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[d] (Ill. 1890) The fact that the notice of assessment sent out by a mutual benefit association was not, on its face, addressed to the member, is immaterial, where it was sent and received in an envelope properly directed.Hansen v. Supreme Lodge Knights of Honor, 40 Ill. App. 216.

[e] (Iowa, 1892) Notices of deaths and of assessments thereon were issued and mailed to the assured on a certain date, and taken by an authorized person from the post office to assured's residence. At this time he was ill, and unable to understand or transact any business, and so remained until his death, before which time the envelope containing the notices was not cpened. Held, that the certificates were not forfeited for nonpayment of the assessments, since the assured had no actual notice thereof.-Courtney v. United States Masonic Ben. Ass'n, 53 N. W. 238.

[f] (Iowa, 1895) Where a contract of insurance required a notice of assessments to be mailed to the beneficiary, placing a notice, properly addressed and stamped, upon a desk from which the mail carrier, whenever he delivered mail, took letters so left to deposit them in the mail, was not a mailing of the notice within the contemplation of the contract.-Molloy v. Supreme Council of Catholic Mut. Ben. Ass'n, 93 Iowa, 504, 61 N. W. 928.

[g] (Iowa, 1895) Where the constitution of a mutual benefit association requires notice of assessment to be given its members by "mailing them a notice to their last address as shown by the branch books," and a notice is mailed to a member at a different address from that shown in such books, a failure by the assured to pay the assessments will not forfeit his rights under his certificate of membership.-Molloy v. Supreme Council of Catholic Mut. Ben. Ass'n, 93 Iowa, 504, 61 N. W. 928.

[h] (Ky. 1885) In order to constitute notice through the mails sufficient, the notice must be placed in the post office, properly directed, and stamped.— Haskins v. Kentucky Grangers' Mut. Ben. Soc., 7 Ky. Law Rep. 371.

[i] (Mass. 1895) A by-law of a benefit association required the collector to notify members of assessments, and provided that the notice should be personal or by mail, "at the last-known post-office address or residence," and that a member failing to pay within 30 days from the date of the notice should be suspended. A member who was ill sent the amount of an assessment, with notice of change of residence, to the lodge, and the number of the house was, by negligence of a lodge officer, copied incorrectly on the books. Notice of a subsequent assessment was sent to such wrong address, and never received by the member. Held, that a failure to pay such assessment within 30 days did not work a suspension.-Waterworth v. American Order of Druids, 164 Mass. 574, 42 N. E. 106.

[j] (Minn. 1892) Where the constitution of a mutual benefit insurance association requires notice of assessments to be "sent" to members, notice sent by mail is effectual if actually received, and, where notice has been properly sent by mail, it will be presumed, in the absence of proof to the contrary, that it was received.-Benedict v. Grand Lodge A. O. U. W., 48 Minn. 471, 51 N. W. 371.

[k] (Mo. 1890) The by-laws of a benefit society provided that notice of assessment should be delivered to a member, or "shall be deposited in the mails by the reporter, directed to the member at his last or usual place of residence or business." Held that, if such notice was made out and deposited in the mail directed to the insured at his then residence or place of business, it was all the notice he was entitled to under his contract, whether it was in fact received or not, and it was error to make the validity of the notice dependent upon its reception.-Forse v. Supreme Lodge Knights of Honor, 41 Mo. App. 106.

[1] (N. Y. 1892) Where a mutual benefit association, from its home office in another state, mailed to plaintiff, a member, a notice of the death of another member, which notice required plaintiff to pay an assessment therein stated within 30 days from the date of the notice, under penalty of forfeiture of his policy, and plaintiff, through no fault of his, did not receive such notice until after the expiration of the 30 days, it was no such notice as, in the absence of an agreement to that effect, would work a forfeiture of plaintiff's policy.

Merriman v. Keystone Mut. Ben. Ass'n, 63 Hun, 635, 18 N. Y. Supp. 305, judgment affirmed (1893) 138 N. Y. 116, 33 N. E. 738.

[m] (N. Y. 1895) On an issue as to whether defendant mutual benefit insurance company had given a certificate holder notice of an assessment, evidence that it was defendant's custom to send out notices of assessment on the 1st of each month, and that, according to its books, a notice had been mailed to the certificate holder, may be considered as bearing on the question, but is not sufficient to throw on plaintiff the burden of proving that the notice was not received.-King v. Masonic Life Ass'n, 87 Hun, 591, 34 N. Y. Supp. 563.

[n] (N. Y. 1901) Where the laws of an insurance society made no provision as to the manner in which notice of assessment should be given, proof that such notice was mailed would be sufficient to show its receipt by a member on the absence of proof to the contrary.-Bettenhauser v. Templars of Liberty of America, 68 N. Y. Supp. 505, 58 App. Div. 61.

[nn] (Ohio, 1903) Where the constitution of a beneficial order provides that all members shall be notified of assessments, the mere placing in the mails of a notice addressed to a member is not sufficient to work a forfeiture, if the notice does not in fact reach him.-Crockett v. Order of Red Cross, 24 Ohio Cir. Ct. R. 421.

[0] (Tex. 1888) Under by-laws providing that notice shall be given of assessment due before there shall be a forfeiture, notice to a member put in the mail, directed to him, but not shown to have reached him, is insufficient to support a forfeiture.-McCorkle v. Texas Benev. Ass'n, 71 Tex. 149, 8 S. W. 516.

(122 Fed. 538.)

O. G. HEMPSTEAD & SON v. THOMAS, Collector.
(Circuit Court of Appeals, Third Circuit. May 6, 1903.)
No. 10.

1. CUSTOMS DUTIES-CLASSIFICATION-BURDEN OF PROOF.
The burden of showing that an import is dutiable is on the govern-

ment.

2. SAME PRESUMPTION.

Where the classification of an import is open to a construction which would as well place it on the free list, the course most favorable to the importer must be adopted.

3. SAME-TUNGSTEN ORES.

Tungsten ore, the primary extracted product of which is used as a mordant in dyeing cloth and for various other commercial purposes, and another to make high-grade steel, imparting thereto extreme hardness. density, weight, and durability, is free from duty, under section 614 of the tariff act of 1897 (Act July 24, 1897, c. 11, 30 Stat. 199 [U. S. Comp. St. 1901, p. 1685]), which embraces "minerals, crude," and not dutiable at 20 per cent. ad valorem, under section 183 (30 Stat. 166 [U. S. Comp. St. 1901, p. 1645]), which covers "metallic mineral substances in a crude state." Appeal from the Circuit Court of the United States for the Eastern District of Pennsylvania.

Wm. A. Keener and J. Stuart Tompkins, for appellant.
Wm. M. Stewart, Jr., and James B. Holland, for appellee.

Before ACHESON and DALLAS, Circuit Judges, and BUFFINGTON, District Judge.

12. See Custom Duties, vol. 15, Cent. Dig. § 13.

BUFFINGTON, District Judge. This case involves the classification under the tariff law of tungsten ores. Such ores are found in various parts of Europe, South America, and the United States. Their primary extracted product, taking the form of tungstate of soda, is used as a mordant in dyeing cloth and for various other commercial purposes. Another of their extracted products is used to make high-grade steel, and imparts thereto extreme hardness, density, weight, and durability. The proofs in this case (and in that they are confirmed by standard authorities on metallurgy and chemistry) show that the ore does not contain particles of metal, but these are obtained by chemical treatment. The powdered ore is treated with soda and some saltpeter in a reverbatory furnace. The melted material is subjected to acid, and on evaporation, crystallizes into tungstate of soda. On adding muriatic acid to the latter, tungstic acid is precipitated. By igniting tungstic acid with charcoal or in a current of hydrogen, metallic tungsten can be obtained, in the form of a powder. Tungsten iron or ferro-tungsten is made from tungsten or wolframate by roasting it, freeing it from sulphur and arsenic by treatment with muriatic acid, and strongly igniting it with charcoal in a closed crucible. This gives a sintered or scaly mass, which is fusible with iron ore. Dammer's Handbuch der Chemischer, Stuttgart (1895). "Tungsten, in the metallic state, is one of the rare elements, occurring neither in nature nor in the arts." Article "Tungsten," 2 Mineral Industry, p. 614. "In the pure metallic state the metal is considered only as a curiosity." Title "Tungsten," 3 Mineral Industry, p. 484. "Metallic tungsten is obtained by reducing." Bloxem's Chemistry, P. 397. The question here involved is whether this ore should be classified under section 614 (free list) of the tariff of 1897 (Act July 24, 1897, c. 11, 30 Stat. 199 [U. S. Comp. St. 1901, p. 1685]), which embraces "minerals, crude or not advanced in value or condition by refining or grinding, or by other process not specially provided for in this act," or under section 183, which covers "metallic mineral substances in a crude state and metals unwrought, not specially provided for in this act, twenty per cent. ad valorem." In determining that question the canon of construction is that tax laws, being in derogation of common right, must be construed strictly. Hartranft v. Wiegmann, 121 U. S. 615, 7 Sup. Ct. 1240, 30 L. Ed. 1012. The burden of showing the ore is covered by section 183 is upon the government, and, if its classification is open to a construction which would as well place it on the free list, the course most favorable to the importer must be adopted (American Co. v. Worthington, 141 U. S. 468, 12 Sup. Ct. 55, 35 L. Ed. 821), “as duties are never imposed on the citizen upon vague or doubtful interpretations" (Hartranft v. Wiegmann, supra). In Marvell v. Merrill, 116 U. S. 11, 6 Sup. Ct. 207, 29 L. Ed. 550, the court, in construing a prior tariff law, accepted Webster's definition of a mineral as "any inorganic species having a definite chemical composition," and an ore as "the compound of a metal and some other substance, as oxygen, sulphur, or arsenic, called its mineralizer, by which its properties are disguised or lost." Presumably with this decision in view, when Congress subsequently placed "minerals, crude," under section 614, it used a term of ascer

tained scope in tariff legislation. Now it is clear that tungsten ore is embraced and described under the terms "minerals, crude, or not advanced in value or condition by refining or grinding, or by other process not specially provided for in this act." It is inorganic. It has, as we have seen, a definite chemical composition. Its properties as a metal are disguised and lost in its mineralizer compound. Obviously, therefore, it falls within the broad generic term "minerals, crude," etc., of section 614. Indeed, it was admitted of record by the government "that the article in question is a mineral substance." If, therefore, it is not specifically described elsewhere in the law, it is covered by this section; and, being thus descriptively enumerated therein, the burden is upon the government to show conclusively it should be taxed under section 183 as a "metallic mineral substance." It is a familiar principle that where articles have a well-known, popular meaning, such meaning, rather than technical, scientific terms, will be adopted in the construction of tariff laws. Lutz v. Magone, 153 U. S. 107, 14 Sup. Ct. 777, 38 L. Ed. 651; American Co. v. Worthington, supra; Two Hundred Chests of Tea, 9 Wheat. 430, 6 L. Ed. 128. If, therefore, the term "metallic mineral substance" has any common, well-recognized commercial or trade meaning, it should be adopted. But the proofs disclose none. Now, as said in Robertson v. Salomon, 130 U. S. 415, 9 Sup. Ct. 560, 32 L. Ed. 995, "if the commercial designation fails to give an article its proper place in the classification of the law, then resort must necessarily be had to the common designation"; and for that common designation we must seek the dictionaries, which are evidences of common understanding. Marvell v. Merrill, supra; Nix v. Hedden, 149 U. S. 304, 13 Sup. Ct. 881, 37 L. Ed. 745. The Standard Dictionary defines "metallic" as "being, containing, or having characteristics of a metal; as a metallic mineral." Admittedly, there are certain mineral substances wherein metal is found-gold, silver, copper; and a number of other metallic minerals were instanced by counsel at the argument. But whether the number is large or small, sure it is that Congress has seen fit in this section to specify, not "mineral substances" generally, but a particular kind thereof, to wit, "metallic mineral substances, as subject to this 20 per cent. duty. Does tungsten ore answer this definition, as "being a metal"? As we have seen, no metal, as such, is found in it. It is not a metal, but an oxide, and the tungsten is mineralized. Tungsten metal is not found in it. It is two degrees or processes removed from metal. Its change thereto is not by grinding process, but by chemical effects on its particles. The proof is that "it undergoes a chemical process to decompose it." The process "is absolute transformation." "You change its character absolutely." It is "an expensive and intricate process." It is "brought from its oxide condition into a metallic condition by a process before it becomes a metal." In the case of ferro-tungsten, where it is compounded with iron, it first displays metallic characteristics; tungsten ore is first changed to tungstate of soda, then into tungstic acid, and then alloyed with iron to produce tungsten metal; and it should be noted that the proofs show such ferro-tungsten is classified and assessed under section 183 as "metals unwrought." The proofs show

and there is none to the contrary-that tungsten ore has none of the characteristics of metal. It has neither elasticity, ductility, malleability, resonance, nor luster. In the Century Dictionary it is said the term "metallic" is used to indicate the condition of a metal in which it exists by itself, and is not mineralized or combined with those substances which take away its metallic character and convert it into an ore-characteristics the very opposite of tungsten ore. It will be noted, also, that the government, in its official publications, has adopted this definition of "metallic" and "nonmetallic" as applied to and descriptive of minerals. In the geological surveys of 1899 and of 1901 in evidence, manganese and chromic iron ores are listed as nonmetallic. Yet ferro-chrome and ferro-manganese, which are used for the same purpose as ferro-tungsten, viz., as a steel hardener, are obtained by direct process from the ore, while, as we have seen, it takes two intermediate processes. before tungsten is alloyed with iron to form ferro-tungsten.

Finding, therefore, as we do, that tungsten ore is aptly described by the term "minerals, crude," of section 614, and that it does not answer the description "metallic mineral substances in a crude state," used in section 183, the decree of the court below is reversed, with direction to enter one in favor of the appellant.

(122 Fed. 406.)

THE QUEEN ELIZABETH.

FULTON v. HOLMES et al.

(Circuit Court of Appeals, Second Circuit. April 16, 1903.)

Nos. 142, 143.

1. COLLISION-SAILING VESSELS CROSSING-INSUFFICIENT LOOKOUT

A finding that a schooner was in fault for a collision with a crossing vessel in the night affirmed, where it appeared from the evidence that she was the burdened vessel, that through the inefficiency of her lookout she failed to see the lights of the other vessel until she was only three or four lengths distant, and then attempted to cross ahead of her, in violation of article 22 of the international navigation rules (Act Dec. 31, 1896, 29 Stat. 889 [U. S. Comp. St. 1901, p. 2870]). 2. SAME DEPARTURE FROM RULES-WHEN JUSTIFIED.

Under article 27 of the international navigation rules (Act Dec. 31, 1896, 29 Stat. 889 [U. S. Comp. St. 1901, p. 2871]), which provides that in obeying and construing the rules "due regard shall be had to all dangers of navigation and collision and to any special circumstances which may render a departure from the above rules necessary in order to avoid immediate danger," a privileged vessel cannot be charged with fault for changing her course where an immediate collision appears inevitable if her course is maintained, and the danger is due solely to the fault of the other vessel.

8. SAME-ACTION IN EXTREMIS.

Where the master of a vessel, who is a navigator of experience and good judgment, is confronted with a sudden peril, caused by the action 13. See Collision, vol. 10, Cent. Dig. § 225, 227.

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