UNITED STATES v. ACKER, MERRALL & CONDIT CO. et al.

UNITED STATES v. ACKER, MERRALL & CONDIT CO. et al. (Circuit Court of Appeals, Second Circuit. July 8, 1909.) No. 244 (5,068). Customs Duties (§ 43)' — Classification—Pickled Walnuts — Similitude— “Pickles.” The provision for “pickles” in Tariff Act July 24, 1897, c. 11, § 1, Schedule G, par. 241, 30 Stat. 170 (U. S. Comp. St. 1901, p. 1649), covers only vegetables. Pickled walnuts are therefore excluded therefrom, and are classifiable as unenumerated manufactures under section 6, 30 Stat. 205 (U. S. Comp. St. 1901, p. 1693). [Ed. Note. — For other cases, see Customs Duties, Cent. Dig. f 147; Dec. Dig. § 43.*] Appeal from the Circuit Court of the United States for the Southern District of New York. The Circuit Court reversed a decision by the Board of United States General Appraisers (G. A. 6,663; T. D. 28,423), which had affirmed the assessment of duty by the collector of customs at the port of New York. The opinion below reads as follows: PLATT, District. Judge (orally). The merchandise in question consists of pickled walnuts. It was assessed for duty at 40 per cent, ad valorem as “pickles,” under paragraph 241 of the tariff act of 1807 (Act July 24, 1897, c. 11, § 1, Schedule G. 30 Stat. 170 [U. S. Comp. St. 1901, p. 1649]). The importers claim in their protest that it is dutiable as unshelled walnuts at three cents per pound, under paragraph 270, or, alternatively, as an unenumerated manufactured article, under section 6 of said act. The Board of General Appraisers sustained the collector’s classification, and from that decision the importers have appealed to this court. Upon the argument importers’ counsel abandoned his claim under paragraph 270, and now relies upon the provision in section 6. An examination of the record does not show that the statement or finding of the Board that this “commodity is the walnut, plucked green, before the shell of the nut has formed,” etc., is supported by any testimony. In order to be dutiable under the provisions of paragraph 241, the article to be assessed must be a vegetable. In re Johnson (C. C.) 56 Fed. 822. In no sense can this walnut be regarded as a vegetable. The merchandise is therefore dutiable at 20 per cent, ad valorem under said section 6. Decision of the Board reversed. D. Frank Uoyd, Asst. U. S. Atty. B. A. Levett, for importers. Before EACOMBE, WARD, and NOYES, Circuit Judges. For other eases see same topic & § number in Dec. & Am. Digs. 1907 to date, & Rep’r Indexes [MAJORITY — PER CURIAM.] PER CURIAM. Decision affirmed, on the opinion of Platt, District Judge.