
    HAHN v. UNITED STATES.
    (Circuit Court, S. D. New York.
    February 7, 1903.)
    No. 3,276.
    1, Customs Duties — Nonenumerated Articles — Dutiable by Similitude.
    Articles, such as paper cutters, paper weights, knife handles, and pen or pencil holders or handles, made wholly or chiefly of agate or onyx, are dutiable by similitude to “precious stones cut, but not set,” under Act Oct. 1, 1890, §' 5 (26 Stat. 613; Rev. St. § 2499), laying on “every nonenumerated article which bears a similitude * * * to any article enumerated” “the same rate of duty which is levied and charged on the enumerated article which it most resembles,” etc.
    Albert H. Comstock, for appellant.
    Charles D. Baker, Asst. U. S. Atty.
   WHEELER, District Judge.

The question here is whether “various articles, such as paper cutters, paper weights, knife handles, and pen or pencil holders or handles made wholly or chiefly of agate or onyx,” are dutiable by similitude to “precious stones, cut, but not set,” under Act Oct. i, 1890, par. 454 (26 Stat. 601), as they were finally held to be by similitude to “precious stones of all kinds,” under Act 1883 (22 Stat. 488), in Hahn v. U. S., 40 C. C. A. 622, 100 Fed. 635, between these same parties. These similitude provisions, respectively, lay on “every nonenumerated article which bears a similitude, either in material, quality, texture, or the use to which it may be applied to any article enumerated,” “the same rate of duty which is levied and charged on the enumerated article which it most resembles in any of the particulars before mentioned.” Rev. St. § 2499; Act Oct. 1, 1890, § 5 (26 Stat. 613).

Agate and onyx are precious stones that may be and are cut not for setting, cut for setting, and cut for setting but not set, and cut and set. In either case the material is that of the precious stone, and resembles it in quality and texture. These articles are precious stones cut, but not cut for setting; and are of the same material, quality, and texture which are not altered by cutting, as if they were cut for setting, or were set. In these three particulars they bear the same similitude to precious stones cut for setting that they do to precious stones that may be cut for setting, and are or are not so cut, or are not cut at all. As they are of precious stones that are cut and might be cut for setting, the resemblance between them and those that are cut, but not set, is in these respects very exact. Articles do not have to be at the same stage of manufacture, nor in the same state of preparation or existence, to be in the similitude of tariff laws. If they did, they would always or often be more than similar and the same, and be taken from the nonenumerated into the enumerated class. The difference between the clauses enumerating precious stones for duty in the Acts of 1883 and 1890 does not seem to distinguish this case from the former one, and the determination of that controls this.

Decision reversed.  