
    DOWNING et al. v. UNITED STATES.
    (Circuit Court of Appeals, Second Circuit.
    May 28, 1901.)
    No. 67.
    Customs Duties — 'Yarns—Ascertaining Weight.
    Customs Duties Act 1807, par. 362, provides for cotton yarn, not dyed, or advanced beyond the condition of singles, a duty of throe cents per pound on all numbers up to 15, ono-Ufth of a cent per number per pound on all numbers between 15 and 30, and one-fourth of a cent per number per pound on higher numbers; for yam dyed or advanced beyond the condition of singles, six cents per pound on all numbers up to 20, one-fourth of a cent per number per pound on numbers between 20 and 80, and three-tenths of a cent per number per pound on higher numbers. Treasury Department Hule Sept. 8, 1897, for ascertaining the number of cotton yarns, says multiply the number of yards by the number of strands, multiply the product by 8</£¡, and divide the resulting product by the weight of the yarn in grains. Held, in case of cotton yams dyed, glazed, and finished, hut not advanced beyond singles, that, though dyeing and glazing increases the weight and decreases the number of the yarn, and the weight used by tlie formula is that of, and by it the number is ascertained according- to, the original conditions, whgn the number is so ascertained, the dutiable weight is ascertained by actual weighing-.
    Appeal from the Circuit Court of the United States for the Southern District of New York.
    Albert Comstock, for appellants.-
    Chas. D. Baker, for the United States.
    Before SHIPMAN, Circuit Judge, and WHEELER and COXE, District Judges.
   WHEELER, District Judge.

This is a review of a decision of the circuit court affirming that of the board of general appraisers affirming that of the collector in assessing a duty upon the actual weight of an importation of cotton yarns dyed, glazed, and finished, but not advanced beyond the condition of singles, under the act of 1897, which provides:

“302. Colton thread and carded yarn, warps or warp yarn, in singles, whether on beams or in bundles, skeins or cops, or in any other form, except spool thread of cotton hereinafter provided for, not colored, bleached, dyed, or advanced beyond the condition of singles by grouping or twisting two or more single yarns together, three cents per pound on all numbers up to and including number fifteen, one-fifth of a cent per number per pound on all numbers exceeding number fifteen and up to and including- number thirty, and one-fourtli of a cent per number per pound on all numbers exceeding number thirty; colored, bleached, dyed, combed or advanced beyond the condition of singles by grouping or twisting two or more single yarns together, whether on beams or in bundles, skeins or cops, or in any other form, except spool thread of cotton hereinafter provided for, six cents per pound on all numbers up to and including number twenty, and on all numbers exceeding number twenty and up to number eighty, one-fourth of one cent per number per pound; on number eighty and above, three-tenths of one cent per number per pound; cotton card laps, roping, sliver or roving, forty-five per centum ad valorem.”

The treasury department, September 8, 1897, informed collectors that: •

“The following rule for the ascertainment of the number or lea of flax, hemp, ramie, and cotton yarns, or threads is promulgated for the information and guidance of customs officers: For flax, hemp, ramie and jute, take a certain number of yards, multiply the number of yards by the number of cords or strands; multiply the product by 23%, and divide the resulting product by the weight of the yam or thread ingrains to give the number or lea. For cotton substitute 8% for 23%.”

—Which was and is according to commercial usage. The numbers are like those of a wire gauge, and increase as the size of the cords, strands, or the threads lessens. The dyeing and glazing increased the weight, but decreased the numbers. The weight used by the formula is that of, and by it the number is ascertained according to, the original conditions. The importer contends that the weight so ascertained should be the dutiable weight, as well as the number so ascertained the dutiable number; and he invokes commercial usage in aid of this contention. The mode of ascertaining the number necessarily depends upon commercial use and designation. The statute refers to the number as a designation of measure already known by the usage, and it cannot be ascertained but by going to the usage, of which the formula is an embodiment. Not so the weight, which can be so ascertained as to carry out the words of the statute by weighing. The usage is requisite for the proper classification of the goods, but not necessary or appropriate for ascertaining their quantity. The duty is laid definitely per pound, according to the number, upon these yarns, as dyed, glazed, and finished.. If the original condition was to be resorted-to as well for weight as for classification, the duty would remain the same upon the advanced goods as upon the raw, and the provisions for differences would be meaningless, instead of effective according to their terms. The mode of ascertaining the number is complicated by the necessary resort to usage; but, when the number is ascertained, the laying of the duty by the weight is clear and unambiguous, and nothing was to be done concérning that but to ascertain the actual weight at the time of the importation. Earnshaw v. Cadwalader, 145 U. S. 247, 12 Sup. Ct. 851, 36 L. Ed. 693. Judgment affirmed.  