The Circuit Court of Appeals described the merchandise the subject of this decision as "so-called 'leather gouffré'" and stated that it was constituted of "pieces of thin leather, cut uniform, 28 inches in width and from 32 to 36 inches in length. One side is plain, while the other surface presents an embossed pattern, coated with designs in silver and various attractive colors. These pieces are not used in the imported condition, but are cut up and made into dress trimmings. There is evidence that they are sometimes cut up and used in the manufacture of pocketbooks and other fancy leather goods. Sometimes, when thicker than these at bar, so that paste will not strike through, they are used as "wall decorations." The courts held that they were dutiable as leather not specially provided for, and not as skins dressed and finished, reversing the decision of the board.

It will be noted that these court decisions were both rendered after the enactment of the tariff act of 1897; that gauffre leather, eo nomine, was neither a provision of the act of 1894 nor 1897.

Later and in December, 1899, the Board of General Appraisers, in G. A. 4611 (T. D. 21819), again had before it what is characterized in its opinion importations invoiced as "gauffreé leather" that were essentially the same as those described in the court decision quoted, and were held dutiable by the board as leather not specially provided for under the provisions of the tariff act of 1894, and not as skins dressed and finished or manufactures of leather, the protests having arisen under that act, though the decision was rendered after the repeal of that act and during the life of the tariff act of 1897. The lexicographic definitions of gauffre are as follows: Oxford Dictionary:

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Goffer, gauffer.-Also * * gauffre, to stamp or impress figures on cloth, paper, etc., with tools on which the required pattern is cut, f. gaufre, honeycomb. The usual sense of the English word is in French expressed by gauffrer a la paille, trans. To make wavy by means of heated goffering-irons; to flute or crimp.

To plait, flute, or crimp. 2. To raise in relief, especially for ornamental purposes, as thin metal, starched linen, or the like.

(It should be noted that the word being of French derivation is, when used in the same sense, spelled variously as gauffre, gauffreé, gouffre, goffer, gauffer, gaufre, and gauffrer.)

These definitions accord with those of the term "embossed," and it is admitted by all parties to the record that this merchandise, as imported, is embossed. It has in addition to embossing certain figures in jet or black. It appears, likewise, from the decisions quoted

that the merchandise the subject of these decisions was embossed, although in addition thereto were figures in silver and other fancy effects. The essential, however, of gauffre leather, as defined by lexicographic authority, and giving those words their natural descriptive force, is leather which has been embossed.

Considering the record in this case and decision of the board in the light of these decisions and authorities, it is manifest that while the record discloses that there is no commercial signification attached to these words "gauffre leather," they have a descriptive force frequently applied to such leather that precisely covers this importation and which is uncontradicted by any testimony in this record.

There was before the board the return of the collector and a sample of the imported merchandise, both of which unmistakably evidence what is admitted by all parties to the record in this court, to wit, that the importation consists of embossed leather, to which there has been added colored figures for fancy effect.

We think that the record thus shows, without the slightest contradiction, that the imported merchandise was within the descriptive force of "gauffre leather" as used in the statute and that the board. erred in holding the contrary.

We are then confronted with the modifying language of the statute and its application to the imported goods. There is no evidence in this record which discloses whether these importations were in the form of strips, such as those the subject of the court decision cited, or whether or not they were "cut" from leathers. That they are leathers is admitted by protestant. They were entered by protestant as "finished leather." They are alleged in the protests to be of "sheepskins." It is fairly within the record, therefore, by admissions made by protestant, that the importations are leathers made from sheepskins, and, therefore, we think included within the terms. "all other leather," as used in the paragraph under consideration. The use of the word "cut" in the paragraph under consideration seems inapt, unless the term be applied commercially to those strips of gauffre leather alone defined in the decisions quoted. There is no testimony upon that point in this record, and so far as this record discloses trade and commerce affixes no limitation or other definition to that term measured by shape or size. In its descriptive force it would apply to any size or shape of leather embossed in the manner stated. We do not think, however, this use of the word as in this paragraph should be held to defeat the manifest purposes of Congress. It was undoubtedly the intention of Congress to levy upon these finished leathers, to which had been applied additional processes in order to emboss them and to give them fancy effects, an additional rate of duty to that levied upon the leathers from which they are made. The use of the word "cut" in the statute is in one sense

instructive and indicates that when Congress adopted this phrase it had in view the purpose of embracing and making subject. to this additional duty the gauffre leather spoken of in the court and board decisions quoted. Such leathers were "cut" because they were in strips of such definite size and shape as to impress the reader that these were customary incidents of gauffre leather.

There being no evidence here that the term has other than its common and descriptive signification, which is not confined to any size or shape of leather, we must hold it descriptively applicable to these importations. That was accomplished and the additional duty levied by the use of the words "gauffre leather" alone. The remaining portion of the phrase is not used by way of description or limitation of the article upon which duty is levied, but is a term or phrase of reference only, indicating and pointing out the leather otherwhere in the act made dutiable, to which rate this additional rate is added. It is a term of reference and not of description. That basic provision is variable, dependent upon the proof as to what leather the particular gauffre is made from, which proof we think is fairly established in this case by the appellee's admissions in his protest.

It was the unmistakable purpose of Congress to levy an additional duty upon gauffre leather. The inapt use of the word "cut," as a word of reference to a class of merchandise and rate of duty clearly and unmistakably ascertainable, should not be held to control the application of this rate of duty to the subject matter intended by Congress to be made subject thereto. That such inapt language may be disregarded to carry out the plain and manifest intention of Congress finds ample support in numerous authorities. Thus in Lewis's Sutherland Statutory Construction, section 410, it is stated: SEC. 410. Legislative enactments are not any more than any other writings to be defeated on account of mistakes, errors or omissions, provided the intention of the legislature can be collected from the whole statute.

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And in the American and English Encyclopedia of Law, under the headings, Statutes, Principles of Interpretation and Construction, vol. 26, p. 613, the doctrine is as follows:

When the intention of the legislature as gathered from all legitimate sources is taken into consideration, terms and provisions not expressly declared may be introduced into a statute by necessary or plain implication from what is directly or expressly declared. By "necessary implication" is not meant an implication that points to a result so as to leave no possible escape and to exclude every other imaginable conclusion, but one that leads to such a conclusion as, under the circumstances, a reasonable view compels the court to take, the contrary of which would be improbable or absurd. And in Endlich on the Interpretation of Statutes, section 295, the rule is given in this wording:

Where the language of a statute, in its ordinary meaning and grammatical construction, leads to a manifest contradiction of the apparent purpose of the enactment, or to some inconvenience or absurdity, hardship or injustice, presumably not intended, a

construction may be put upon it which modifies the meaning of the words, and even the structure of the sentence. This is done, sometimes, by giving an unusual meaning to particular words; sometimes by altering their collocation; or by rejecting them altogether; or by interpolating other words; under the influence, no doubt, of an irresistible conviction, that the legislature could not possibly have intended what its words signify, and that the modifications thus made are mere corrections of careless language, and really give the true intention.

Numerous instances of the application of this principle are found in the decisions of the courts. United States v. Burr (159 U. S., 78), Atkins v. Disintegrating Co. (85 U. S., 272, 300), Wheeler v. McCormick (29 Fed. Cases, 901).

We are of the opinion, therefore, that this importation was properly assessed by the collector and that the decision of the Board of General Appraisers should be reversed.

CARMELITE WARE.

FRANK V. UNITED STATES (No. 562).1

The importation is of earthenware cooking utensils known as carmelite ware and these are in the shape of bowls. The bowls have had imposed on them a thin white layer of vitreous glass, forming a smooth, hard coating that differs in color and character from the body on which it is laid and so constituting a new surface. These articles are enameled; they are recognized in the trade as enameled, and as such they were properly dutiable under paragraph 93, tariff act of 1909. They were in fact assessed erroneously at a lower rate than the proper rate, and accordingly, as the appellants are not in a position to complain, the decision of the board is affirmed.

United States Court of Customs Appeals, May 22, 1911.

APPEAL from Board of United States General Appraisers, Abstract 24234 (T. D. 31103). [Affirmed.]

Walden & Webster (Henry J. Webster of counsel) for appellants.

D. Frank Lloyd, Assistant Attorney General (Edwin R. Wakefield on the brief), for the United States.

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

MARTIN, Judge, delivered the opinion of the court:

In the year 1909, after the present tariff act went into effect, the appellants imported. from Germany a consignment of earthenware cooking utensils known as carmelite ware. The articles were small bowls, casseroles, etc., made of a superior quality of finely ground clay. There are two exhibits filed in the case, one being a small pudding dish, the other being a shirred-egg dish, and these are said to be similar in character to the other articles included within the importation.

The collector held that the merchandise fell within the provisions of paragraph 94 of the act, and was therefore dutiable at 55 per cent ad valorem. The appellants protested against that assessment and claimed that the articles were dutiable at 35 per cent ad valorem

1 Reported in T. D. 31633 (20 Treas. Dec., 1098).

under paragraph 95 of the act. Certain alternative claims were made by appellants, but this is the claim insisted upon by them. The board heard the protest upon evidence and overruled the same, which ruling is now presented to this court for review.

The following three paragraphs of the act of 1909 contain the enactments which control this case, and they are therefore copied in full. 93. China, porcelain, parian, bisque, earthen, stone and crockery ware, including clock cases with or without movements, pill tiles, plaques, ornaments, toys, charms, vases, statues, statuettes, mugs, cups, steins, and lamps, all the foregoing wholly or in chief value of such ware; painted, colored, tinted, stained, enameled, gilded, printed, or ornamented or decorated in any manner; and manufactures in chief value of such ware not specially provided for in this section, sixty per centum ad valorem. 94. China, porcelain, parian, bisque, earthen, stone and crockery ware, plain white, plain brown, including clock cases with or without movements, pill tiles, plaques, ornaments, toys, charms, vases, statues, statuettes, mugs, cups, steins, and lamps, all the foregoing wholly or in chief value of such ware, not painted, colored, tinted, stained, enameled, gilded, printed, or ornamented or decorated in any manner; and manufactures in chief value of such ware not specially provided for in this section, fifty-five per centum ad valorem.

95. Articles and wares composed wholly or in chief value of earthy or mineral substances, not specially provided for in this section, whether susceptible of decoration or not, if not decorated in any manner, thirty-five per centum ad valorem; if decorated, forty-five per centum ad valorem; carbon, not specially provided for in this section, twenty per centum ad valorem; electrodes, brushes, plates, and disks, all the foregoing composed wholly or in chief value of carbon, thirty per centum ad valorem.

As has been stated, the merchandise was classified by the collector under paragraph 94 and assessed at 55 per cent ad valorem, but it is now conceded by the Government that this ruling was incorrect. On the other hand, the Government maintains that the collector erred in favor of appellants, and that the goods should have been assessed at 60 per cent ad valorem as enameled earthenware, under the provisions of paragraph 93. This contention of the Government and the corresponding protest of appellants, together make up the issue now appearing in the case. The question, therefore, is whether or not the articles composing the importation are enameled earthenware within the meaning of paragraph 93 as above copied.

The outer body of each of the vessels in question is composed of brown clay. This constitutes the frame of the article and gives it its full form and shape. Within the concave bowl of each vessel is a thin layer of white material which covers the inner surface and which is laid upon the brown clay before going into the kiln. The brown clay forms by far the larger bulk of the article, the white layer being quite thin and comprising not more than one-tenth of the material of the vessel. The entire surface of each piece, both inside and out, is also covered with a smooth, transparent, vitreous glaze.

The materials entering into the construction of the articles are named by a witness who manufactures in this country wares similar