest court. Converse v. Burgess (18

How., 413); Origet v. Hedden (155 U. S., 228).

The rule, however, that jurisdiction can not be waived, and that consent can not confer jurisdiction, is in its strictness confined to jurisdiction of the subject matter and the parties, sometimes not to the latter. The rule is not always the same where jurisdiction is a matter of procedure when the subject matter and parties are properly before the tribunal.

The courts have held that procedure to acquire jurisdiction of the parties may be waived by the appearance of the parties themselves. This is true even in tax sales and other procedure in invitum. The mandatory procedure to acquire jurisdiction of the person is waived by voluntary appearance. When a method of procedure is made. jurisdictional by reason of being mandatory, there are innumerable decisions supporting the doctrine that such jurisdiction may be waived and the legal requirement stipulated.

The criterion between mandatory and directory statutes is that the former does and the latter does not conserve an advantage, right, or interest. It uniformly lies within the power of one or both parties at interest to waive or stipulate away an advantage, right,

or interest. If the parties can waive their entire rights by not appearing they can waive an incident to those rights after appearance. That seems axiomatic. The rule as stated by Brown upon Juris

diction, sections 17 and 18, is as follows:

*

*

SEC. 17. * But there are some matters that are jurisdictional which may be waived. * and the rule may be laid down that if a party entitled to complain of the want of jurisdiction for any cause neglects to do so, and takes subsequent steps in a court having jurisdiction inconsistent with an intent to take advantage of the want of power below and permits a judgment on the merits to be rendered, he is bound thereby.

SEC. 18. * * * So also where some personal privilege belongs to the defendant in a case, or some matter that he must plead or raise by motion or demurrer in order to bring it before the court and show the want of jurisdiction, then the defendant waives it by not raising the question.

So in innumerable cases it has been held that where jurisdiction is conferred by statute upon courts of law, if a court of equity having jurisdiction of the subject matter proceeds by consent of the parties, procedure at law may be waived and jurisdiction in the court of equity be conferred by waiver or consent. Tyler v. Savage (143 U. S., 79); Burton v. Platter (53 Fed. Rep., 901); Kilborn v. Sunderland (130 U. S., 505); Lewis v. Lucket et al. (221 U. S., 554).

We make these remarks solely in reply to statement in the petition that it necessarily follows from section 2901 being held mandatory as to procedure that waiver, consent, or stipulation can not be substituted for any of its requirements. What would or would not constitute such in any particular case is and was not before the court and is not here decided.

The. dilemma presented under the law of the goods passing entirely out of the customs custody within the time allowed for the collector to appeal (60 days) presents no novel situation. Prior to August 5, 1909, that time was only limited to what was "reasonable." That it was a situation constantly defeating reappraisement called by collectors at late days and not one presented by any decision of this court is within the knowledge of all familiar with customs practice and witnessed by the decisions of the Supreme Court more than 20 years since. See Beard v. Porter (124 U. S., 437).

That presents a matter of legislation which this court did not create and can not remedy, and we assume from its long existence one which the Congress has never deemed of sufficient moment for correction save as it might be affected by the limitation placed upon the time within which the collector may appeal by the act of 1909. The court is of the opinion it did not err; that no modification of the opinion is warranted; and that the opinion makes no modification of the long-established practice and regulations in the cus

toms matter

Petition denied.

BENJAMIN IRON & STEEL Co. v. UNITED STATES (No. 411).1

OLD STEEL RAILS NOT SCRAP.

To bring old steel rails within the provistons of paragraph 118, tariff act of 1909, the burden is on the importer to show that the importation is not only of scrap steel, but that it is such scrap steel as to constitute "waste or refuse iron or steel fit only to be remanufactured by melting." The evidence in the record falls short of showing the shipment was of this character; it was properly held dutiable under paragraph 126, tariff act of 1909.

United States Court of Customs Appeals, May 31, 1911.

APPEAL from Board of United States General Appraisers, Abstract 23664 (T. D. 30768). [Affirmed.]

Shire & Jellinek (Vernon Cole of counsel) for appellant.

D. Frank Lloyd, Assistant Attorney General (Thomas J. Doherty on the brief), for the United States.

Before MONTGOMERY, HUNT, SMITH, BARBER, and DE VRIES, Judges.

SMITH, Judge, delivered the opinion of the court:

The Benjamin Iron & Steel Co. imported at the port of Buffalo, N. Y., 25 carloads of steel rails purchased in Canada from the Provincial Steel Co. The importation was classified by the collector as steel rails and assessed for duty under paragraph 126 of the tariff act of August 5, 1909, which reads as follows:

126. Railway bars made of iron or steel, and railway bars made in part of steel, Trails and punched iron or steel flat rails, seven-fortieths of one cent per pound; railway fish-plates or splice-bars, made of iron or steel, three-tenths of one cent per pound.

The importer objected to the classification and duty assessed and claimed in his protest duly filed that the wares were scrap steel rails fit only for remanufacture by melting, and therefore dutiable under paragraph 118 of the act, which reads as follows:

118. Iron in pigs, iron kentledge, spiegeleisen, and ferro-manganese, two dollars and fifty cents per ton; wrought and cast scrap iron, and scrap steel, one dollar per ton; but nothing shall be deemed scrap iron or scrap steel except waste or refuse iron or steel fit only to be remanufactured by melting, and excluding pig iron in all forms. The Board of General Appraisers overruled the protest and the importers appealed.

Only one question is raised by the appeal and that is: Are the steel rails scrap steel; that is to say, waste or refuse steel fit only to be remanufactured by melting?

On the hearing before the board the importer and three witnesses gave testimony in support of the protest. Giving to their testimony all the weight to which it is justly entitled it establishes at most that the importation is one of old steel rails which are so broken, worn, and damaged as to be unfit not only for the uses for which they were

1 Reported in T. D. 31677 (20 Treas. Dec., 1259).

originally manufactured, but also for the secondary purpose and less exigent needs of contractors' or industrial railways. Steel rails in such a condition, even if it be accepted that they are scrap steel in the ordinary sense of the term, do not by virtue of that fact alone fall within the provisions of paragraph 118. To give the rails the benefit of that paragraph and to make them dutiable thereunder they must not only be scrap steel or scrap iron, but such scrap steel or scrap iron as is "waste or refuse iron or steel, fit only to be remanufactured by melting." The burden was on the importer to show not only that the classification to which he objected was erroneous, but that the classification which he claimed in his protest was correct. Fisk v. Seeberger (38 Fed. Rep., 718-719), Walker v. Seeberger (38 Fed. Rep., 724, 726), Strakosh v. United States (1 Ct. Cust. Appls., 360; T. D. 31453), In re Herter Bros. (53 Fed. Rep., 913), Davies v. Arthur (7 Fed. Cas., 43). To sustain his protest it was not enough to show that the wares which he imported were old, worn, rusty, broken steel rails of varying lengths or that they had been discarded as unfit for their original or any similar purpose or even that they were unfit for any use in their imported condition without further manufacture. If he wished to bring the importation within the meaning of the paragraph under which he claimed it was properly dutiable, it was incumbent on him to go further than all that and to establish by a preponderance of evidence that the scrap steel rails were waste or refuse steel fit only to be remanufactured by melting. We think that the evidence contained in the record falls short of showing that the shipment was of that character. The fact that the rails were purchased from the Provincial Steel Co. of Canada, which bought rails fit for rerolling and sold those unfit for that purpose, can hardly be regarded as proof that the rails sold by it to the appellant were actually unfit for rerolling and much less as proof that they were fit only to be remanufactured by melting. True, the importer does positively testify that the wares were fit for melting purposes only. As to that fact, however, we are not satisfied from the record that he was a witness qualified to speak. It appears from his testimony that he is engaged in the business of buying and selling iron and steel of all kinds, but it does not appear that he is a manufacturer of steel or that his experience or the nature of his business is such as to give him a knowledge of all the manufacturing uses for which scrap steel rails are commercially available. Moreover, the following evidence which. he gave would seem to indicate that he was uncertain as to whether the rails or some of them might not be fit for rerolling:

Q. Take the pieces only 4 feet in length, could they be rerolled into bars?—A. I don't know. We usually sell them over 5 feet for rerolling.

Q. Do you ever sell to mills that do heat and reroll as distinguished from remelting? A. Yes, sir.

Q. From your knowledge are you able to state whether or not this particular material is unsuitable for such use?—A. I should say they are not suitable for such use.

Q. Why? A. Because they were split heads, broken heads, and short lengths. Q. That wouldn't prevent them from being reheated and redrawn? A. Yes, sir. Q. Why?-A. They have to have a rail that is almost perfect for rerolling; it would depend a good deal on what rerolling purpose they were to be used for.

Q. There isn't any piece of scrap iron that could not be made over into something by spending a lot of labor on it? A. Yes, sir; almost any scrap iron can be used for rerolling purposes.

Q. Horseshoes, nuts, and bolts?-A. Yes, sir; and spikes or anything of that kind can be rerolled.

Furthermore, his testimony to the point that the importation was fit only for remelting is somewhat weakened by the testimony of two of his witnesses, Frank Lehanan and Jedo Gould. One of them is apparently engaged in the same line of business as the appellant and the other is a manufacturer of castings and a remelter. These witnesses seemingly have had as much experience in the steel and iron. business as the importer. So far as the record discloses, their opportunity for knowing whether the rails were fit commercially for one manufacturing use or another was as good as that of the importer. Yet neither of them confirmed him, and both of them expressly declined to state that the rails were unfit for any manufacturing purpose other than that of remelting. One witness, Edwin G. Taylor, did corroborate the importer in this particular. Mr. Taylor's testimony, however, was limited to the 4-foot rails purchased by the Snow Steam Pump Works and is open to the objection that his knowledge and experience of manufacturing scrap, waste, or refuse steel is not shown to extend beyond that of melting. Whether he knew anything about heating and rolling or rerolling such steel or the commercial practicability of heating and hammering it into tools does not appear. His general experience may have been such as to make him conversant with all the methods of manufacturing scrap steel and with the kinds of steel commercially suitable for each method, but we can not assume that he was so informed simply from the fact that he was a remelter, especially as the witness Gould, another remelter, stated that he was not familiar with rolling mills or rollingmill plants and that he could not say whether there was anything about the rails which would unfit them for further manufacture by heating and rerolling without remelting.

As scrap-steel rails may be remanufactured without melting by heating and rerolling or by heating and hammering, the testimony of witnesses acquainted with those processes of remanufacturing scrap steel should have been produced to show that the rails imported were commercially unfit for such methods of manufacture. Testimony of that kind not having been produced it must be held that the appellant

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