
    HILLS BROS. CO. v. UNITED STATES.
    (Circuit Court, S. D. New York.
    December 22, 1905.
    On Rehearing, January 6, 1906.)
    No. 3,870.
    Customs Duties—Measurement—Dutiable Weight of Onions—“Bushel.”
    Under Tariff Act July 24, 1897, c. 11, § 1, Schedule G, par. 249, 30 Stat. 190 [U. S. Comp. St. 1901, p. 1650], providing a specific rate of duty “per bushel” on onions, held, that duty was correctly based on the long • established practice of customs authorities to regard 57 pounds as a bushel, in default of evidence justifying a different basis of measurement.
    On Application for Review of a Decision of the Board of United States General Appraisers.
    For decision below, see G. A. 5,888 (T. D. 25,941), in which the Board of General Appraisers affirmed the assessment of duty by the collector of customs at the port of New York on merchandise imported under the tariff act of 1897.
    Curie, Smith & Maxwell (W. Wickham Smith, of counsel), for importers.
    Henry A. Wise, Asst. U. S. Atty.
   PLATT, District Judge.

This controversy is over Spanish onions, which are assessed under Act July 24, 1897, c. 11, § 1, Schedule G, par. 249, 30 Stat. 170 [U. S. Comp. St. 1901, p. 1650]: “Onions, 40 cents per bushel.”

It has long, been the practice of the customs authorities to consider that 57 pounds of onions constitute a bushel, and they were assessed on that basis. The importers object to this, and claim to have shown by their testimony before the board, which was repeated to some extent before the court, that, as a fact, the onions of the invoice weigh rather more than 60 pounds to the bushel, but are courteously willing to permit the assessment to proceed on the basis of an even 60 pounds to the bushel. The way they get at it is this: They take a standard Winchester bushel measure, and, after filling it with onions in such a way as they consider fair, weigh the contents, and argue that they thus establish an average weight for all the bushels of the invoice.

It is agreed that the bushel measure used is of exactly the right size, but the whole trouble arises over what shall be considered a fair way of filling the measure. And when it is considered, as found by actual test during the hearing of the court, that two onions taken at random from a single bushel weigh about a pound, it is easy to see how difficult it is to arrive at an exactly fair way of getting at what the exact weight-ought to be. There was so much uncertainty about the matter before the board, which still exists after the testimony in court, that it would seem that the board was quite right in holding that the duty was properly assessed upon the long established basis of 57 pounds to the bushel.

The decision of the board is affirmed.

On Rehearing.

This case was decided in December last and an opinion filed at the time. Reference was therein made to an object .lesson presented in court, which was said to be a reproduction of one made before the board. The sample onions then used are no longer available. At the request of counsel for the importers, I will therefore amplify my former opinion, with a detailed statement of what actually took place in court. A metal measure was used which held, when even full, a standard Winchester bushel. A sample of the imported merchandise, consisting of Spanish onions, some weighing a half pound each, and many perhaps a little less, were taken from a crate in which they had been kept. A keeper began to put them in the measure one by one, but, after so placing less than enough onions to cover the bottom of the measure, he tipped up the crate, at the suggestion of the assistant district attorney, and the onions poured in until the measure was so full that they began to roll off upon the floor of the court room. The measure then stood before us filled with the onions to an irregular height, not less at any point than several inches above its top.

I have stated the facts. Now let me add, on my own account, that it was evident that, as the measure should be filled from time to time with like onions, the excess height above its top could easily vary by accident to a considerable degree, and when with that likelihood is coupled the fact that a single onion of the sample lot weighed at least half a pound, and the further fact that importations of onions must differ in size, the entire situation seemed to offer no valid reason why the long established rule of the customs authorities that 57 pounds weight shall be considered a bushel of onions was not the fairest course to take in the matter.

Let the foregoing be considered as amending the opinion already on file.  