An examination of the act of 1897, which was construed in Downing v. United States, discloses that while tissue paper was made dutiable by paragraph 397, there was no provision covering articles composed of tissue paper. That case is therefore no authority to sustain the holding of the board in the present case. This distinction was evidently overlooked, as it seems perfectly clear that the proviso in question covers all articles composed of tissue paper, and in providing that such articles shall pay no less rate of duty than that imposed upon the component paper of chief value of which such article is made, the language of the act itself fixes the classification for the present importation. The decision of the Board of General Appraisers is reversed, and the assessment is affirmed. AMERICAN TRADING Co. v. UNITED STATES (No. 99).1 1. HANDMADE PRINTING PAPER SUITABLE FOR BOOKS. The term "handmade" as applied to paper is precise, explicit, specific, and controlling, and since the handmade paper of the importation weighed 10 pounds to the ream, it was dutiable under paragraph 401, tariff act of 1897.-Benneche & Bro. v. United States (153 Fed. Rep., 861).. 2. EFFECT OF DEPARTMENTAL PRACTICE. Even if the evidence showed, as it does not, that the practice of the Treasury Department had been contrary to the ruling now made, the reason for invoking departmental practice as binding is not found here; the provisions of the statute under consideration are not of doubtful construction. United States Court of Customs Appeals, October 16, 1911. TRANSFERRED from United States Circuit Court for Southern District of New York, Abstract 20115 (T. D. 29429). [Affirmed.] Comstock & Washburn (Albert H. Washburn of counsel) for appellant. D. Frank Lloyd, Assistant Attorney General (Martin T. Baldwin on the brief), for the United States. Before MONTGOMERY, SMITH, BARBER, and MARTIN, Judges. BARBER, Judge, delivered the opinion of the court: The merchandise involved in this case is concededly, handmade paper weighing over 10 pounds to the ream. The appellant claims. and the board found that it is also printing paper suitable for books. This is not denied by the United States. The sole question is whether this paper is dutiable under paragraph 396 or under paragraph 401 of the tariff act of July 24, 1897. We insert here the material part of each paragraph. 396. Printing paper, unsized, sized or glued, suitable for books and newspapers, * * * 401. Writing, letter, note, hand-made, drawing, ledger, bond, record, tablet, and typewriter paper, weighing not less than ten pounds and not more than fifteen pounds to the ream, * but if any such paper is ruled, bordered, embossed, printed, * * or decorated in any manner, it shall pay ten per centum ad valorem in addition * 1 Reported in T. D. 31972 (21 Treas. Dec., 433). The collector and the Board of General Appraisers agreed that this paper was dutiable under paragraph 401. It is clear that being printing paper suitable for books it is included within the provisions of paragraph 396, and also being handmade paper it is equally clear that it is within the provisions of paragraph 401. Under these circumstances, to use the language of the Supreme Court in Fink v. United States (170 U. S., 584) The question is, which, if either of the two (paragraphs), is so dominant in its control of the article in question as to exclude the operation of the other. The rule is that this, if possible, is to be determined by ascertaining whether one of the two paragraphs is more definite in its application to the article in question than the other. The term "handmade" as applying to paper first appeared in the tariff act of 1897. It is obvious, having regard to method of production, that all papers will fall within one of two classifications, namely, machine made or handmade, unless possibly it may be said that some papers are partially machine and partially hand made, but this question is not involved here, and it would seem that the handmade article must constitute but a small part of the entire paper product. Congress is presumed to have had in mind that paper was divisible into these two classes and to have used the term "handmade" as applicable to all kinds of paper made by hand, unless when referring thereto some words of limitation, extension, or exclusion were also used in the same connection. The term "handmade" as applied to paper is, we think, precise, explicit, specific, and controlling in this case. The word is used without any modifying language, except as to the weight per ream, and nothing else is found in the paragraph to suggest that any kind or class of handmade paper shall be exempted from its provisions. Indeed, as was said by the Circuit Court of Appeals in Benneche & Bro. v United States (153 Fed. Rep., 861), Congress had in mind that the handmade paper might be suitable for printing or might be printed upon, because the same paragraph provides that if any such paper is printed in any manner it shall pay an additional rate of duty. But independent of this, we are clear that the words "handmade paper" more specifically describe the importation in question than does the term "printing paper, unsized, sized, or glued, suitable for books and newspapers" in paragraph 396. It is a specific designation from the standpoint of original manufacture. No question of commercial designation is made in the case here. The paper is "handmade," that is, made by hand, and the record shows that it is made from a vegetable fiber obtained from the bark of certain trees in Japan. Whatever may be its uses, we think Congress intended, if it was of the weight described in paragraph 401, that it should pay the duty therein made chargeable upon paper made by hand. While this conclusion seems to be the only natural one to be reached. upon a reading of the two paragraphs in question, it is also supported by authority. United States v. Davies, Turner & Co. (177 Fed. Rep., 371); Benneche & Bro. v. United States (153 Fed. Rep., 861); United States v. Seyd (158 Fed. Rep., 408). We are not unmindful of the case of Miller, Sloane & Wright v. United States (128 Fed. Rep., 469), and the same case in 135 Federal Reporter, 349, which are some authority for the appellant's contention here. We think, however, that notwithstanding these cases the later ones to which we have first above referred have so far impaired their effect that if we felt bound to regard either as a precedent we should follow those first above cited. Independent of the authority, however, of any of these cases our conclusion is that the construction we have above indicated is the one which should be adopted in this case. With reference to the appellant's claim as to the effect of the departmental practice in the construction of these paragraphs, as relates to handmade paper, it is sufficient to say, first, that no reason applies for its application here because we do not find the provisions of the statute under consideration of doubtful construction, and also because the facts in the case here show that there has been no such uniform, long continued, and uninterrupted construction of the statute. favorable to the appellant's claim as would render it effective here. The result is that the judgment of the Board of General Appraisers is affirmed. UNITED STATES v. FRANK & LAMBERT (No. 115).1 PRO FORMA INVOICE INDORSED "APPROVED" BY APPRAISER. The importers entered the goods upon affidavit and statement in the form of an invoice, giving bond as required by law. The collector sent this pro forma invoice to the appraiser, and upon the report of the assistant appraiser there appeared the words "Approved, E. S. Fowler, appraiser." Later the importers filed a consular invoice to cancel their bond, and in an accompanying verified statement asserted the incorrectness of the pro forma invoice, but made no application for reappraisement. The entry was liquidated on the basis of the value as given in the pro forma invoice. Held, the indorsement of “approved" by the appraiser shows a compliance with the requirement that he should ascertain, estimate, and appraise the actual market value of the merchandise and make a report thereon; furthermore, to hold thus is in accord with the regulations and practice in respect of pro forma invoices.-United States v. Bennett & Loewenthal, infra (T. D. 31975). United States Court of Customs Appeals, October 16, 1911. TRANSFERRED from United States Circuit Court for Southern District of New York, Abstract 21027 (T. D. 29690). [Reversed.] D. Frank Lloyd, Assistant Attorney General (Charles E. McNabb on the brief), for the United States. Curie, Smith & Maxwell (Thomas M. Lane of counsel) for appellees. Before MONTGOMERY, HUNT, SMITH, BARBER, and DE VRIES, Judges. HUNT, Judge, delivered the opinion of the court: The United States appeals from a decision of the Board of General Appraisers sustaining the protest of the importers, appellecs, against 1 Reported in T. D. 31973 (21 Treas. Dec., 436). the assessment of duties by the collector of customs at New York on the value stated in a pro forma invoice made in 1907 and covering certain cotton goods. It appears that Frank & Lambert, the importers, having no consular invoice at the time of entry, made entry upon affidavit and statement in the form of an invoice, as permitted by section 4 of the customs administrative act of 1890, and gave bond in the penal sum of $300, as required by said section. In the statement and affidavit, which is called a pro forma invoice, the importers stated the price of the cotton as follows: 1,978 yards at 4 d., 389 yards at 7d. On October 23, 1907, the collector sent the pro forma invoice to the appraiser. Upon the report of the assistant appraiser there appear the words "Approved, E. S. Fowler, appraiser." On January 25, 1908, the importers filed a consular invoice to cancel their bond, accompanying the invoice with an application, submitting that their bond was entitled to cancellation upon the ground that the pro forma invoice used on entry was made out erroneously by the shipping clerk in London, the pro forma invoice prices of 1,978 yards at 43d. and 389 yards at 7d. being erroneous in that the correct prices as ordered were 1,978 yards at 41d. and 389 yards at 6d. The application, which was verified, contained the statement by the importers that they were confident that the appraiser, if requested, would report the consular prices to be correct. The collector appears to have taken no action upon this verified letter or application, but on February 10, 1908, liquidated the entry upon the basis of the pro forma invoice value. The importers made no application for a reappraisement, but on February 20, 1908, filed a protest based upon the ground that the prices stated in the pro forma invoice were inaccurate through clerical error. The Board of General Appraisers sustained the protest for the reason that the value as entered on the pro forma invoice having been marked "Approved" by the appraiser did not indicate any regular appraisement of the merchandise, and upon the further ground that inasmuch as the consular invoice, which stated a lower value, was furnished to the collector prior to the liquidation of the entry, it was the duty of the collector to reliquidate the entry on the basis of the values as stated in the consular invoice. The case is now before us upon the principal contention that the board erred because duty was properly assessed upon the value as stated in the pro forma invoice, and that the appraiser's return made on the pro forma invoice was the appraisement of the merchandise, and became final and conclusive against the importers, under section 13 of the act of June 10, 1890. The pertinent provisions of the act of June 10, 1890, are as follows: SEC. 4. That, except in case of personal effects accompanying the passenger, no importation of any merchandise exceeding one hundred dollars in dutiable value shall be admitted to entry without the production of a duly-certified invoice thereof as required by law, or of an affidavit made by the owner, importer, or consignee, before the collector or his deputy, showing why it is impracticable to produce such invoice; and no entry shall be made in the absence of a certified invoice, upon affidavit as aforesaid, unless such affidavit be accompanied by a statement in the form of an invoice, or otherwise, showing the actual cost of such merchandise, if purchased, or if obtained otherwise than by purchase, the actual market value or wholesale price thereof at the time of exportation to the United States, in the principal markets of the country from which the same has been imported; which statement shall be verified by the oath of the owner, importer, consignee, or agent desiring to make entry of the merchandise, to be administered by the collector or his deputy, and it shall be lawful for the collector or his deputy to examine the deponent under oath touching the sources of his knowledge, information, or belief in the premises, and to require him to produce any letter, paper, or statement of account, in his possession, or under his control, which may assist the officers of customs in ascertaining the actual value of the importation or any part thereof; and in default of such production when so requested, such owner, importer, consignee, or agent shall be thereafter debarred from producing any such letter, paper, or statement for the purpose of avoiding any additional duty, penalty, or forfeiture incurred under this act, unless he shall show to the satisfaction of the court or the officers of the customs, as the case may be, that it was not in his power to produce the same when so demanded; and no merchandise shall be admitted to entry under the provisions of this section unless the collector shall be satisfied that the failure to produce a duly certified invoice is due to causes beyond the control of the owner, consignee, or agent thereof. * And when entry of merchandise exceeding one hundred dollars in value is made by a statement in the form of an invoice the collector shall require a bond for the production of a duly certified invoice. * * SEC. 5. That whenever merchandise imported into the United States is entered by invoice, one of the following declarations, according to the nature of the case, shall be filed with the collector of the port, at the time of entry by the owner, importer, consignee, or agent; which declaration so filed shall be duly signed by the owner, importer, consignee, or agent, * * *. SEC. 7. That the owner, consignee, or agent of any imported merchandise which has been actually purchased may, at the time when he shall make and verify his written entry of such merchandise, but not afterwards, make such addition in the entry to the cost or value given in the invoice or pro forma invoice or statement in form of an invoice, which he shall produce with his entry, as in his opinion may raise the same to the actual market value or wholesale price of such merchandise at the time of exportation to the United States, in the principal markets of the country from which the same has been imported; * And provided further, That all additional duties, penalties or forfeitures applicable to merchandise entered by a duly certified invoice, shall be alike applicable to merchandise entered by a pro forma invoice or statement in the form of an invoice. * The duty shall not, how * * * ever, be assessed in any case upon an amount less than the invoice or entered value. SEC. 10. That it shall be the duty of the appraisers of the United States, and every of them, and every person who shall act as such appraiser, or of the collector, as the case may be, by all reasonable ways and means in his or their power to ascertain, estimate, and appraise (any invoice or affidavit thereto or statement of cost, or of cost of production to the contrary notwithstanding) the actual market value and wholesale price of the merchandise at the time of exportation to the United States, in the principal markets of the country whence the same has been imported, and the number of yards, parcels, or quantities, and actual market value or wholesale price of every of them, as the case may require. SEC. 13. That the appraiser shall revise and correct the reports of the assistant appraisers as he may judge proper, and the appraiser, * shall report to the 32354-VOL 2—12——16 * * |