Petition for Writ of Certiorari — Goat & Sheepskin Import Co. v. United States

an the Supreme Court of the United States.

GOAT & SHEEPSKIN IMPORT CO.,

Petitioner,

against

THE UNITED STATES,

Respondent.

Suit No. 3641.

PETITION FOR WRIT OF CERTIORARI TO THE CIR-

CUIT COURT OF APPEALS, FOR THE SECOND CIR-

CUIT, AND BRIEF IN SUPPORT THEREOF.

Epwarp 8S. Hatcu,

100 Broadway,

New York City,

and

J. Stuart ToMPKINS,

56 Pine Street,

New York City,

Of Counsel for Petitioner.

APPEAL PRINTING COMPANY, 14-16 VESEY ST., NEW YORK

de ated

IN THE

Supreme Court of the United States.

Goat & SHEEPSKIN IMPORT Com-

PANY,

Petitioner,

against Suit No. 3641.

Tue UNITED STATES,

Respondent.

Petition for Writ of Certiorari to the

Circuit Court of Appeals, for the

Second Circuit, and Brief in Sup-

port Thereof.

The Goat & Sheepskin Import Co., through its

counsel, Edward S. Hatch and J. Stuart Tompkins,

respectfully prays that a writ of certiorari be

allowed herein, to bring the case before this Court

for a review of the decree of the United States

Circuit Court of Appeals for the Second Circuit,

affirming the decision of the Circuit Court without

opinion, and adjudging that an article commer-

cially known as mocha hair, used for stuffing

purposes (and never as wool) was properly assessed

for duty at a rate equivalent to more than one

hundred per cent. ad valorem, as ‘‘wools of the

third class.’’

°

-_

The Importance of the Issue.

This application is one of the utmost importance to

the shoe manufacturers of this country who consume

large quantities of the mocha skins which are the

subject of this suit Itis a matter of public

knowledge that the present Tariff Act, with its

duty on hides, imposes a heavy burden on those

manufacturers. The judgment in the present

case rests upon a change in practice of the govern-

ment wool examiner, at New York His testi-

mony furnishes a mere shred of evidence to sis-

tain his change in practice and alone supports the

present judgment, as against the testimony of

nine witnesses to the contrary, called from various

trades. We confidently expect that this Court

will review the proceedings in this case, which, if

allowed to stand, will aggrevate the burden of a

class of domestic manufacturers, who are already

demanding tariff revision to relieve them from

the present duty on hides, and who snffer further,

in the present case, by the imposition of duty on

the dead hair or hemp on the skins, which the ex-

aminer, after ten years of practice to the contrary,

decided to be wool.

Brief in Support of the Petition.

The merchandise consists of mocha _ white

sheepskins from Hodeida, Arabia, with a com-

mercially worthless hair or substance there-

on, in that it costs more to remove the

hair from the pelts than the hair eventually

sells for (fols. 185, 110). This hair was returned

for duty at three cents per pound under the pro-

visions of Paragraphs 351, 358 and 360 of the

Tariff Act of July 24, 1897, as ‘‘wools of the

third class,’’ on the skin.

8

The paragraphs above named read as follows:

**351. Class three, that is to say, Donskoi,

‘native South American, Cordova, Val-

‘paraiso, native Smyrna, Russian Camels’

‘thair, and all such wools of like character as

‘thave been heretofore usually imported into

“the United States from Turkey. Greece,

“Svria and elsewhere, excepting improved

‘‘wools hereinafter provided for.”’

**858. On wools of the third class and on

‘camels’ hair of the third class the value

‘‘whereof shall be twelve cents or less per

‘pound, the duty shall be four cents per

‘‘pound.”’

‘360. The duty on wools on the skin shall

‘*be one cent less per pound than is imposed

‘in this schedule on other wools of the same

‘class and condition, the quantity and value

‘to be ascertained under such rules as the

‘‘Secretary of the Treasury may prescribe.’’

The merchandise was claimed in the protest to

be entitled to free entry under Paragraph 664 of

the Free List, reading as follows:

“664. Skins of all kinds, raw (except sheep-

“skins with the wool on), and hides not

‘“‘specially provided for in this Act;”

and in some of the protests, the substance on the

skins, if any, was claimed to be free of duty under

Paragraph 571 of the Free List, which reads as

follows:

‘571. Hair of horse, cattle, and other ani-

‘mals, cleaned or uncleaned, drawn or un-

‘drawn, but unmannfactured, not specially

‘provided for in this Act; and human hair,

“raw, uncleaned, and not drawn.”’

The Board of General Appraisers and the Circuit

4

Court held, as we contend contrary to all the evi-

dence in the case and in total disregard of the

doctrine of commercial designation as laid down

by this Court, that the substance on the skins

should be assessed for duty as wool of the third

class, and overruled the protests.

(Decisions, fols. 149-152, 208-211.)

The Circuit Court of Appeals for the Second

Circuit, after giving the matter exceptionally

brief consideration, affirmed the decision of the

Circuit Court without opinion.

The evidence in this case is uni-

form, convincing and uncontro-

verted that the substance on these

mocha whitehead sheepskins, ac-

cording to the general commercial

or trade understanding, as well as

according to common understand-

ing, is not wool, but, on the contrary,

is hair, and it follows that the Col-

lector’s classification of the _ sub-

stance as wool of Class 3 was erro-

neous.

(A)

It is difficult (not tosay impossible) to understand

how any person, after carefully reading the testi-

mony in this case, and thereafter examining the

official sample in the light of that evidence, could

arrive at the conclusion that the growth on these

skins is wool ina trade sense or any other sense, or

that it is anything more or less than mocha hair.

5

The Government failed to call a single witness

to substantiate its claim. On the other hand the

importers called six witnesses before the Board,

and three additional witnesses in the Circuit

Court, some of them well known and generally

recognized as men of high standing and probity,

and their combined evidence is wholly convincing

that the substance or growth on these skins would

not be and never has been recognized in the trade

as wool, that on the contrary it has always been

generally and uniformly bought and sold only

under the name of ‘‘mocha hair,’’ and isso known

and recognized not only in commerce, but also

according to common understanding; that it is

used for purposes other than those to which wool

is applied—and that this mocha hair would not be

accepted as a good delivery under an order for

even low grade wool.

Upon this point, Mr. Ritchie, an entirely disin-

terested witness, testified in the Circuit Court as

follows:

“Q. Would not this growth on Exhibit I

‘be a good delivery on an order for low grade

‘*wool/

‘*A. No, sir.

“Q. Why?

‘A. Becanse it is not commercially known

‘tas wool by the people that use it; you can’t

‘go around and sell that to these woolen

‘manufacturers and tell them it is wool;

‘‘they will give you the laugh (fol. 199).

* * * * *

*Q. You say there is no wool at all on that

‘skin, Exhibit I?

“A. Not as I would know it commercially,

“as being a hair dealer and low grade wool

‘‘dealer.

‘(. There are different kinds and classes

‘‘and grades of wool, are there not?

6

‘‘A. Hundreds of classes and grades. But

**T wouldn’t have the nerve to offer that (re-

‘“ferring to growth on Exhibit I) to any man

‘tas wool’’ (fol. 202).

The above quoted testimony of Mr. Ritchie is

abundantly corroborated, the foregoing being given

simply as a sample of the character of the evidence

which appears all through this record from be-

ginning to end.

See the testimony of

Mr. Souls, fols. 86-89.

Mr. Klauder, fols. 97-98, 101, 104.

Mr. Parkhurst, fols. 113-115, 117-119.

Mr. Simon, fols. 126-127.

Mr. Weiler, fols. 191-192,

as well as the testimony of

Mr. Ritchie, fols. 199-202,

all of which was admitted without any objection

being raised on the part of Government Counsel,

and all of which, it is submitted, strongly tends

to prove that the covering on these low grade

sheepskins on and prior to July 24, 1897, would

never have been considered, accepted, or sold as

wool, but that, on the contrary, it was on and prior

to July 24, 1897, uniformly regarded, bought and

sold at wholesale in the United States as hair.

This general and uniform commercial understand-

ing and usage, excluding this article from the

category of merchandise regarded in trade as

‘‘wool,”’ and including it in the category of mer-

chandise known as “‘hair.’’ should be taken into

consideration and be given weight in determining

whether or not this merchandise was properly

7

classified by the Collector under Paragraph 358 of

the Tariff Law of 1897, as ‘‘wool.”’

Arthur vs. Morrison, 96 U. 8., 108, 110.

Von Stade vos. Arthur, 13 Blatch. ( U. 8.),

261.

Elliott vs. Swartwout, 10 Peters, 137, 151.

United States vs. Reiss & Brady (C. C.

A.), 136 Fed. Rep., 741.

Robertson vs. Salomon, 130 U.8., 412,

4165.

Hedden vs. Richard, 149 U.S , 346.

In Von Stade vs. Arthur, 13 Blatchf. (U. 8.),

251, it was held that in the Tariff Acts the article

‘“‘bristles’’ was separately classified and regarded as

a different article from hair, and ‘‘bristles’’ were

held not to be included in the general words ‘‘the

hair of an animal.”’

On similar reasoning, in the case at bar, it may

be held that ‘‘mocha hair,’ in commercial par-

lance and under trade understanding, is an article

separate and distinct from ‘‘wool.’’

Elliott vs. Swartwout, 10 Peters, 96, tends to

support our contention that the distinct article

known in commerce under the denomination of

‘mocha hair’ (and never as ‘‘wool’’) should not

be classified as wool, especially as there is an enu-

meration in the free list sufficiently comprehensive

to include it.

In Elliott vs. Swartwout, 10 Peters, 137, 151, the

question for determination was whether certain

‘‘worsted shawls with cotton borders, and worsted

suspenders with cotton straps or ends,’’ ‘‘were or

were not a manufacture of wool, or of which wool

was a component part, within the meaning of the

8

words ‘all other manufactures of wool, or of which

wool is a component part,’ in the second article of

the second section of the Act of Congress of the

14th of July, in the year 1832.”’

Mr. Justice Tuompson, who delivered the

opinion of the Court, said:

‘It is stated in the point, as a fact, and to

‘‘be taken in connection with the question,

‘that worsted is made out of wool by combing;

‘but that it becomes thereby a distinct article

‘well known in commerce under the denomi-

‘‘nation of worsted.

‘‘Laws imposing duties on importations of

‘‘goods are intended for practical use and ap-

‘plication by men engaged in commerce; and

‘thence it has become a settled rule in the in-

‘‘terpretation of statutes of this description,

‘to construe the language adopted by the Leg-

‘Gslature, and particularly in the denomina-

‘tion of articles, according to the commer-

‘jal understanding of the terms used. This

“rule is fully recognized and established by

“this Court inthe case of The 200 Chests of

‘*Tea, reported in 9 Wheat., 438. The Court

‘there say the object of the duty laws is to

‘‘raise revenue, and for this purpose to class

‘substances according to the general usage

‘and known denominations of trade. Whether

“a particular article was designated by one

‘‘name or another. in the country of its origin,

‘tor whether it were a simple or mixed sub-

“stance, was of no importance in the view of

‘‘the Legislature. Itapplied its attention to

‘the description of articles as they derived

“their appellations in our own markets, in

‘four domestic as well as our foreign traffic;

‘‘and it would have been as dangerous as use-

“less to attempt any other classification than

‘that derived from the actual business of

‘human life. It being admitted, in this case,

“that worsted is a distinct article well known

9

“in commerce under that denomination, we

‘‘must understand Congress as using the term

‘in that commercial sense, and as contra-

‘distinguished from wool, and woolen goods,

‘and other well known denomination of

‘‘goods.”

And the Court held that the shawls and sus-

penders were not a manufacture of wool, or of

which wool is a component part.

The case of Hilliott vs. Swartwout, 10 Peters, 137,

was approved and followed in

Seeberger vs. Cahn, 137 U. 8., 96,

wherein the same restrictive meaning, so far as

the tariff law was concerned, was given to the

phrase ‘‘manufactures of wool.’’

In United States vs. Reiss & Brady (UC. C. A.),

136 Fed. Rep., 741, it was held that figs preserved

in spirits or syrup, and with other fruits similarly

preserved ‘known commercially as a class by

themselves,’? were not dutiable as ‘‘figs.’”’ The

Court, speaking through Lacomsr, J., said, at

page 743:

‘‘We are further of opinion that the term

‘* ‘figs’ when used without qualifying descrip-

“tive terms, in commercial significance means

‘‘the dried figs, commonly imported and sold

‘tin baskets or boxes, which, like the other

‘dried fruits mentioned eo nomine in Para-

‘‘oraph 264, plums, prunes, prunelles, raisins,

‘dates and currants—are not the preserved

‘fruits of Paragraph 263.”’

The same general principle is enunciated also

by the Cireuit Court of Appeals, First Circuit, in

Brennan vs. United States, 136 Fed. Rep., 743,

wherein it was held in effect that limes in brine,

not being recognized in trade usage as limes,

id

should not be classified as limes under Paragraph

266, but were entitled to free entry rather as

‘fruits in brine, not specially provided for.’’ The

Court said, at page 745:

“The record also shows by uncontradicted

‘evidence * * * that there has always

‘‘been in trade a distinction between limes

‘cand limes in brine, to the extent that, if one

‘asked a merchant for limes, he would be

“given fresh limes.”

So in the case at bar, under similar reasoning,

an article that is generally known, bought and

sold inthe trade in this country as ‘‘hair,’’ or

‘‘mocha hair,’’ for which provision is made in the

free list, and which, according to the uncontra-

dicted evidence, is not commercially recognized as

wool, should not be classified under a provision

covering wools of the third class, and camel’s hair

of the third class (i. e., the hair of the Russian

camel).

Hedden vs. Richard, 149 U. 8., 346.

Robertson vs. Salomon, 130 U.S8., 412,

4165.

It is unnecessary to cite additional authorities

that in the interpretation of tariff laws, commer-

cial or trade usage and understanding are to be

sought for as primary governing factors.

(B)

There isa clear distinction in the Tariff Law of

1897 between “wool” and “hair.’’

Paragraph 358 of the Tariff Act of July 24, 1897:

reads as follows:

‘858. On wools of the third class and on

‘camels’ hair of the third class the value

‘whereof shall be twelve cents or less per

‘pound, the duty shall be four cents per

**pound.’’

Hair of various kinds is separately provided for

under Paragraphs 429, 430 and 571.

The repeated separate namings, and the various

separate provisions in the Tariff Act of 1897 for

‘hair’? and ‘‘wool’’ indicate that the framers of

that law, at least ina tariff sense, considered that

there was some difference or method of distinguish-

ing between the two commodities, hair and wool.

Thus, by Paragraph 358 (the one under which

the merchandise in controversy was classified)

duty is imposed ‘‘on wools of the third class, and

on camel s hair of the third class. It seems clear

that the only kind of hair that Congress intended

to provide for and make dutiable under Paragraph

358 was ‘‘camels’ hair of the third class.’ If

they had intended the hair of any animals other

than the Russian camel (such as the hair of the

alpaca or of hair sheep), to be comprehended under

this Paragraph 358, such intention undoubtedly

would have been expressed by language similar to

that used in Paragraph 350, where we find the fol-

lowing:

**350. Class two, that is to say, Leicester,

‘Cotswold, Lincolnshire, Down combing wools,

‘Canada long wools, or other like combing

‘‘wools of English blood, and usually known

‘‘by the terms herein used, and also hair of

“the camel, Angora goat, alpaca, and other

‘Tike animals.”’

It should be noted also that, while the various

paragraphs of the wool schedule (K) differentiate

wools and the hair of various animals, for dutiable

purposes, Paragraph 360 specifies only ‘‘wools on

ee a

12

the skin,’ and makes no reference to hair of any

kind. The logical inference from this seems to be

that it was not the intention of Congress to impose

duty upon hair, like this hair in question, when

imported on the skin.

That Congress was warranted in distinguishing

in the Act of 1807 between hair and wool is indi-

cated by the evidence in this case, which clearly

shows what constitute the differences according to

trade understanding and practice between this

mocha hair and wool (fols. 88, 103-104, 113-115,

126-127, 137-141, 188, 198-202).

The testimony of Souls (fol. 88), Klander (fols.

103-104), Parkhurst (fols. 113-115), Simon (fols.

126-127). Weiler (fol. 188), Ritchie (fols. 198-

202), and Government Examiper Kitching (fols.

137-141), all tends to support ti proposition that

the mocha hair or covering on the skins in ques-

tion has not the wool fiber at all—that it is coarse,

stubby, bristle like, having neither the ‘‘appear-

ance”’ or ‘‘feel’’ of wool, which is ‘‘soft, pliable,

curly’’—that wool fiber can be pulled apart, and

has a diffierent feeling and action entirely, also can

be spun alone, while hair cannot; that wool has a

curly fiber and the filaments will adhere to each

other, whereas this mocha hair ‘‘separates as you

shake it out and does not adhere, each fiber being

separate’; that this mocha hair is kemp or dead

hair—isn’t commercially suitable for carding,

though you ‘‘might work it with wool’’—and that

it ‘can only be used for stuffing and such pur-

poses.”’

All of the testimonv above summarized was in-

troduced without objection, and is uncontradicted.

(C)

With respect to the value and use of the hair in

controversy, the case at bar is quite similar to the

case of

Keen Sutterlee & Co. vs. United States, Suit

No. 2163,

quoted in T. D. 22831, G. A. 4872, decided by

TOWNSEND, J., in the Circuit Court, for the South-

ern District of New York, wherein the question

was as to the proper classification of the growth

or ‘‘covering on skins taken from goats which are

across between Cape of Good Hope and Persian

or Turkish Angora goats, commercially known as

Cape Bastard skins.’’ In the Keen Sutterlee Co.

case the Circuit Court said:

‘It (the growth on such Cape Bastard

‘‘skins) was neither wool nor hair of the char-

‘acter of the hairof the Angora goat, but was

‘‘a coarser hair, not suitable for spinning or

‘‘for any of the purposes for which wool or

‘‘Angora goat hair is used. The evidence

‘‘shows that the hair in this case in only used

‘‘for mixing with mortar, and is comparatively

valueless” ;

and the Court accordingly held that said Cape

Bastard skins imported with the hair thereon

were entitled to free entry as skins, under Para-

graph 605 of the Tariff Act of 1890. Almost the

same statement as that above quoted, may be

made concerning the growth or covering on the

whitehead hair sheepskins here in question.

{D)

Congress never intended to imposea duty of over

100 per cent. on this commercially worthless ma-

terial.

14

The evidence is is uncontradicted that the price

of these sheepskins is not regulated or influenced at

all by the quantity of hair on the skin, and that

the hair is objectionable, and the more hair there

is, the less money the merchandise will bring per

pound (fols. 71-72); that the skins are bought

solely for the pelt to manufacture leather out of

the pelt, and that short haired skins are prefera-

ble (fol. 109); that in buying, no notice is taken

of the growth, only the value of the pelt being

considered (fol. 187).

The skins are sold to and used by tanners of

glove leather and siioe leather (fols. 73, 112,113);

and the tanners, after removing and washing tle

hair, sell it for stufting purposes—for making sweat

pads for horses, stufling mattresses, etc. (fols. 92-

98, 116-117, 121-122).

The evidence is uncontradicted that the cover-

ing on these skins, even after it is washed and

taken off the skin, sells at wholesale for only from

three to five cents per pound (fol. 109); that the

hair is never long enough to be worth anything

to tanners (fol. 186), and that the cost of remov-

ing the hair from the skins amounts to more than

the hair sells for (fols. 185, 110).

Mr. Klauder, a tanner, testified as follows:

*“(Q. What is the value of the labor that

‘‘vyou put upon this hair of the mocha sbeep-

‘skin per pound?

‘A. The labor is in excess for what we get

‘‘for the hair, the labor in taking the hair off

‘the skin, and washing it, and drying it, does

‘not pay for the labor to take it off and

‘‘handle it—the price we get for the hair does

‘not pay for the labor’’ (foi. 110).

Mr. Ritchie testified that he ‘‘valued (the hair)

washed and cleaned at four and one-half to five

15

cents a pound—that this would be the value of

the hair removed from the skin and washed clean’’

(fols. 196-198).

Figuring even on the basis of what the hair sells

for per pound, washed and cleaned after it is re-

moved from the pelt—three to five cents--the im-

posed duty of three cents per pound is equivalent

to nearly one hundred per cent. ad valorem. That,

however, the duty of three cents per pound is

greatly in excess of one hundred per cent. ad

valorem, is shown by the fact that the cost of re-

moving the hair from the pelts is more than the

selling price of the hair.

Common goat hair, including mocha goat hair,

is admitted free of duty (T. D. 18699 and T.

D. 21739, G. A. 4595); yet according to the un-

contradicted evidence in the case at bar, common

goat hair is more valuable than the hair here

under consideration (fol. 198), and it would seem

to be inequitable, if not unlawful, to impose duty

on the latter while admitting the former free.

It is not to be presumed that Congress intended

to levy such an exorbitant duty upon commercially

worthless material.

(E)

With due deference, it is submitted that the Cir-

cuit Court erred in holding that there was suffi-

cient evidence before the Board to support the con-

clusion reached, and that such conclusion is also

supported by the definitions in the encyclopedias

and dictionaries,

The only iota of testimony in this entire record

of eighty-two printed pages, which could in any

way be construed as tending to support the Gov-

ernment’s claim that the substance on these skins

16

is wool, is furnished by Government Examiner

Kitching, pages 45 to 47, but even he tacitly ad-

mitted that the growth was not wool, when he

testified both at folios 137 to 138 and at folio 141,

that it was not commercially suitable for carding,

but that ‘“‘they can mix it with wool and card it.”’

And he swore further on direct-examination (fol.

137) that the substance was more in the nature of

hair than wool, and that if it were on a goat, he

would pass it free as hair (fol. 136).

But even taking the testimony of Mr. Kitching

in a light most favorable to the Government, and

assuming forthe purposes of this argument that

it was as a wdole to the effect that the growth on

Exhibit I was more in the nature of wool than in

the nature of hair, it is still to be taken into con-

sideration that we have as opposed. to that, the

uncontroverted and uncontradicted evidence of

eight other witnesses, including Mr. E. 8. Park-

hurst and Mr. George B. Ritchie, that the growth

on Exhibit I is not wool, but ‘‘mocha hair,’’ and

that it would not constitute a good delivery under

an order even for low grade wool.

Further, it may be noted that several additional

witnesses, who did not testify before the Board of

General Appraisers, were called on behalf of the

importers for the Referee in the Circuit Court,

and their evidence tended to show the manifest er-

ror of the Board’s conclusion; we, therefore, re-

spectfully urge that upon the entire record as it

now stands, the only logical conclusion which can

be arrived at is that the Collector erred in not

classifying this merchandise under Paragraph 664

or 571 of the free list rather than under Paragraph

358 of the dutiable list.

Independent of commercial usuage, and of the

fact that in trade, *‘mocha hair’ has always been

a

7

deemed a separate and distinct commodity from

wool of lower value, and used for entirely different

purposes, and considered simply from the stand-

point of common knowledge, it is evident from

mere inspection, that the substance on Exhibit I,

which is the subject of this appeal, is not wool.

In the Encyclopedia Brittanica (9th Ed., Vol.

24, p. 653), under the title of ‘‘Wool and Woolen

Manufactures’’ it is said:

‘‘Wool is a modified form of hair, distin-

‘guished by its slender, soft and wavy orcurly

‘structure, and by the highly imbricated or

‘serrated surface of its filaments.”’

Andin the Century Dictionary, the following

appears, in a sub-heading, under ‘‘wool’’;

‘Its (wool’s) special distinction from hair,

‘depends in part upon the sinks in the shaft

‘or fiber, but mainly upon the scales with

‘with which the surface is imbricated.”

We respectfully submit that it may be fairly

stated that none of the above named characteris-

tics of wool are present or observable in the mate-

rial here in question. The substance on Exhibit

1 (which, after being removed, from the skins, is

used for stuffing purposes, for horse collars, etc.),

plainly has nothing about it of a slender, soft and

wavy nature; it has no kinky or curly structure,

and the surface of its filaments is not highly im-

bricated or serrated.

We, therefore, conclude that according to the

usual and common understanding of the terms, as

well as under trade usage, this substance is hair,

rather than wool, and that it should not be classi-

fied for duty under Paragraph 358 of the Tariff

Act of 1897, which provides for wools of the third

class, and camels’ hair of the third class.

18

The cases of Lyon vs. Marine, 55

Fed. Rep., 964,and T. D., 21,737, G. A.

4,593 are distinguishable from the

case at bar, involving different is-

sues.

The issue in the case of Lyon os. Marine, 65

Fed. Rep., 964, cited by the Board of General Ap-

praisers as authority for overruling these protests,

was quite different from that involved in the case

at bar.

In the Lyon case the question was whether cer-

tain fleeces of North China unimproved sheep,

composed of both wool and hair and valued at nine

cents a pound should beassessed for duty at eleven

cents per pound (a rate equivalent to 133% ad valo-

rem), under the provision of Paragraph 377 of

the Tariff Act of 1890, covering:

‘hair of the camel, goat, alpaca, and other

‘like animals,”’

or should be assessed for duty ay 32 per cent. ad

valorem under Paragraph 378 of that Act, as

‘‘wools of Class Three,’’ the Court saying:

“In the third class are placed the coarse

‘fleeces of the unimproved sheep of certain

‘South American States, Smyrna and Russian

‘‘camel’s hair, and such coarse wools as have

‘been usually imported from Turkey, Greece,

“Egypt, Syria, and elsewhere excepting im-

‘proved wools”’ (p. 965).

The Court upheld the importer’s contention

that a sheep, in respect to its fleece, was not a

‘like animal’’ te a goat, and decided that Para-

graph 378, rather than Paragraph 377, should

govern.

From the decision in the Lyon case it may be

observed, however, that no question was raised or

claim made, as in the case at bar, that there was no

wool in fact, or according to commercial under

standing about the fleeces in controversy, and

that the merchandise was entitled to free entry as

‘skins’ or “‘hair.’’

According to the undisputed evidence, the ques-

tion involved in G, A, 4593 was as to the proper

classification of Jeddah sheepskins (represented by

Illustrative Exhibit A), which come from a moun-

tuinous districtof Arebia, and on which the growth

of hair is much longer than on the mocha white-

head sheepskins in controversy (represented by

Exhibit I), which come from Hodeida. This

difference was clearly pointed out by the evidence,

taken before the Referee in this case (fols. 178 to

183). Mr. Ritchie testified that both the growths

on Exhibit 1 and Illustrative Exhibit A would be

commercially known as hair, but that the growth

on Exhibit A was ‘‘considerably better stuff,’’

and would probably bring about ten to ten and a

half cents a pound (fol. 202), while the growth on

Exhibit I, although valneless in its imported con-

dition, would, after it had been removed from the

skin and washed and cleaned, be valued at four

and a half to five cents a pound (fol. 196).

Mr. Weiler testified, and his testimony is un-

controverted, that the growth on the Jeddah sheep

is longer and might be used for the purposes for

which wool is used; while the growth on a Hodeida

sheep is short and cannot be used for any purpose

where wool is used, and that he would never

think of protesting on Jeddah sheepskins (fols.

181-182).

20

The fact that for many years prior

to 1899 it had been the uniform prac-

tice of the Customs officials to admit

merchandise like this in contro-

versy free of duty, should have an

important bearing upon the ques-

tions here involved.

From a published decision of the Treasury De-

partment, rendered June 30, 1879, known as T.

DD. 4069, it appears that the Assistant Secretary

of the Treasury then sanctioned the classification

of so-called hair sheepskins (consisting of the

pelts of sheep recently sheared), under the pro.

vision of the free list of the Tariff Act of June 6,

1872, enumerating,

“Hides, raw or unenred, whether dry,

“salted, or pickled, and skins except sheep.

“skins with the wool on,’’

basing his decision on the ground that the growth

of wool or hair on the skins was of insufficient

value to warrant its classification as wool.

Whether or not the practice of the Custom of-

ficials of returning mocha hair sheepskins free as

rawskins began as early as 1879, we do not know,

as we find no early decisions abont the classifica-

tion of mocha hair sheepskins; but T. D. 4009

seems to indicate that they may have been per-

mitted free en‘;v as early as 1879.

There is, indeed, positive evidence in this case,

furnished by the testimony of Mr. Kitching, Gov.

ernment examiner, that skins like Exhibit I were

formerly returned by him free, the hair as well as

Sfoed pore orem -

21

the skin; that that was trne when he first came,

fifteen years prior to 1904—that is about 1889;

but he conld not say upto just what time that

practice prevailed (fols. 134 to 135).

This is supplemented by the testimony of Mr.

Helmrath to the effect that for many years prior

to 1899 no duty was charged on merchandise like

that in controversy, and that the Government

practice in this respect changed in or about the

year 1899, the evidence on this point being as fol-

lows:

“Q. Is it or is it not true that for many

‘‘vears prior to 1899 no duty was levied on

‘hair of whitehead sheepskins like Exhibit I?

“A. That is the fact.

**Q. So the Government practice has changed

in or about 1899?

‘A. Yes, sir’ (fol. 74).

See also folio 49, to the effect that the Goat &

Sheepskin Import Company imported these skins

for 15 years prior to March 3, 1903, and that they

had never been assessed for duty as wool until

the arrival of the lot per Manitou, November 18,

1899

It, therefore, may be fairly assumed that under

the latter years of the Tariff Act of 1883, and dur-

ing all the time that the McKinley Act of October

1, 1890, and the time that the Wilson Tariff Law

of August 28, 1894, and during the first three

years that the Dingley Actof July 24, 1897, was

operative, mocha whitehead hair sheepskins were

allowed free entry.

During all that period of time from 1889 up to

1800 (save under the Tariff Act of 1894 when wool

was on the free list), there had been continuously

in force under the various Tariff Acts of 1883,

1890 and 1807, a specific provision for “*wools of

a9

the third class,” corresponding to the provision

under which duty was levied in the case at bar;

and yet during all that time mocha whitehead

sheepskins were classified free of duty as “skins,

not otherwise provided for,’ and the growth on

such skins was never assessed as **wool.’’

W here the language of the Tariff Acts has been

substantially the same in respect to certain goods,

the construction uniformly applied by the Treas-

ury Department for many years will not be dis-

regarded, except for very cogent reasons.

Merritt vs. Cameron, 137 U. 8., 542, 552.

Robertson vs. Downing, 127 U.8., 607,

613.

Wheref re, your petitioner prays that a writ of

certiorari may be issued out of and under the seal

of this Court, directed to the United States Cir-

cuit Court of Appeals, for the Second Circuit, com-

manding the said Court to certify and send to this

Court, on a day certain to be therein designated,

a fulland complete transcript of the record and

all proceedings of the said Circuit Court of Ap-

peals in the said case therein, entitled The Goat

& Sheepskin Import Company, appellant, against

The United States, appellee, to the end that the

said case may be reviewed and determined by this

Court as provided in Section 6 of the Act of Con-

gress, entitled ‘‘An Act to Establish Cireuit Courts

of Appeals and to define and regulate in certain

cases the jurisdiction of the Courts of the United

States, and for other purposes,’’ approved March

3d, 1891, and that your petitioner may have such

other or further relief or remedy in the premises

as to this Court may seem just and in conformity

with the said Act, and that the said judgment of

the said Circuit Court of Appeals in the said case,

23

and every part thereof, may be reversed by this

Honorable Court.

And your petitioner will ever pray.

Dated April 9th, 1906.

EDWARD 8. HATCH,

J. STUART TOMPKINS,

Counsel for Petitioner.

Southern District of New York, } ame

State and County of New York, ) ~"*

J. Stuart Tompkins, being duly sworn, saysthat

he is connsel for the petitioner above named; that

he prepared the foregoing petition, and that the

allegations thereof are true as he verily believes.

J. STUART TOMPKINS.

Subscribed and sworn to before

me, thisMth day of April, 1906,

Henry J. Rodes,

(NoTARIAL SEAL.) Notary Public,

Kings County,

Jertificate filed in New York County.

To

William H. Moody, Esq.,

Attorney General of the United States,

Washington, D. C.

Please take notice that on the 23d day of April,

1906, on the opening of the Court, or as soon

thereafter as the matter can be heard, we shall

move the Supreme Court of the United States, at

the court room thereof, in the City of Washing-

ton, D. C., that the foregoing petition for a writ

of certiorari be granted.

Dated New York, April 9th, 1906.

EDWARD 8. HATCH,

J. STUART TOMPKINS,

Counsel for Petitioner.

Service of above notice and receipt of a copy

thereof, together with copy of the petition, ar

hereby admitted at Washington, D. C., this /2 ~

day of April, 1906.

[9318]

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