The construction of some phases of the almond statute has been before the board and the courts, as well as the Treasury Department, but the precise question bere involved has not been considered by either of them, so far as we are advised, until the case of Heide v. United States (175 Fed. Rep., 316), which was heard in the Circuit Court for the Southern District of New York and which was the result of the protests made in the last three or four years above referred to. In that case, the contention made by the importer here was sustained by the Circuit Court and the evidence before us tends to show that the merchandise there involved was of the same class as the importations here. This decision, it may be noted, was not rendered until after the enactment of the tariff law of 1909, hence no presumption that the same has received legislative recognition may be indulged in here. Aside from that case and contemporaneous or subsequent protests and litigation resulting therefrom, there is nothing to show nor is it claimed that during the whole history of tariff legislation almonds like the importations here have been claimed to be entitled to admission or have been admitted to duty under the provision relating to nuts not otherwise provided for.

It will be observed that the Heide case above referred to was an appeal from a decision of the Board of General Appraisers (T. D. 28816), in which the board had sustained the contention the Government makes here, and had also held, amongst other things, that no allowance should be made for shells, dust, dirt, and other impurities in shelled almonds that were not shown to be unusual or abnormal in quantity, as the goods were bought and sold in the commerce of this country, and further that this decision was the only adjudication as to the meaning of this statute which had been made prior to the enactment of the tariff law of 1909.

It may with some force be urged and it is urged by the Government that the action of Congress in reenacting the almond statute was a recognition that this construction of the almond paragraph by the Board of General Appraisers was correct, and further that by the amendment to the provision relating to nuts of all kinds, shelled or unshelled, in the law of 1897, found in paragraph 283 of the act of 1909, providing that no allowance should be made for dirt or other impurities in nuts of any kind, shelled or unshelled, Congress designed to settle the question that not only as to nuts, but as to almonds, there were but two classes, namely, one shelled and the other not shelled, thereby emphasizing its previous intention in that regard, as already pointed out.

In Notes on Tariff Revision the attention of Congress was specially called to the almond and nut paragraphs. Reference was therein made to the decision of the Board of General Appraisers last above referred to and the amendment which Congress made to paragraph 272, as above set forth, was therein suggested to it in the precise lan

guage adopted as designed to prevent further litigation over the claims made by the importer in T. D. 28816. Nor was Congress left unaware of the importance of the subject, because it was in the same connection therein advised that the importations, apparently annually, of clear almonds, shelled, was valued at $1,773,709 and of almonds not shelled at $441,141.

It seems unbelievable that, with this information before it, Congress intended to depart from the practice that had then so long obtained in regard to the classification of almonds and from its own consistent policy, ever since almonds shelled and not shelled had been dutiable, to impose a higher rate of duty upon the former article.

It is proper, in interpreting an ambiguous statute, to determine whether the result of a claimed construction thereof is or is not inconsistent with the established policy of the law, if one can be ascertained, upon that subject. That policy, as already pointed out with reference to almonds, has generally been to treat them independently from nuts shelled or unshelled and has always been to impose a duty upon shelled almonds at least 50 per cent higher than that upon almonds not shelled. If "clear almonds, shelled" be held inapplicable to the importations here and they be found dutiable as shelled nuts, it is apparent that the shelled almonds will pay a much less duty than if they had been imported before being shelled. In other words, the product to which labor has been applied and which has been improved in its condition pays a less duty than the same article in its crude state. Not only this, but the evident purpose of Congress to treat almonds, not shelled or shelled, separately from nuts for duty purposes is defeated.

Such results, it must be confessed, are illogical and inconsistent and should not obtain unless required by the unambiguous language of the statute. Nor is this all; the construction insisted upon by the importer would seem to contravene the general theory of our tariff laws, which is to protect American industries, to equalize duties, and to provide revenue. American industries are not consistently protected by permitting entry of shelled almonds at a lesser rate than almonds not shelled. Such a course would not seem to result in an equalization of duties on almonds, and the Government would seem to be deprived of the revenue that for many years it has evidently intended shelled almonds should pay and which until very recently, as above pointed out, they have always paid upon importation into this country.

It is settled law that statutes should receive a sensible construction, one that is in harmony with the purposes of its enactment and will if possible avoid an unjust and absurd conclusion. United States v. Riggs (203 U. S., 136); Lau Ow Bew v. United States (144 U. S., 47, 59); Church of Holy Trinity v. United States (143 U. S., 457).

We advance to a consideration of the precise language of the paragraphs in question.

The importer says the term "clear almonds, shelled" has the same meaning as clear shelled almonds, and then by easy stages reaches the conclusion that it means only the clearest, cleanest, selected almonds that are the subject of commerce. The burden is upon him to sustain this contention.

Now, while the meaning of the word "clear" as used in the paragraph is not free from some doubt, and the purpose of Congress in placing it there is somewhat uncertain, if any deliberate purpose in so doing was entertained, we are of opinion it does not have the effect claimed by the importer. "Clear almonds" without the use of the further descriptive word "shelled" may mean almonds not shelled; that is, nothing but almond shells in their natural condition, including the meats or pits therein contained. The addition thereto of the word "shelled" would then mean such clear almonds in their natural condition with the shells remove!. There is nothing in the record that tends to show that these importations were not before being shelled clear almonds in the sense above indicated, and there is nothing to show that the dirt, dust, and pieces of shell in these importations are not such as would naturally result from the shelling processes, whatever they may have been. In other words, no admixture of substances foreign to the clear almonds in the shell is shown to be present in these importations. On the other hand, Congress may have used the word "clear" in some other sense not suggested in this case and which it supposed was then applicable to the subject, or it .may have used the word without intending thereby to make any change whatever in the meaning of the paragraph.

Says Lewis's Sutherland Statutory Construction, section 401, speaking of the rule that an amendment to a statute is not to be presumed to be without design:

Every change of phraseology, however, does not indicate a change of substance or intent. The change is often found to be the result of carelessness or slovenliness of the draftsman. The changes of phraseology may result from the act being the production of many minds and from being compiled from different sources. Hence the presumption of a change of intention from a change of language is of no great weight, and must mainly depend on the intrinsic difference as resulting from the modification. A mere change in the words of a revision will not be deemed a change in law unless it appears that such was the intention. The intent to change the law must be evident and certain; or it must be such substantial change as to import such intention, or it must otherwise be manifest from other guides of interpretation, or the difference of phraseology will not be deemed expressive of a different intention.

It is also well understood that unnecessary words are sometimes used in a statute evidently from an excess of caution, and it is not uncommon that words are sometimes used in a sense different than the meaning attributed thereto by lexicographers. An illustration of this may be found in paragraphs 283 and 272, above quoted, where the words "shelled or unshelled" are evidently used in contradistinction to each other, the former as referring to nuts with the shell on

and the other to nuts with the shell removed, and yet the word "unshell," from which "unshelled" is derived, is uniformly defined by lexicographers as meaning to remove the shell from. It is, however, unnecessary to speculate what was the congressional intent evidenced by the use of the word "clear" so long as we are unable to attribute thereto the meaning urged by the importer.

If Congress had meant to impose a duty of 6 cents per pound only upon thoroughly cleaned and perfect almond meats, it were easy to have plainly so declared, and in view of the history of the tariff legislation on the subject, the administration thereof, and the principles of statutory interpretation to which reference has been made, we hold that failing to have so expressly declared the statute ought not to be so interpreted.

This conclusion makes it unnecessary to consider whether by his assignments of errors the importer has raised any question relating to the exclusion of evidence by the board or to consider whether there was error in such exclusion if that question were before us. The result is that the judgment of the Board of General Appraisers is affirmed.

DE VRIES, Judge, did not sit in this case.

STERN BROS. v. UNITED STATES (No. 660).1

APPRAISEMENT OF MERCHANDISE NOT IN PUBLIC STORES.

The leather bags of the importation in question were contained in cases that were not sent to the public stores for examination. The importer's contention is that the bags did not contain toilet articles, but were assessed for duty as if they did contain them. The goods having gone into consumption and the veracity of the witness who testified being unquestioned, it was sufficient proof of the actual character of the leather bags, when there was produced and submitted by the importer a memorandum known as a "stock list" that contained a complete and accurate description of the articles in question, with the cost and sale prices thereof. It was not necessary to corroborate this testimony by offering samples of the merchandise. The goods were dutiable at 40 per cent ad valorem under paragraph 452, tariff act of 1909. Bradley Martin v. United States (1 Ct. Cust. Appls., 134; T. D. 31185); United States v. Hermann (154 Fed. Rep., 196).

United States Court of Customs Appeals, January 11, 1912. APPEAL from Board of United States General Appraisers, Abstract 25070 (T. D. 31405). [Reversed.]

Comstock & Washburn (Albert H. Washburn and Geo. J. Puckhafer of counsel) for appellants.

Wm. L. Wemple, Assistant Attorney General (Chas. Duane Baker on the brief), for the United States.

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

DE VRIES, Judge, delivered the opinion of the court:

This is an appeal from a decision of the Board of General Appraisers, and brings here for review a question of evidence. The merchandise

1 Reported in T. D. 32167 (22 Treas. Dec., 65).

was ladies' hand bags, some of which were fitted with toilet bottles, others not.

On arrival of the importation at the port of New York the proper number of cases under section 2901 of the Revised Statutes were by the collector, as therein required, designated for examination by the appraiser. The appraiser duly examined these cases and packages, made his return to the collector, and duty was assessed upon the entire invoice, or at least the articles the subject of this controversy, at 50 per cent ad valorem under the provision of paragraph 452 of the tariff act of 1909, levying duty upon "cases of leather fitted with toilet articles."

The contention of the importer, who is appellant here, upon which chief reliance is made, is based upon the allegation that these bags did not contain toilet articles, and were therefore dutiable at the rate of but 40 per cent ad valorem under the same provision. The Board of General Appraisers overruled the protest.

The record develops the fact that the merchandise in question was contained in cases which were not sent to the public stores for examination, and were not before the appraiser for examination and return. The board states:

The only proof submitted is the statement of the person who bought the merchandise for protestants. She stated that all of the bags represented by the item numbers claimed upon had been sold and that therefore no sample could be produced, but she gave in detail a description thereof from a memorandum made at the time of importation. The Government offered no evidence and did not even cross-examine the witness, but nevertheless the board is not satisfied that the proof offered is sufficient to justify a reversal of the collector's action. Protestants had knowledge that case 3958, containing the bags in controversy, had not been designated for examination and was not therefore before the appraiser. If, then, with such knowledge, they failed to retain and present on the trial of the same representative samples thereof so that counsel for the Government might have the benefit of examination thereof and the opportunity, if desired, to present proof in contravention of witness's statement or in support of the collector's action, they have failed to meet the burden which rested upon them. To hold otherwise might result in a procedure which would place the Government in many instances at the mercy of unscrupulous importers.

The record discloses, as stated in the opinion of the board, that the buyer of the importing firm testified that she was familiar with the foreign invoices of the importing firm and the goods covered by them; that she saw the particular case when it arrived in the store; that she there and then made a memorandum of the kind of goods included therein, describing particularly each bag upon the invoice; that was the usual course of business of the house, and that she made a similar description of all of the goods in this line received by the importing firm. The memorandum was then produced and received in evidence. It is entitled "stock list," and it gives a detailed description, as stated by the witness, of every number included upon the invoice, as well as the invoice number, the cost price, and the selling price of each article of the merchandise. It is a list used by the importing firm in