
    UNITED STATES v. BOND.
    (Circuit Court, S. D. Texas.
    February 4, 1908.)
    No. 2,017 (1,714).
    1. Customs Duties — Confusion of Goods — Mixtuke of Coat and Stack.
    An importation consisted of a mixture of bituminous coal and slack, in the proportion of about ¡.wo to one. Held, that the two classes of merchandise should be subjected to the rates of duty respectively provided therefor in the tariff, on the basis of this proportion, regardless of their intermingled condition; that, as such proportion could be fixed by the use of scale and screen on a single tub, the law would not cast on the importer the burden of the useless separation of the two kinds of coal.
    2. Same — Evidence—Sufficiency of Test.
    The proportion of slack in an importation of 175.tons of coal was sufficiently determined by testing a sample weighing 113 pounds.
    On Application for Review of a Decision by the Board of United States General Appraisers.
    Lock. McDaniel, U. S. Atty.
    Harris & Harris (Edward F. Harris, of counsel), for importer.
   BURNS, District Judge.

This case arises upon petition to review the action of the Board of General Appraisers in sustaining the protest of the importer against the assessment of duty upon certain bituminous coal, imported through the port of Galveston on the 6th day of September, 1904.

Entry was duly made of 175 tons, described as “surplus bunkers” and invoiced as bituminous coal; duty thereon was assessed under paragraph 415 of the tariff act of July 24,1897, c. 11, § 1, Schedule N, 30 Stat 190 (U. S. Comp. St. 1901, p. 1674), at 67 cents per ton; and the entry was liquidated in accordance therewith. This action upon the part of the collector of customs was but the exercise of sound discretion; and he was, in the light of the Treasury Decisions, without the alternative to give the matter other direction. The importer contends that 35 per cent, of said coal is found to be “slack or culm,” and under said paragraph 415 subject to duty at 15 cents per ton. The acting appraiser makes the following return:

“I took a fair representative sample of 113 pounds, used a half-inch screen, and with following result:
I’er cent.
Slack, 40% pounds............................................... 0.35841
Lump, 72% pounds............................................... 0.6415!)"

Petitioner contends that a fair interpretation of the tariff clause relating to the duty upon bituminous coal has no application to slack or culm, where the latter is a part of and not segregated from the general cargo; that, to make the rate of 15 cents per ton available to the importer, the slack or culm must be an individual importation in the sense that it must be distinct, separate, and not confused and intermingled with bituminous coal carrying a higher rate of assessment: and that, not being so separated and segregated, the higher rate should attach. The contrary view is announced by the Board of General Appraisers. It is found as a fact that of the coal in question 35 per cent, thereof is what is commonly known as “slack”; and upon the test, made, so far as this record speaks, in a fair and proper way, there appears to be no difficulty upon the part of those charged with the assessment and collection of the duty in ascertaining the proportion which the slack bears to the lump, the part to the whole.

Hence it follows that, if a correct result can be had by the use of scale and screen, the object and purpose of the law has been attained— the quantity of each grade or class ascertained. And, this being so, the law will neither require nor invite the importer to perform an act of separation, useless in result and burdensome in cost, when, as in this case, it appears that the quantity of coal and slack can be estimated and fixed by the weighing of a single tub.

The action of the board should be in all things affirmed, with directions to the collector to reliquidate the entry in accordance with the views here announced; and the decree will so provide.  