selected by law for the express purpose of deciding these questions. They are empowered and required to pronounce a judgment in the case, and the conduct, management, and operation of the revenue system seem to require that their decisions should carry with them the presumption of correctness. United States v. Rosenwald (67 Fed. Rep., 323); Arthur v. Unkart (96 U. S., 122); Muser v. Magone (155 U. S., 240). We have heretofore recited the issuable facts in this case. Opportunity was offered the importer to introduce testimony establishing in his favor any of these issuable facts. The only evidence introduced was that of the examiner, which tends rather to support the issuable facts as found by the board than to controvert them in this case. Basing our decision solely upon this ground, the decision of the Board of General Appraisers is affirmed. PATENT EAR CAPS. BEST v. UNITED STATES (No. 163).1 A child's cap made of elastic braid or straps, connected by narrow bands of cotton tape and designed to prevent the ear from growing abnormally and held in position when spread closely over the skull by being knotted under the chin, is not a bit of cotton wearing apparel and dutiable under paragraph 314, tariff act of 1897, but is a brace, rather, and was dutiable under paragraph 320 of said act. United States Court of Customs Appeals, October 18, 1910. TRANSFERRED from the United States Circuit Court, Southern District of New York, G. A. 6941 (T. D. 30121). [Reversed.] Kammerlohr & Duffy (Joseph G. Kammerlohr on the brief) for appellants. D. Frank Lloyd, Assistant Attorney General (William A. Robertson on the brief), for the United States. Before MONTGOMERY, HUNT, SMITH, and BARBER, Judges. HUNT, Judge, delivered the opinion of the court: Appellants, Best & Co., in December, 1908, imported merchandise known as Claxton's patent ear caps. The collector at New York classified the articles as cotton wearing apparel, under the provisions of paragraph 314 of the tariff act of 1897, which reads as follows: 314. Clothing, ready-made, and articles of wearing apparel of every description, including neck-ties or neckwear composed of cotton or other vegetable fiber, or of which cotton or other vegetable fiber is the component material of chief value, made up or manufactured, wholly or in part, by the tailor, seamstress, or manufacturer, and not otherwise provided for in this act, fifty per centum ad valorem: Provided, That any outside garment provided for in this paragraph having india rubber as a component material shall pay a duty of fifteen cents per pound and fifty per centum ad valorem. The importers urged that the ear caps were entitled to entry at the rate of 45 per cent, either under paragraph 320 of the tariff of 1897 1 Reported in T. D. 31009 (19 Treas. Dec., 1072). 92477-VOL 1-11-4 or under the provision for manufactures of cotton in paragraph 322. These paragraphs, so far as necessary to the case before us, are, respectively, as follows: 320. Bandings, beltings, bindings, bone casings, cords, garters, linings for bicycle tires, ribbons, suspenders and braces, tapes, tubing, and webs or webbing, any of the foregoing articles made of cotton or other vegetable fiber, rubber or otherwise forty-five per centum ad valorem; * * * * * * # * 322. All manufactures of cotton not specially provided for in this act, forty-five per centum ad valorem. Upon review of the decision of the collector, the Board of General Appraisers heard testimony as to the manufacture and use of the articles, and thereafter held that they were properly dutiable as wearing apparel under paragraph 314, already quoted, and sustained the action of the collector. An appeal was taken by the importers to the Circuit Court for the Southern District of New York, but before decision by that court the record was certified to this court, pursuant to section 29 of the act of Congress approved August 5, 1909, which provided that upon the organization of the Court of Customs Appeals cases within the jurisdiction of this court pending and not submitted for decision in any United States circuit court should be certified to the Court of Customs Appeals for further proceedings. It is therefore before us for review of the decision of the Board of General Appraisers. We are constrained to disagree with the ruling of the Board of Appraisers, and to exclude the articles from within any definition of wearing apparel under section 314. The caps are made to be worn by children in the nursery and during sleep. They consist of a series of elastic braid or straps, connected by narrow bands of cotton tapea network of narrow bands-which spread closely over the skull and are held in position by being knotted under the chin, the arrangement being such that when tied the ears are drawn or pressed close to the head of the wearer. The purpose of the cap is to hold the child's ears close to the head in order to prevent the disfigurement of the standing out of the ears. It is also claimed that by wearing them at night children's hair will not become disarranged, and that a child who wears one while sleeping will unconsciously acquire the habit of breathing through the nose instead of through the open mouth. But these two latter claims are of no real importance, for it is evident from an inspection of the article and from the record that the only substantial purpose of the cap is to prevent or relieve a mild deformity by pressing the ears close to the head. Plainly the article is not an ear cap to protect the ear against cold, nor is it possible to conceive of its being worn for adornment. As we must find that the prevention of physical misshape is what the caps are intended for, it would be unreasonable to classify them as wearing apparel under section 314. In our opinion the ear caps are best described as braces, and ought to be classified under paragraph 320. They are braces in that they hold the ears of the wearer firmly in a position close against the head. Thus the cap braces the ears, and by pressure a tendency of the ear to lean and grow outward is sought to be relieved. United States v. A. Steinhardt & Bro. (141 Fed Rep., 494; T. D. 12112) is not directly pertinent, because the court there dealt with garters, and decided that they were wearing apparel. With that ruling we should probably be in accord; but here we have merchandise of a very different character. The decision of the Board of General Appraisers is reversed, and the cause is remanded with directions to proceed as herein indicated. DE VRIES, Associate Judge, being disqualified, took no part in the hearing or decision of this case. UNITED STATES v. SUSSFELD (No. 9). UNITED STATES v. BERST (No. 51).1 MOVING PICTURE FILMS-PHOTOGRAPHS. Cinematograph, or moving picture, films are photographs and were dutiable under paragraph 403, tariff act of 1897. United States Court of Customs Appeals, October 28, 1910. APPEALS from the Circuit Court of the United States for the Southern District of New York (T. D. 30146-T. D. 29643). [Affirmed.] D. Frank Lloyd, Assistant Attorney General (Thomas J. Doherty on the brief), for the United States. Comstock & Washburn for J. A. Berst; Curie, Smith & Maxwell for Sussfeld, Lorsch & Co., appellees. Before MONTGOMERY, HUNT, SMITH, and BARBER, Judges. MONTGOMERY, Presiding Judge, delivered the opinion of the court: These appeals are from a decision of the Circuit Court for the Southern District of New York affirming the decision of the Board of United States General Appraisers, G. A. 6889 (T. D. 29643). The importations in question were moving-picture films, so called. The articles had been assessed for duty at 65 cents per pound and 25 per cent ad valorem as celluloid articles, under the provisions of paragraph 17 of the tariff act of 1897, which reads as follows: Collodion and all compounds of pyroxylin, whether known as celluloid or by any other name, fifty cents per pound; rolled or in sheets, unpolished, and not made up into articles, sixty cents per pound; if in finished or partly finished articles, and articles of which collodion or any compound of pyroxylin is the component material of chief value, sixty-five cents per pound and twenty-five per centum ad valorem. 1 Reported in T. D. 31030 (19 Treas. Dec., 1103). The importers claimed that the articles were properly dutiable as photographs under paragraph 403 of said act, which reads as follows: Books of all kinds, including blank books and pamphlets, and engravings bound or unbound, photographs, etchings, maps, charts, music in books or sheets, and printed matter, all the foregoing not specially provided for in this act, twenty-five per centum ad valorem. and, alternatively, that the articles were dutiable as photographic dry plates or films under paragraph 458. The Board of Appraisers and the circuit court sustained the protest, holding that the importations were properly classified as photographs, and the Government brings the case here by appeal. The evidence in the record satisfies us that these articles are photographs. They come within the definition given in the Standard Dictionary of a photograph, namely, "a picture taken by photography; a picture due to the action of light on a sensitized film which may have for a support glass, celluloid, paper, or other suitable material." Not only is this true, but in the case of Edison v. Lubin (122 Fed. Rep., 240) the Circuit Court of Appeals for the Third Circuit held directly that these articles were photographs. That case was one in which the complainant proceeded under the copyright law, but the discussion of the subject of whether these are or are not photographs is full and complete. (See also American Mutoscope & Biograph Co. v. Edison Mfg. Co., 137 Fed. Rep., 262; Edison v. American Mutoscope Co., 114 Fed. Rep., 926; and Edison v. American Mutoscope & Biograph Co., 151 Fed. Rep., 767.) So we find that the importations in question are in fact photographs; that like articles have been judicially determined to be photographs; and that photographs are named eo nomine in the section invoked by the importer. It would seem, therefore, that unless some excellent reason can be furnished for giving the term photograph as used in the tariff act a different meaning from that which is given by the lexicographers and by the courts, the decision of the circuit court was right. It is urged in the brief of counsel for the Government that the Federal cases cited are not in point, for the reason, as stated, that extreme liberality marks the interpretation of the copyright laws, and that decisions under that statute are unsafe precedents to follow in construing the tariff law. We need not determine whether counsel for the Government is correct is asserting that the courts are uniformly liberal in construing the copyright laws. If he is correct in this, it is equally true that the courts are liberal in favor of the importer in construing revenue statutes. See Hartranft v. Wiegmann (121 U. S., 609); Swan & Finch Co. v. United States (190 U. S., 143); and Eidman v. Martinez (184 U. S., 583). It is further urged by the appellant that by a long-continued construction of the Treasury Department and the Board of Appraisers prior to the naming of photographs eo nomine in the tariff act, which first occurred in the act of 1890, as well as since that time, has placed a meaning upon the term "photograph" which limits it to photographs on paper. We have examined with care the various Treasury decisions cited. It can be said of them that none of the cases deals with precisely such an article as that involved in this case. It is true that the department, prior to the tariff act of 1890, classified photographs by similitude as engravings, and usually limited such classification to photographs on paper, although the cases in which this question arose were usually cases where the photographs were mounted on glass and where the glass was the article of chief value. But in T. D. 6168, covered mounted photographs were held dutiable at 25 per cent ad valorem by similitude to engravings. The decision says: The articles consist of photographic views of important places abroad, which are framed and mounted in a cheap manner for the purpose of being used in an instrument called the stereopticon. The sample transmitted indicates that the photographic view is the leading feature and portion of chief value, and that the mounting and frame are only incidents in connection with the proposed use of the view. So it would appear that prior to the tariff act of 1890 these articles were classified either as engravings by similitude or as unenumerated manufactured articles. But, as before stated, we have discovered no decision in which articles of precisely the character of the present were classified according to the material of which they were composed. We think there was no such established meaning to these words as prevents our giving them their commonly accepted meaning and the meaning judicially ascribed to these words by courts of high authority. The case was rightly decided and the decision of the circuit court and of the Board of General Appraisers is affirmed. DE VRIES, Associate Judge, being disqualified, took no part in the hearing or decision of this case. UNITED STATES v. HABICHT (No. 10).1 1. NONIMPORTATION. Merchandise the usefulness of which as a commercial commodity has been entirely destroyed and that has been condemned and destroyed as unsanitary is not an article of merchandise of value imported into this country and can have no dutiable status. 2. PROCEDURE AS TO NONIMPORTATION. Where an importer has removed in bond to his own warehouse a consignment of merchandise, and it is there found that more than 10 per cent of the consignment had been rendered in transit totally valueless he is not remitted as of course to proceeding alone under section 23 of the customs administrative act of 1890, but may seek his remedy as well by protest under section 14 of the same act. 1 Reported in T. D. 31031 (19 Treas. Dec., 1105). |