
    UNITED STATES v. BROWNELL.
    (Circuit Court, S. D. New York.
    November 23, 1907.)
    No. 4,586.
    Customs Duties — Classifi o atio n — C ase i n — “L a ota bene. ”
    Casein is “lactarene,” as enumerated in Tariff Act July 24, 1897. c. 11, § 2, Free List, par. 594, 30 Stat. 199 [U. S. Comp. St. 1901, p. 1684].
    On Application for Review of a Decision by the Board of United States General Appraisers.
    For decision below, see G. A. 6,453 (T. D. 27,645), in which the Board of General Appraisers sustained the protest of W. M. Brownell against the assessment of duty by the collector of customs at the port of New York.
    D. Frank Eloyd, Asst. U. S. Atty.
    Comstock & Washburn (Albert IT. Washburn and J. Stuart Tompkins, of counsel), for importers.
   PLATT, District Judge.

The merchandise in suit is invoiced as casein, and was treated by the collector as a nonenumerated manufactured article at 20 per cent, ad valorem. The importer protested, claiming that it is either albumen, lactarene, or glue stock, which are on the free list of Act July 24, 1897, c. 11, § 3, 30 Stat. 194 [U. S. Comp. St. 1901, p. 1684].

The Board reversed the action of the collector, on the ground that it is the identical article which the court ruled to be free as albumen in Merchant’s Despatch Transp. Co. v. United States (C. C.) 121 Fed. 443, and which later the court ruled to be free as lactarene, in B. P. Ducas Co. v. United States (C. C.) 143 Fed. 362, and that upon the larger record before them they found nothing which “differentiates the commodity” or would lead the court to change its ruling. Left to themselves, I am inclined to think that the Board would have sustained the collector, but they were constrained by the situation to send it to the free list.

The real contention before them was as to whether or not it is the lactarene of paragraph 594. It seems too clear for discussion that it is neither albumen nor glue stock, and that it is a manufactured article. A Scotchman named Pattison invented the term “lacterine” in connection with the English patent of 1848, which explained how to produce an improved material for fixing paint or pigment colors on woven fabrics. He used acids on buttermilk, and said the same treatment could be applied to skimmed milk. His patented article found some favor and gradually invaded the commerce of this country, talcing naturally the name which he gave it. I am satisfied that it was this product which Congress dealt with in paragraph 594.

Is the merchandise in suit that thing or else ? The entee said that his acid treatment could be applied to any kind of milk, including skimmed. It is true that under conditions existing at the time of the patent, and long thereafter, it was impossible to produce any lactarene which would not contain a considerable percentage of butter fat, and, as the fat soon became rancid, its presence in the material rendered it unfit for the uses for which it was intended, until our trade got into such a condition, that in the late ’80s and early ’90s the article had been practically eliminated, and the name almost forgotten by the calico printers. Nevertheless, the Congress used the name in 1897. It is the duty of the court to discover, if it can, what the Legislature meant by such action. It will not do to say that it was an oversight, if a reasonable account can be had of it.

Here is the way it strikes me: The mechanical separator began to get in its work of making the skim less fatty as far back as 1890. By 1897, the skim had become so very free from fat, that lactarene made in pursuance of the patented process would be practically freed of the substance which had hindered its usefulness. These facts must have been known to the legislators. The name was being used to some extent in our trade. The prior act had used the word, and it was used again. The same policy which had made the lactarene free in the prior acts would have made this improved article free in 1897. It will do what the patented material proposed to do and many things beside. In other words, the patented material could, in 1897, be produced under the disclosures of the patent in a much improved form. I think the merchandise in suit was so produced, and is the very thing which was made free by paragraph 594.

Thus force is given to the law, the court decisions, although based on different grounds, produce the same result, and the doings at the custom house will proceed smoothly. I am sorry for the farmer, and would help him, if my conscience did not stand in the way, but it does so stand, and I am as helpless as the farmer. I shall lose no sleep if help comes to him from above, but I cannot for the life of me see how any court can reach any different conclusion, ft so happened that my eye fell, the other day, upon the word “lacterene” in the Encyclopedia Americana, Edition of 1904, which, under the auspices of the Scientific American, claims to be of special service to this country. I found it thus defined: “The casein of milk as commercially prepared by being freed from fat, precipitated by an acid, thoroughly purified, dried and powdered.” (The underscoring is mine.)

The decision of the Board is affirmed.  