Francklyn v. United States

U.S. Circuit Court for the District of Southern New York

Francklyn v. United States

119 F. 470, 1902 U.S. App. LEXIS 5290

CourtU.S. Circuit Court for the District of Southern New York

DecidedNovember 12, 1902

DocketNo. 3,202

StatusPublished

Cited by2 cases

This text of 119 F. 470 (Francklyn v. United States) is published on Counsel Stack Legal Research, covering U.S. Circuit Court for the District of Southern New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Francklyn v. United States, 119 F. 470, 1902 U.S. App. LEXIS 5290 (circtsdny 1902).

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Opinion

TOWNSEND, Circuit Judge.

The merchandise in question is a crude mineral product, which was assessed for duty at 30 per cent, ad valorem, under the provisions of paragraph 58, Tariff Act July 24, 1897 [U. S. Comp. St. 1901, p. 1630], as a "“color,” and was claimed to be dutiable at 40 cents per ton, as “iron ore,” under paragraph 121 of said act [U. S. Comp. St. 1901, p. 1636]. The paragraphs bearing on this question are the following:

“Par. 58 [U. S. Comp. St. 1901, p. 1630]. All paints, colors, pigments, lakes, crayons, smalts and frostings, whether crude or dry or mixed, or ground with water or oil 'or with solutions other than oil, not otherwise specially provided for in this act, thirty per centum ad valorem; all paints, colors and pigments, commonly known as artists’ paints or colors, whether in tubes, pans, cakes or other forms, thirty per centum ad valorem.”

“Par. 121 [U. S. Comp. St. 1901, p. 1636]. Iron ore, including manganiferous iron ore, and the dross or residuum from burnt pyrites, forty cents per ton: provided, that in levying and collecting the duty on iron ore no deduction shall be made from the weight of the ore on account of moisture which inay be chemically or physically combined therewith; basic slag, ground or unground, one dollar per ton.”

The merchandise is in fact crude hematite ore, or iron ore. In its present state it cannot be used as a pigment or color, and, even if it be assumed that it is in fact a color or pigment, then it is a color specially provided for as iron ore in paragraph 121. Congress having seen fit to levy a duty of 40 cents per ton on iron ore without qualification as to its use, and without the limitation “not specially provided for,” such designation must stand. In the Vandegrift Case (C. C.) 107 Fed. 265, where a similar article was considered, the issue was not the same as that raised by this protest. Upon an issue practically identical with that raised herein, the board, in G. A. 1,312, held, in construing a similar provision of the act of 1890, that a like article was an iron ore, and not a color.

The decision of the board of general appraisers is reversed.

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TOWNSEND, Circuit Judge.

The merchandise in question is a crude mineral product, which was assessed for duty at 30 per cent, ad valorem, under the provisions of paragraph 58, Tariff Act July 24, 1897 [U. S. Comp. St. 1901, p. 1630], as a "“color,” and was claimed to be dutiable at 40 cents per ton, as “iron ore,” under paragraph 121 of said act [U. S. Comp. St. 1901, p. 1636]. The paragraphs bearing on this question are the following:

“Par. 58 [U. S. Comp. St. 1901, p. 1630]. All paints, colors, pigments, lakes, crayons, smalts and frostings, whether crude or dry or mixed, or ground with water or oil 'or with solutions other than oil, not otherwise specially provided for in this act, thirty per centum ad valorem; all paints, colors and pigments, commonly known as artists’ paints or colors, whether in tubes, pans, cakes or other forms, thirty per centum ad valorem.”

“Par. 121 [U. S. Comp. St. 1901, p. 1636]. Iron ore, including manganiferous iron ore, and the dross or residuum from burnt pyrites, forty cents per ton: provided, that in levying and collecting the duty on iron ore no deduction shall be made from the weight of the ore on account of moisture which inay be chemically or physically combined therewith; basic slag, ground or unground, one dollar per ton.”

The merchandise is in fact crude hematite ore, or iron ore. In its present state it cannot be used as a pigment or color, and, even if it be assumed that it is in fact a color or pigment, then it is a color specially provided for as iron ore in paragraph 121. Congress having seen fit to levy a duty of 40 cents per ton on iron ore without qualification as to its use, and without the limitation “not specially provided for,” such designation must stand. In the Vandegrift Case (C. C.) 107 Fed. 265, where a similar article was considered, the issue was not the same as that raised by this protest. Upon an issue practically identical with that raised herein, the board, in G. A. 1,312, held, in construing a similar provision of the act of 1890, that a like article was an iron ore, and not a color.

The decision of the board of general appraisers is reversed.

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119 F. 470, 1902 U.S. App. LEXIS 5290, Counsel Stack Legal Research, https://law.counselstack.com/opinion/francklyn-v-united-states-circtsdny-1902.

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