
    United States v. Kerby
    (No. 2970)
    
    United States Court of Customs Appeals,
    December 5, 1927
    
      Charles D. Lawrence, Assistant Attorney General (Thomas J. Canty, special attorney, of counsel), for the United States.
    
      James W. Bevans for appellee.
    
      [Oral argument October 14, 1927, by Mr. Lawrence and Mr. Bevans]
    Before Graham, Presiding Judge, and Smith, Barber, and Hatfield, Associate Judges
    
      
       T. D. 42491.
    
   Graham, Presiding Judge,

delivered the opinion of the court:

The appellee imported four cases of books which were classified by the collector as books not of bona fide foreign authorship at 25 per centum ad valorem under paragraph 1310 of the Tariff Act of 1922. The importer protested, claiming the books to bé free of duty under paragraph 1529 of said act as books printed wholly or chiefly in languages other than English. The court below sustained the protest, doing so on the theory that the chief worth or value to the reader of the books in question was the foreign language component thereof, as announced in the special concurring opinion of Smith, J., in United States v. Petry Co., 11 Ct. Cust. Appls. 240, T. D. 39019. From this judgment the Government has appealed.

On the hearing before the court below two witnesses were called and testified, one in support of the contention of the importer and one in support of the Government. In addition, a sample of the books in question was introduced and is now before us. It is a large volume, about 11 by 13 inches, elaborately bound in silk-covered boards. Upon its front cover is inscribed “An Old Chinese Garden. Kate Kerby,” with a line of Chinese characters. The title-page describing the contents of the volume is entirely in English, as is the dedication. Then follows a table of contents in Eng-sh, a letter of appreciation, in English, and two pages of introduction, in English. Then follow two title-pages, each in English and Chinese. Following these are a number of poems, thus arranged: First, the name of the poem, in English; then an English translation of the poem; then a picture accompanying the poem; then the poem, in Chinese. The volume concludes with a number of inscriptions, each prepared and printed, with the exception of the pictures, in the same way as the preceding poems. The testimony of the witnesses does not alter or affect what an inspection of the volume shows.

There is no apparent distinction between the facts as disclosed by the case at bar and those involved in United States v. Petry, supra. Nor is any other legal deduction to be drawn therefrom. Therefore, on authority of the case cited and upon the further authority of United States v. Nelson & Co., 15 Ct. Cust. Appls. 268, T. D. 42465, and United States v. Furuya, 15 Ct. Cust. Appls. 331, T. D. 42492, the judgment of the court below is reversed and the cause remanded with directions to overrule the protest.

Reversed and remanded.

Smith, J., concurs in the conclusion.  