United States v. P. E. Anderson & Co. , 175 F. 961 ( 1909 )

NOYES, Circuit Judge

(after stating the facts as above). The former decision of the Circuit Court holding that this article was a manufacture of chalk was rendered in 1903. No appeal was taken from the decision, and it was followed by the Treasury Department until the present importation.' The importers are right in their contention that consideration should he given to this circumstance. Long-continued practice carries weight, and might be decisive in a doubtful case. But, notwithstanding the decision of the Circuit Court and the acquiescence therein, we cannot regard this as a doubtful case.

■ In the first place, it seems entirely clear that, whatever this merchandise may be, it is not a manufacture of chalk. It is not made from chalk. It is chalk. The process which it had gone through is only the process necessary to turn a chalky solution into chalk. It could no more be called a manufacture of chalk than could salt obtained from the evaporation of the ordinary saline solution be called a manitfacture of salt.

If, then, the merchandise is not a manufacture of chalk, it is undoubtedly dutiable as an unenumerated manufactured or unmanufactured article, unless it comes within the provision of the chalk paragraph already referred to, which applies specifically to chalk precipitated artificially. And this article' is chalk precipitated artificially. There would be no question about the application of the provision, were it not for the exception in it. The' exception is of chalk “not medicinal nor prepared for toilet purposes.” It is not claimed that this article is medicinal, so that the inquiry is whether it has been prepared for toilet purposes.

Now, after a careful examination of the evidence, we find nothing to warrant a finding that this merchandise has been prepared for toilet purposes. The preparation which it has gone through has been only such as has been necessary to prepare precipitated chalk for the market to be used for any purpose. We cannot think that bolting and packing precipitated chalk in bags prepares it for toilet purposes within the meaning of the statute. While the preparation referred to is not, perhaps, such as is necessary to make a completed toilet article, we think the bagged and bolted precipitated chalk must in some degree be advanced toward use for toilet purposes, by the admixture of flavoring or other ingredients or otherwise, before it comes within the exception of the act.

The decision of the Circuit Court is reversed.