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we can not escape the conclusion forced upon us by this disconjunctive coalition by Congress that treatment by ice or the refrigeration process was deemed by Congress to be one of the methods of "preparation for preservation" and not the "preservation" of such merchandise.

Paragraph 549, on the other hand, in the language by which it is said to exclude this merchandise therefrom speaks of "fish roe preserved for food purposes." Reading the two paragraphs together, it would appear that Congress contemplated the two conditions of fish roe or fish, one prepared for preservation, for example, by being packed in ice or refrigerated, and the other actually preserved, which is the condition contemplated by paragraph 549 in order to be excluded therefrom, and that fish roe could be "prepared for preservation" and yet fall short of the status known as "preserved," as used in paragraph 549. Undoubtedly the fish roe in this case was prepared for preservation within purview of paragraphs 258 and 261, by being cleansed and possibly hardened with the salt and refrigerated, but we can not hold that it was "preserved for food purposes" so as to exclude it from paragraph 549, when its agreed condition here is plainly assigned a different statutory status by Congress. The exact contrary is a logical result. In the presence of another statutory status in cognate provisions of the law, plainly applicable to merchandise, the intention of Congress seems clear not to have intended to include them in a different and associated description.

The word "preserved" as used by Congress in tariff laws has been frequently the subject of interpretation. The uniform trend of decisions has been such as to establish a well-settled principle in the tariff interpretation, that the use of any instrumentality such as salt or sulphur fumes or any other agency of preservation in a limited extent. in order to conserve the same in transit does not bring the goods into that condition known as "preserved" as that term is used in the tariff laws. Thus in Causse Manufacturing Co. v. United States (151 Fed. Rep., 4) the Circuit Court of Appeals for the Second Circuit makes this statement of the case:

The importations in controversy are cherries from which the pits have been removed, the fruit then washed several times in water, as a result of which the dirt and free juices were removed, then exposed to sulphur fumes, and then packed in casks in a weak solution of salt water in order to preserve the fruit in transit, the salt ranging in percentage from 0.118 to 0.402. They were designed to be converted into candied cherries, which is done by washing out the salt and sulphur dust, then boiling them in fresh water, and then boiling them in sugar sirup.

It was held by the court upon that statement of facts that the fruits were not preserved within paragraph 252 of the tariff act of 1897.

So in the cauliflower case, decided by the same court-in that case the merchandise was cauliflower, which in the language of the court

was cauliflower trimmed, washed, and packed in brine for preservation during transportation; the court saying:

This is precisely what is done in this country when it is desired to prevent cauliflower from decaying. We can not believe that this effort to keep cauliflower in "the way the farmer brings them to you" can be regarded as having a directly opposite effect, changing them from their natural state to a prepared or preserved

state.

In that case the brine was sufficiently strong to act as a medium to prevent decomposition during the transit. In that case the brine used was in the main solely as a preservative agency during transit of the raw material which subsequently was to be prepared or preserved for the market upon reaching this country. In this case the use of the salt did not go that far, and even so its quantity as found was almost exactly that in the Causse case, which while sufficient in that case was insufficient here, else why the very expensive and constant application of the refrigeration process?

We are, therefore, of the opinion that this merchandise was not preserved as imported within proviso to paragraph 549 of the free list of the tariff act of 1897. Inasmuch, then, as paragraph 549 is the only provision in the tariff law providing for "fish eggs" eo nomine, and these as imported were not within the excluding exception of that paragraph, this merchandise of necessity falls within that paragraph As the goods were assessed for duty by similitude under paragraph 258 and 261, this provision becomes applicable before the similitude clause can be invoked. Indeed, if the merchandise were directly within the terms of said paragraphs, this eo nomine term, being more specific than the others, is controlling.

The decision of the circuit court and the Board of General Appraisers is reversed and the case remanded.

LAI MING et al. v. UNITED STATES (No. 40).1

CHINESE SHOES OR SLIPPERS, EMBROIDERED.

Chinese shoes or slippers, embroidered either by hand or machinery, are dutiable under paragraph 390, tariff act 1897, and not under paragraph 438 of said act. United States Court of Customs Appeals, June 22, 1910.

TRANSFERRED from United States Circuit Court for Southern District of New York (T. D. 29610).

[Affirmed.]

McLaughlin, Russell, Coe & Sprague (Edward P. Sharretts of counsel) for appellants. D. Frank Lloyd, Assistant Attorney General (Martin T. Baldwin on the brief), for the United States.

Before MONTGOMERY, HUNT, SMITH, and BARBER, Judges.

HUNT, Judge, delivered the opinion of the court:

This case presents the question whether or not the duties assessed upon certain Chinese shoes or slippers imported by appel

1 Reported in T. D. 30770 (19 Treas. Dec., 769).

lants at the port of New York were proper. The collector imposed duty at the rate of 60 per cent ad valorem under paragraph 390 of the tariff act of 1897; but the importers contended that the shoes were only liable at the rate of 25 per cent ad valorem as prescribed by paragraph 438 of the aforementioned tariff act. The Board of Appraisers sustained the collector, and it is the determination of the board that is under review.

The shoes involved are such as Chinese people often wear. They are made of leather as the component of chief value and are embroidered with silk.

So far as material, the paragraphs of the tariff act of 1897 bearing upon the case are as follows:

339. Laces, lace window curtains, tidies, pillow shams, bed sets, insertings, flouncings, and other lace articles; handkerchiefs, napkins, wearing apparel, and other articles, made wholly or in part of lace, or in imitation of lace; nets or nettings, veils and veilings, etamines, vitrages, neck rufflings, ruchings, tuckings, flutings, and quillings; embroideries and all trimmings, including braids, edgings, insertings, flouncings, galloons, gorings, and bands; wearing apparel, handkerchiefs, and other articles or fabrics embroidered in any manner by hand or machinery, whether with a letter, monogram, or otherwise; tamboured or appliquéed articles, fabrics or wearing apparel; hemstitched or tucked flouncings or skirtings, and articles made wholly or in part of rufflings, tuckings, or ruchings; all of the foregoing, composed wholly or in chief value of flax, cotton, or other vegetable fiber, and not elsewhere specially provided for in this act, whether composed in part of india rubber or otherwise, sixty per centum ad valorem: Provided, That no wearing apparel or other article or textile fabric, when embroidered by hand or machinery, shall pay duty at a less rate than that imposed in any schedule of this act upon any embroideries of the materials of which such embroidery is composed.

390. Laces, and articles made wholly or in part of lace, edgings, imsertings, galloons, chiffon or other flouncings, nets or nettings and veilings, neck rufflings, ruchings, braids, fringes, trimmings, embroideries and articles embroidered by hand or machinery, or tamboured or appliqued, clothing ready made, and articles of wearing apparel of every description, including knit goods, made up or manufactured in whole or in part by the tailor, seamstress, or manufacturer; all of the above-named articles made of silk, or of which silk is the component material of chief value, not specially provided for in this act, and silk goods ornamented with beads or spangles, of whatever material composed, sixty per centum ad valorem: Provided, That any wearing apparel or other articles provided for in this paragraph (except gloves) when composed in part of indiarubber, shall be subject to a duty of sixty per centum ad valorem.

438. * * Boots and shoes made of leather, twenty-five per centum ad valo

rem.

Looking at these several statutes, it is our opinion that the words "wearing apparel" as used in the proviso of paragraph 339 include shoes, and that if such shoes are embroidered by hand or machinery, as are the exhibits submitted with this record, they must be held to be dutiable as prescribed by the terms of the proviso.

The proviso under consideration is not repugnant to the purview of the section; its general purpose is to declare that the articles described within it shall be dutiable as fixed by its terms, and the effect is to extend its operation to cases not intended by Congress to be brought within the more general enactments preceding it.

Justice Field, for the Supreme Court, in Georgia Banking Co. v. Smith (128 U. S., 174), commenting upon the difficulties of construing the word "provided" used in a statute, said:

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The general purpose of a proviso, as is well known, is to except the clause covered by it from the general provisions of a statute, or from some provisions of it, or to qualify the operation of the statute in some particular. But it is often used in other senses. It is a common practice in legislative proceedings, on the consideration of bills, for parties desirous of securing amendments to them, to precede their proposed amendments with the term "provided," so as to declare that, notwithstanding existing provisions, the one thus expressed is to prevail, thus having no greater signification than would be attached to the conjunction "but" or "and" in the same place, and simply serving to separate or distinguish the different paragraphs or sentences. Several illustrations are given by counsel of the use of the term in this sense, showing, in such cases, where an amendment has been made, though the provision following often has no relation to what precedes it.

In Carter, Webster & Co. v. United States (143 Fed. Rep., 256) the Circuit Court of Appeals for the Fourth Circuit held that the enactment of the proviso extended far beyond the body of the paragraph and became applicable to textile fabrics of whatever material composed when embroidered; and in Jaeckel & Sons v. United States (172 Fed. Rep., 292) the Circuit Court of Appeals for the Second Circuit declined to hold that the wearing apparel covered by the proviso must be confined to such articles of wearing apparel only as are textiles or made of textiles. The court well reasoned that if the second "or" of the proviso were "of," the most restricted application would obtain; but as the enumeration was "wearing apparel," "other article," and "textile fabric," it was evident that a broader construction is the proper one. The scope of the provision of the section was also considered in Lichtenstein v. United States (154 Fed. Rep., 736), where the court held that the doctrine of noscitur a sociis was not correctly invoked under a contention that paragraph 390 refers only to such articles as are embraced ejusdem generis with laces, lace edgings, insertings, galloons, chiffons, or other flouncings and trimmings, and that a wooden folding screen carved and gilded with embroidered silk panels was properly dutiable under the terms of the proviso; and in Kauffman v. United States (128 Fed. Rep., 468) the court sustained a ruling that perforated pasteboard cards upon the surfaces of which are sewn mottoes in fancy letters with woolen and metal threads, and upon the face of which within the mottoes were affixed by paste or other adhesive material pictures surrounded by wreaths, were within the provisions of paragraph 339, relating to embroideries and appliquéed articles.

We cite these opinions to illustrate the views of the several courts, though we do not mean to go any further than the particular case before us warrants. As to it we hold the proviso applies.

Judgment affirmed.

Judge DE VRIES did not participate in the hearing or decision of this case.

UNITED STATES v. MARSCHING (No. 124). UNITED STATES v. DRAKENFELD (No. 125).1

TIME WITHIN WHICH APPEALS CAN BE TAKEN.

Upon the organization of this court, April 22, 1910, the provisions of the organic act as to appeals became fully effective, and sixty days, not thirty, marked the period within which an appeal could be taken from a decision of the Board of General Appraisers.

United States Court of Customs Appeals, June 22, 1910.

MOTION to dismiss appeals taken from Board of United States General Appraisers. [Affirmed.]

D. Frank Lloyd, Assistant Attorney General (Charles E. McNabb on the brief), for the United States.

Comstock & Washburn (Albert H. Washburn and John A. Kratz, jr., on the brief) for the motion.

Before MONTGOMERY, HUNT, SMITH, BARBER, and DE VRIES, Judges. MONTGOMERY, Presiding Judge, delivered the opinion of the court: Motions are filed in these cases to dismiss the appeals taken by the Government, on the ground that they were not entered within the time prescribed by law.

The decision of the Board of General Appraisers was filed on the 31st of March, 1910. The appeals were allowed on the 24th day of May. This court was duly organized under the act of August 5, 1909, on the 22d day of April of the present year. The provisions of the organic act, section 29 of the tariff act, which are pertinent, read as follows:

After the organization of said court no appeal shall be taken or allowed from any Board of United States General Appraisers to any other court, and no appellate jurisdiction shall thereafter be exercised or allowed by any other courts in cases decided by said Board of United States General Appraisers; but all appeals allowed by law from such Board of General Appraisers shall be subject to review only in the Court of Customs Appeals hereby established, according to the provisions of this act

The Court of Customs Appeals established by this act shall exercise exclusive appellate jurisdiction to review by appeal, as provided by this act, final decisions by a Board of General Appraisers in all cases. *

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If the importer, owner, consignee, or agent of any imported merchandise, or the collector or Secretary of the Treasury, shall be dissatisfied with the decision of the Board of General Appraisers as to the construction of the law and the facts respecting the classification of such merchandise and the rate of duty imposed thereon under such classification, or with any other appealable decision of said board, they, or either of them, may, within sixty days next after the entry of such decree or judgment, and not afterwards, apply to the Court of Customs Appeals for a review of the questions of law and fact involved in such decision. * * * Thereupon the court shall immediately order the Board of General Appraisers to transmit to said court the record and evidence taken by them.

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Said Court of Customs Appeals shall have power to review any decision or matter within its jurisdiction and may affirm, modify, or reverse the same and remand the case with such orders as may seem to it proper in the premises.

1 Reported in T. D. 30771 (19 Treas. Dec., 772).

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