F. W. MYERS & CO. v. UNITED STATES

F. W. MYERS & CO. v. UNITED STATES. (Circuit Court of Appeals, Second Circuit. April 14, 1908.) No. 157 (1,810). 1. Customs Duties — Classification—Ground Cobundum — “Emeby”—Similitude. Corundum and emery being used for the sain-e purposes, and emery being merely an impure grade of corundum, ground corundum ore is similar to emery and is dutiable by similitude under Tariff Act July 24, 1897. c. 11, § 1, Schedule N, par. 419, 30 Stat. 191 (U. S. Comp. St. 1901, p. 1674), relating to “emery, * * * ground,” etc. 2. Same — “Sand.” In Tariff Act July 24, 1897, c. 11, § 2, Free List, par. 671, 30 Stat. 201 (U. S. Comp. St. 1901, p. 1688), relating to “sand, crude or manufactured,” the term “sand” is inapplicable to any metalliferous mineral, though it be in comminuted fragments; and corundum ore, being a mineral of this character, is not, when ground, classible as “sand, * * * manufactured.” [Ed. Note. — For other definitions, see Words and Phrases, yol. 7, pr>. 6326, 6327.1 Appeal from the Circuit Court of the United States for the District of Vermont.' For decision below, see 155 Fed. 502, affirming a decision by the Board of United States General Appraisers, G. A. 6,277 ('if. D. 27,059), which had affirmed the assessment of duty by the collector of customs at the port of Burlington. Walden & Webster (Henry J. Webster, of counsel), for importers. Alexander Dunnett, U. S. Atty. Before UACOMBE, WARD, and NOYES, Circuit Judges. [MAJORITY — NOYES, Circuit Judge.] NOYES, Circuit Judge. The merchandise in question is ground corundum ore. The government contends that it comes by similitude within paragraph 419 of the tariff act (Act July 24, 1897, c. 11, § 1, Schedule N, 30 Stat. 191 [U. S. Comp. St. 1901, p. 167'4]): “Emery grains, and emery manufactured, ground, pulverized or refined, one cent per pound.” The importers claim that it is free of duty, as manufactured sand, under paragraph 671: “■* * * sand, crude or manufactured, not otherwise provided for in this act.” Corundum is “alumina, or the oxide of the metal aluminum, as found native in a crystalline state.” Century Dictionary. Emery is “granular corundum, more or less impure, generally containing magnetic iron.” Century Dictionary. Similar definitions appear in other authorities, and it cannot be questioned that emery is merely an impure grade of corundum, or that emery and corundum are used for the same purposes. Corundum is certainly similar to emery. In fact, it is almost the identical article. It was properly assessed lor duty as emery under the similitude clause, unless the importers’ contention that it actually is sand be correct. Definitions of the word “sand” may be found sufficiently broad to-include any mineral when reduced to fine particles. Other definitions limit the term to fine particles of stone, and in ordinary use it is confined to fine particles of silicious stone; common sand consisting almost entirely of silica. The decision of this case, however, does not require us to accurately define the word “sand.” We are rather called upon to say what it does not include, as used in the tariff act, than what it does include. Obviously the word as so employed does not include gold dust or any of the precious metals when reduced to fine particles. Almost equally clear is it that the baser metals — e. g., iron or zinc— when ground would not commercially be called sand; and we think it also follows that the term is inapplicable to any metalliferous mineral, although it be in comminuted fragments. Corundum is a mineral of this character. It is an ore, rather than a mere stone or rock, and, in our opinion, does not become manufactured sand when ground. The decision of the Circuit Court is affirmed.