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a liquid, whereas in salted fish the endeavor is to avoid the salt forming into a pickle. (3) Fish in tomato sauce-Fish in bouillon. The addition of a small quantity of tomato sauce or bouillon as a flavoring material does not change the character of the fish to which it is added. (4) Fish in tins. Herrings and mackerel in tomato sauce and so-called fresh herrings and mackerel which are salted and packed in tins are dutiable under paragraphs 272 and 273, tariff act of 1909, as herrings, salted," and "mackerel,

salted"; soused or pickled herring and mackerel in tins are dutiable under the same paragraphs as herrings, pickled” and “mackerel,

pickled "; and smoked herrings in bouillon are dutiable under paragraph 272 as “herrings,

smoked," rather than as fish in tins under paragraph 270 of said act. United States General Appraisers, New York, June 26, 1912. (T. D. 32680 ; G. A. 7380.)

No. 28414. Fresh herring-Fresh smelts.-Protests 491112, etc., of William A. Bird, and protest 453073 of Pooth Fisheries Co. (Buffalo). Opinions by Chamberlain, G. A. Fresh herring and fresh smelts, some of them frozen, and all classified as fish in packages of less than one-half barrel under paragraph 270, tariff act of 1909, were held dutiable as herrings, fresh or “ smelts, fresh or frozen ” (par. 272). Protests sustained. (T. D. 32488.)

No. 29755. Herrings naturally frozen-Herrings, fresh.—Protest 515145 of F. W. Bedell (Boston). Opinion by Chamberlain, G. A. Herrings naturally frozen immediately after being caught, classified as fish frozen or otherwise pre pared for preservation under paragraph 273, tariff act of 1909, were held dutiable under the provision in paragraph 272 for “herrings, fresh." G. A. 5992 (T. D. 26217) followed. (T. D. 32823.)

Kippered herring.United States v. Rosenstein Bros. (No. 394). (1) Finding of facts by the court, when. Where there has been no authoritative find ing of fact concurred in by a majority of the sitting members of the Board of General Appraisers, the question of fact is deemed open for determination here. (2) Kippered herring in tin cans. The words “herrings, kippered," in paragraph 272, tariff act of 1909, are construed with reference to the commercial meaning of those words at the time of the statute's enactment, and while it would appear there may have been occasional importations of kippered herring not in tins, the decided preponderance of the testimony here is that kippered herring are commonly imported in tins and can only be so imported during all seasons of the year, and “herrings, kippered," must be taken to refer to the fish in tin containers, and as such these are dutiable under paragraph 272 of said act. United States Court of Customs Appeals, February 27, 1911. (T. D. 31357.)

Kippered herring.---(1) Kippered herring-Commercial designation. The term kippered herring” has a definite, uniform, and general commercial designation which includes the character and quality of the fish and the container in which it is packed. (2) Same. Kippered herrings commercially are imported in 110 other packages than in tins. (3) Same. General use, not occasional use, furnishes the guide for classification. (4) Following G. A. 7007 (T. D. 30528) we hold the merchandise dutiable under paragraph 272 at onehalf of 1 cent per pound. United States General Appraisers, New York, July 15, 1910. (T. D. 30794; G. A. 7070.)

Kippered herring.-Kippered herring in tins. Kippered herring in tins are dutiable as “ kippered herring" under paragraph 272, tariff act of 1909, rather than as “ all other fish in tins” under paragraph 270. United States General Appraisers, New York, April 11, 1910. (T. D. 30528; G. A. 7007.)

Herring, pickled or smoked.-Ahlbrecht & Son v. United States (No. 643). Menzel & Co. 1". United States (No. 644). (1) Statutory construction. By a familiar rule, a statute that has been reenacted takes the established construction of that statute, but it is always open to the court to determine whether any change that may appear in new phraseology employed was meant to compel a different construction, the prime purpose always being to get it the real intent of the legislature. (2) Herrings in tins, smoked or pickled. In paragraph 272, tariff act of 1909, Congress has correlated herrings of all kinds and has included there herrings, pickled or salted, smoked or kippered, with the knowledge, it is to be presumed, that kippered herring can only be imported as fish in tins and has so made of the terms employed a designation more specific than "all other fish (except shellfish) in tin packages," paragraph 270. The importations are

dutiable under paragraph 272.—United States v. Rosenstein (T. D. 31358) distinguished. United States Court of Customs Appeals, January 23, 1912. (T. D. 32226.)

No. 27687. Frozen smelts.-Protest 491110 of William A. Bird (Buffalo). Frozen smelts classified as fish in packages of less than one-half barrel under paragraph 270, tariff act of 1909, were held dutiable as frozen smelts (par. 272). CHAMBERLAIN, General Appraiser:

The protest is sustained, the provision for “smelts, frozen," being more specific than that for “fish in packages, containing less than one-half barrel, and not specially provided for.” (T. D. 32224.)

No. 27100. Frozen smelts.--Protests 491111, etc., of William A. Bird et al. (Buffalo). Opinion by Chamberlain, G. A. Frozen smelts classified as fish in packages of less than one-half barrel under paragraph 270, tariff act of 1909, were claimed to be dutiable as frozen smelts (par. 272). Protests sustained. (T. D. 32020.)

Herrings, skinned or boned.-T. D. 30511, paragraph 273.
Herrings in tins (smoked and pickled).-T. D. 31474, paragraph 270.

PARAGRAPH 273.

Anchovies, bristlings, sprats, etc.-Anchovies, bristlings, sprats, sardines, and alewives, pickled, salted, or smoked, in tins, 30 per cent ad valorem under paragraph 270 of the tariff act; in kegs, casks, or boxes, under paragraph 270 or 273 according to the size of the packages. Treasury Department, November 7, 1912. (T. D. 32914.)

No. 26343. Dried codfish.Protest 456520 of H. M. Gidden, and protest 502837 of Harvey & Outerbridge (New York). Opinions by Chamberlain, G. A. Codfish in drums classified as fish in packages of less than one-half barrel under paragraph 270, ta riff act of 1909, was held dutiable as fish

dried " (par. 273). Protests sustained. Abstract 23837 (T. D. 30865) followed. (T. D. 3832.)

No. 27144. Fish in commercial half-barrel packages.—Protest 452511 of Zucca & Co. (New York).

CHAMBERLAIN, General Appraiser: The merchandise under protest consists of a shipment of 100 drums of codfish. Duty was assessed at the rate of 30 per cent ad valorem under paragraph 270 of the tariff act of 1909 as fish in packages of less than one-half barrel, and it is claimed to be dutiable under paragraph 273 of said act at three-fourths cent per pound as dried fish. This protest was originally decided by the board on May 31, 1911, Abstract 25764 (T. D. 31654). An application for rehearing having been granted, the protest again comes up for decision upon a record which discloses a new state of facts. It appears that out of the entire shipment of 100 drums only 5 were weighed by the official examiner, who reported an average weight of 983 pounds. The record further shows that the size drums here in question is the accepted commercial drum containing 100 pounds of fish. The issue at bar is therefore identical with that passed upon by the board in Abstract 23837 (T. D. 30865), on the authority of which we sustain the claim in the protest and reverse the decision of the collector. (T. D. 32020.)

Fish in tins.-(1) Pickled fish-Salted fish-Smoked fish. The terms “salted,” “pickled,” and “smoked,” as applied to fish have no meaning in trade different from their ordinary meaning. (2) Pickled-Salted. The distinction between pickled fish and salted fish would seem to be in the fact that pickled fish are in a liquid, whereas in salted fish the endeavor is to avoid the salt forming into a pickle. (3) Fish in tomato sauce-Fish in bouillon. The addition of a small quantity of tomato sauce or bouillon as a flavoring material does not change the character of the fish to which it is added. (4) Fish in tins. Herrings and mackerel in tomato sauce and so-called fresh herrings and mackerel which are salted and packed in tins are dutiable under paragraphs 272 and 273, tariff act of 1909, as "herrings,

salted," and " mackerel, salted ”; soused or pickled herring and mackerel in tins are dutiable under the same paragraphs as “herrings, pickled " and "mackerel, pickled "; and smoked herrings in bouillon are dutiable under paragraph 272 as “herrings,

smoked," rather than as fish in tins under paragraph

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270 of said act. United States General Appraisers, New York, June 26, 1912 (T. D. 32680; G. A. 7380.)

Herrings, skinned or boned.-Pickled, salted, or smoked herrings, skinned or boned, dutiable under paragraph 273, tariff act of August 5, 1909, at the rate of 17 cents per pound. Treasury Department, April 6, 1910. (T. D. 30511.)

The following articles were assessed or claimed to be dutiable under this paragraph, but held to be dutiable under other paragraphs:

Anchovies, bristlings, sprats, etc. (T. D. 32914, par. 270.)
Anchovies, bristlings, sprats, etc. (T. D. 32914.)
Frozen fish. (T. D. 31813, par. 270.)
Mackerel, halibut, or salmon, fresh. (T. D. 29973, par. 270.)
Dried codfish. (T. D. 31832, par. 270.)
Pickeled anchovies. (T. D. 31204, par, 272.)
Herrings naturally frozen.-T. D. 32823, paragraph 272.

PARAGRAPH 274.

Apples-Bushel measure.-United States v. Weber (No. 757). A “bushel " of apples. There is no controversy as to the rate of duty. The controversy is over the legal contents of a bushel of apples. Reviewing the history of the legislation and the decisions affecting weights and measures, it would appear there has never been an authoritative definition of a standard bushel measurement for the United States. The bushel has come, by usage in trade and commerce, to be with us the Winchester bushel of English law prior to 1826, the date of the adoption of the imperial bushel in England. By a statute of Anne, A. D. 1701, recognizing a trade usage already in force, apples and pears were required to be sold by heaping measure; and in the absence of any specific declaration by Congress as to the contents of a bushel of apples or the like, it will be presumed that a bushel of to-day is the bushel of English law and custom in 1776; and a bushel of apples is not a struck Winchester bushel, but that measure heaped. United States Court of Customs Appeals, February 15, 1912. (T. D. 32288.)

Maraschino cherries.—United States v. Reiss & Brady (No. 836). Fruits preserved or packed in sugar. The merchandise in this case was assessed as preserved or packed in sugar, or as having sugar added thereto. The correctness of the assessment is not challenged. The change appearing in the language of paragraph 274, tariff act of 1909, relating to fruits preserved or packed, would seem clearly to require the application of the rate of 1 cent per pound and 35 per cent ad valorem under that paragraph.—United States v. Reiss & Brady (166 Fed. Rep., 746) distinguished. United States Court of Customs Appeals, May 8. 1912. (T. D. 32540.)

No. 76. Dried sour cherries.-Protest 604241-41069 of G. W. Sheldon & Co. (Chicago). Opinion by Waite, G. A. Dried sour cherries held to have been properly classified as dried edible fruits under paragraph 274, tariff act of 1909. Abstract 25178 (T. D. 31450) followed. (T. D. 32760.)

No. 28013. Cherries in marachino.—Protests 538193, etc. of Reiss & Brady (New York). Opinion by Somerville, G. A. Cherries in maraschino containing from 0.35 to 0.75 per cent of alcohol, which were classified as “ fruits preserved or packed in

spirits or their own juices, containing not over 10 per cent of alcohol, under paragraph 274, tariff act of 1909, were held dutiable as edible fruits under the same paragraph. Protests sustained. United States v. Reiss (166 Fed. Rep., 746; T. D. 29507) followed. (T. D. 32346.)

No. 27240. Figs in maraschino-Cherries in maraschino.-Protests 473745, etc., of Austin, Nichols & Co. et al. (New York). Opinion by Somerville, G. A. Figs and cherries in maraschino containing from 1 to 1.25 per cent of alcohol, which were classified as “fruits

preserved or packed in sugar, spirits, or their own juices,

containing not over 10 per cent of alcohol," under paragraph 274, tariff act of 1909, were held dutiable as "edible fruits

prepared in any manner " under the same paragraph. United States *. Reiss (166 Fed Rep., 746; T. D. 29507) followed. (T. D. 32046.)

Crushed prunes.-Meyer & Lange et al. v. United States (No. 819). (1) Crushed prunes have no commercial designation. The issue of a commer

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cial designation is one of fact, the importer here having the burden of proof. The board found on a consideration of the evidence that crushed prunes were not shown to be commercially known as “jelly.” This finding is correct. (2) Crushed prunes-Fruit preserved in own juice. In the absence of a commercial designation, the merchandise falls aptly within the designation “ fruit preserved in own juices” and dutiable as such under paragraph 263, tariff act of 1897, and paragraph 274, tariff act of 1909. United States Court of Customs Appeals, May 17, 1912. (T. D. 32565.)

Pineapples.-Preserved pineapples found to contain more than 15.3. per cent of total sugar calculated as invert sugar to be assessed with duty under paragraph 274, tariff act of 1909, at the rate of 1 cent per pound and 35 per cent ad valorem. Treasury Department, April 5, 1911. (T. D. 31467.)

Singapore pineapples with added sugar-Tariff act of 1909.--Singapore pine apples imported under the tariff act of 1909 in hermetically sealed tin cans, to which sugar in substantial quantity has been added, is dutiable under paragraph 274 of said act, at 1 cent per pound and 35 per cent ad valorem, as "fruits preserved or packed in sugar, or having sugar added thereto," and not under the last clause of said paragraph, as “pineapples preserved in their own juice, not having sugar added thereto." United States General Appraisers, New York, July 11, 1910. (T. D. 30763; G. A. 7061.)

No. 26205. Preserved pineapples.—Protests 488303, etc., of P. T. Brown Co. (New York). Opinion by Somerville, G. A. Protests sustained in part. Pineapples which were classified as "fruits of all kinds preserved or packed in sugar, or having sugar added thereto," under paragraph 274, tariff act of 1909, were held dutiable under the same paragraphs as pineapples preserved in their own juice, not having sugar added thereto." Note G. A. 7061 (T. D. 30763.) (T. D. 31788.)

Umezuke or umeboshi.-A Japanese commodity known as umezuke, umeboshi, or akaumezuke, which is a plum-like fruit preserved in its own juice and salt, is dutiable under paragraph 274, tariff act of 1909, as a fruit preserved or packed in its own juice, and is not free of duty as fruits in brine under paragraph 571. G. A. 6237 (T. A. 26931) followed and Abstract 25511 (T. D. 31568) and Abstract 26780 (T. D. 31912) distinguishhed. United States General Anpraisers, New York, November 27, 1912. (T. D. 32979: G. A. 7406.)

Cherries in brine.-T. D. 32224, free, paragraph 571.
Chowchow pickles.-T. D. 32488, paragraph 253.
Papperias sced packed in brine, pickles.T. D. 32078, paragraph 253.
Tamarinds, packed in brine.-T. D. 32097. T. D. 31788. par:graph 688.

PARAGRAPH 275.

Ripe olives in brine.--Goussios & Co. et al. 1. United States (No. 682). (1) An administrative followed by a statutory construction. It is true a more specific designation controls as against a general designation, that a designation eo nomine controls as against a description by class, but where there has been an administrative construction and this has been adopted into law this construction must control.--Brennan v. United States (136 Fed. Rep., 743). (2) Olives barreled in brine. To hold this importation to be “fruit in brine and free of duty as such would be to hold all olives are duty free. The construction given in the administration of the law and the apparent adoption of this construction by subsequent congressional enactment makes black or ripe olives in brine dutiable under paragraph 275, tariff act of 1909.--Causse Mfg. Co. 1. United States, G. A. 5417 (T. D. 24663), distinguished. (3) Allowance for brine, when not made. The actual quantity of olives in the importation was, it would seem, ascertained by the gauger and no allowance should accordingly be made for brine. United States Court of Customs Appeals, November 22, 1911. (T. D. 32051.)

PARAGRAPH 276.

Barrels-Almeria grapes-Conventional gauge. Capacity of barrels containing Almeria grapes to be taken as 1.95 cubic feet and half barrels as 1.08 cubic feet within prescribed limitations, barrels outside of the prescribed limitations

to be measured and their actual holding capacity ascertained.-T. D. 29274 of September 30, 1908, revoked. Treasury Department, June 5, 1912. (T. D. 32601.)

Measurement of Almeria grapes.-Almeria grapes imported in barrels held to be dutiable, when imported prior to January 1, 1910, on the basis of an average capacity of 1.93 cubic feet per barrel and 0.965 cubic foot per half barrel. United States General Appraisers, New York, May 31, 1910. (T. D. 30664; G. A. 7030.

GrapesAct of 1909No allowance for nonimportation produced by decay.(1) Paragraph 276, act of 1909. Grapes imported in barrels or other packages are dutiable under paragraph 276, tariff act of 1909, at 25 cents per cubic foot of capacity of barrels or packages. (2) No allowance for decay under subsec. tion 22 of section 28. This paragraph levies a duty on the packages containing the grapes and not on the quantity of grapes contained in such packages. Hence no allowance can be made as a nonimportation for decay in the fruit prior to arrival in this country. United States General Appraisers, New York, December 19, 1911. (T. D. 32108; G. A. 7310.)

PARAGRAPH 279.

Pineapples--Grapes-Decay.--Pineapples in barrels or other packages-Paragraph 279, tariff act of 1909—No allowance for decay. Treasury Department, March 12, 1912. (T. D. 32306.)

PARAGRAPH 280.

Clear almonds, shelled--Tariff act of 1909.-So-called Jordan and Valencia almonds, shelled, imported in boxes, are dutiable under the tariff act of 1909 as clear almonds, shelled, and not under paragraph 283, which prohibits any allowance being made for dirt or other impurities in nuts of any kind, shelled or unshelled. United States General Appraisers, New York, June 27, 1910. (T. D. 30726; G. A. 7048.)

Shelled almonds.--Heide 1. United States (No.645). Almonds, shelled. intermixed with dirt. There is no question of commercial designation raised, and no allowance is claimed because of the presence of dirt or refuse. A review of the history of tariff provisions relative to almonds makes it plain there was no intention on the part of the Congress to depart from an established usage of years by which almonds shelled bore a higher rate of duty than almonds unshelled, and by which almonds eo nomine were made to take a duty higher than the duty imposed on nuts generally “of all kinds," not specially provided for. The importations were properly held dutiable under paragraphs 269, tariff act of 1897, and 280, tariff act of 1909, respectively, as clear almonds, shelled. United States Court of Cu oms Appeals, January 11, 1912. (T. D. 32166.)

Shelled almonds—Clear —Allowance for impurities.-(1) "Clear almonds, shelled," construed. In the absence of any commercial meaning or custom of trade, the board will decline to attach to this phrase as used in paragraph 269, act of 1897, and paragraph 280, tariff act of 1909, a meaning which would require the allowance or abatement of over 83 per cent of duties on imported shelled almonds by reason of their containing small quantities of dirt and other like impurities not greater than that contained ordinarily in similar merchandise, especially in view of a prior contrary construction by customs officers followed for nearly 20 years. (2) Evidence-Average impurities. All evidence which affects the classification of imported merchandise, to be relevant, must be shown to be applicable to the particular merchandise under consideration; and proof of the varying percentages of dirt and other impurities alleged to be contained in other importations of similar goods can not be introduced to prove the average impurities claimed to be contained in such goods under consideration. (3) Construction of statutes. Doubtful words or phrases in a tariff act or other statute will not be construed so as to lead to absurdity or injustice, if reasonably avoidable by a construction that will harmonize with all other parts of such statute in pari materia. United States General Appraisers, New York, April 7, 1911. (T. D. 31475; G. A. 7199.)

Shelled almonds.-Spencer Importing and Trading Co. v. United States (No. 761). (1) “ Clear." That construction of the word clear as applied to

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