United States v. American Express Co.

158 F. 808, 1908 U.S. App. LEXIS 3992

• Court: Court of Appeals for the Second Circuit
• Decided: February 11, 1908
• Docket: No. 124 (1,800)
• Status: Published

Opinion

PER CURIAM.

Judgment affirmed.

NOTE. — The following is the opinion of Hazel, District Judge, in the Circuit Court:

HAZEL, District Judge.

The questions submitted arise upon a protest filed with the collector by the importer, who claims that the articles in question are rose cuttings and dutiable at 25 per cent, ad valorem under Tariff Act July 24, 1897, c. 11, § 1, Schedule G, par. 252, 30 Stat. 170 [U. S. Comp. St. 1901, p. 1650]. The importation was returned by the appraiser as rose plants, and assessed for duty at 2% cents each.

I have read the testimony, together with the opinion of the Board and the former decision of the Board in G. A. 5,645 (T. D. 25,211), and I think the Board correctly decided upon the evidence presented that the importation consists either of cuttings of shrubs or “cuttings of * * * plants * * * commonly known as nursery or greenhouse stock,” and as such is dutiable at 25 per cent, ad valorem. It appears by the evidence of Mr. Carey, witness for the protestant, that the cuttings in question are put in sand in preparation for shipment, but that they have never in fact been in soil. The provisions of paragraph 252 are not absolutely clear, but the omission of Congress to specifically mention cuttings or plants of the hybrid rose persuasively indicates, I think, that a broad interpretation of said paragraph was intended. I concur in the conclusions and reasoning of the Board, whose decision is hereby sustained.