
    UNITED STATES v. NORDLINGER. SAME v. McELROY.
    (Circuit Court, S. D. New York.
    November 10, 1902.)
    Nos. 2,875, 2,926.
    1. Customs Dutves—Canary Seed.
    Canary seed is not free from duty, under paragraph 656 of the tariff act of 1897 [U. S. Comp. St. 1901, p. 1687], as “grass seeds,” not specially provided for, but is dutiable at 30 per cent, ad valorem, under paragraph 254 [U. S. Comp. St. 1901, p. 1650], as “seeds, not specially provided for.”
    Appeals by the United States from a Decision of the Board of United States General Appraisers.
    Henry C. Platt, Asst. U. S. Atty.
    A. E. Nordlinger, for importers.
   TOWNSEND, Circuit Judge.

The merchandise in question is canary seed, returned by the collector for assessment of duty at 30 per cent, ad valorem, as “seeds, not specially provided for,” under paragraph 254 of the act of 1897 [U. S. Comp. St. 1901, p. 1650]. The importers protested, and the board of general appraisers sustained the protest, and held that canary seed was a grass seed, and free of duty, under the provisions of paragraph 656 of said act [U. S. Comp. St. 1901, p. 1687], for “grass seeds,” not specially provided for'. No testimony was introduced before the board of appraisers, but considerable has been taken in this court by both parties. Canary seed has always been admitted free of duty. In the prior acts of 1890 (paragraph 699) and 1894 (paragraph 611) it was specifically exempted from duty. Paragraph 656 of the act of 1897 [U. S. Comp. St. 1901, p. 1687], is practically identical with the corresponding paragraph in the act of 1894, except that from the present act the word “canary” is omitted. It is admitted that canary seed is botanically a grass seed .in the same sense as wheat, oats, and other cereals. Three witnesses for the importer—two of them parties to the suit, and the third one interested as an importer—testified somewhat evasively and with uncertainty that the merchandise is included under the heading of grass seed in the sense that, if a customer called for grass seed, he (the witness) would ask whether he wished canary seed, timothy seed, clover seed, or millet seed. Five witnesses for the government, apparently disinterested, testified that canary seed has never been known in the trade and commerce of this country as a grass seed, but only as a bird seed. This commercial understanding appears to accord with the popular understanding of the seed as bird or canary seed, and riot grass seed. In these circumstances it must be assumed that congress, by the exclusion of the word “canary” from said paragraph, intended that canary seed should be classified for duty.

The decision of the board of appraisers is reversed.  