peculiar conditions, but whether in the ordinary course of the wholesale trade kippered herrings in other than tin boxes could be and were imported. The testimony on the part of the Government's witnesses will be briefly referred to. The first witness mentioned in the brief of the Government is William H. White, who was a dealer in poultry and game, and who testified that since the previous fall he had imported kippered herring. It appeared that he had only been dealing in kippered herring since the previous fall, his testimony having been taken in April, 1910, and that the herring imported were similar to Scotch herring, and were imported dry. The next witness, Thomas Smith, testified that he had himself prepared kippered herring in this country, and when asked if he had imported kippered herring, replied: Well, I can't say that I have, but they are imported. He further testified that they are imported in boxes containing 45 to 50 in a box, and were sold to the trade in general. His information as to these fish being imported was that he secured them from a dock. The next witness was John J. Page, who testified that he had imported kippered herring, but when asked what part of his business it was, testified that his business was mainly that of dealing in fresh fish; that his imported fish consisted of about 5 per cent of his business. When asked what proportion of this 5 per cent consisted of herrings, he replied that not over 1 or 2 per cent. This, it will be seen, is a very small percentage of the business transacted by this dealer. He also testified that he only imported them during the cool weather: We probably begin in October, and we wind up about the end of April. It further appeared that these fish were sold by him as smoked herring. He testified as follows: Q. And those fish which you have referred to as the kippered herring are really a variety of smoked herring?-A. A smoked herring; that is what we call them. Q. Do you sell them as smoked herring?-A. Sell them as kippers or kippered herring. * * * Q. Do you sell them as smoked herring?-A. If a man comes in and says he wants a smoked herring we give him these. I would call it a smoked herring or kippered herring, either one. It is not altogether clear from this testimony as to whether the importations made by this witness were, in the proper sense of the term, kippered herring. The testimony showed that a kippered herring is one salted and smoked only for a short time, about 20 hours. It is obvious that a herring may be so smoked as to make it capable of being shipped at any season of the year. The testimony of L. H. Smith is somewhat similar. It is to be noted that none of these witnesses dealt in kippered herring in large quantities. It is also noticeable that by the testimony offered by the Government it appears that kippered herring were not imported except during certain seasons of the year. As opposed to this testimony there is the testimony of the importers' witnesses, who testified as to experiments in introducing kippered herring which have failed. Mr. Goldmark, who is a member of the importing firm, testified to having attempted to introduce kippered herring in boxes, and that a trial shipment of 50 boxes was brought in, was put in the refrigerator of the steamship, but notwithstanding this it was an unsuccessful experiment. He also describes the process by which the fish are prepared in Scotland. The witness said that they are split, the entrails removed, and the fish hung up in wooden houses and smoked lightly for about 20 hours; that they are then taken down, put in tins and hermetically sealed; that for consumption they are not put up in tins, but in boxes, and that none of these herring in boxes are exported to the United States; and that he would be very much. surprised to know that any such were imported. George H. Pearson, another importer called by the contestant, described the process of preparing kippered herring for market, and testified that in his opinion kippered herring could not be imported commercially except in tin cans. He answered the question: "Do you mean that it would not be practical or profitable to import them in any other way?" by saying: "I mean the method of curing the kippered herring is such that they are practically and positively a perishable article." He testified that he had seen some herring that were brought here in boxes a long time ago and that the effort to bring them was a total failure, simply because the herring were perishable, and that therefore it was never considered practicable, commercially. Those herrings were brought here in a freezer as an experiment. Seymour S. Mack, another witness for the importers, testified that the kippered herring imported by their firm was herring split and smoked, packed in a tin and hermetically sealed. He also testified, on cross-examination, that when engaged with another firm of Austin, Nichols & Co. an attempt was made to import 10 boxes of kippered herring, but when they arrived they were spoiled, and that was the first and last importation of them. B. M. Shipman, a witness on behalf of the importers, testified that he was engaged as an importer of salt, canned, and dried fish, and was asked whether he had ever imported kippered herring in any way other than in tins. He replied that he had made several importations; that four years ago was his first one and February, 1910, was his last one; that these were very small and were in wooden boxes. When asked if he found it was commercially practicable to import them that way, he answered that he did not. He found it absolutely impossible to import kippered herring and bring them in successfully unless they were embalmed. He further testified that in 1905 he brought over one box, but it was commercially a failure. It was absolutely slimy in 48 hours. The next importation he brought in a refrigerator, 100 boxes. In answer to the question whether that was commercially a success, he replied: No; they were absolutely gone when I took delivery of them again-slimed, you know. The next was an importation from Halifax, Nova Scotia, September, 1909, just after the tariff bill was passed. He then imported four or five boxes. He saw these boxes packed in Halifax; and when they arrived in New York they were slimy again. When asked if he could bring them in in wholesale quantities in a refrigerator, he answered: No, sir; I will never bring in another one in any quantity or in any shape. I think it is impossible to do it unless you embalm them or dip them in boracic acid, which the Government I don't think would allow. The fresh fish, a kipper is a kipper; if it is heavy enough salted to be a bloater it will keep, but never as a kipper, because that is practically a fresh herring. Q. The kippered herring, then, have less salt?—A. It is only washed in salt about five minutes to dry the blood out and cleanse it and give it a salt flavor. In answer to the question, "How does that compare with the amount of salt used on the herring packed in boxes?" he replied, "That is a fish cured in salt." This testimony is corroborated by Thomas Robertson, another importer, who testified to the effect that it is commercially impracticable to import kippered herring in boxes. It is not altogether clear from the record that some of the Government's witnesses have not confused smoked herring with kippered herring. But however this may be, we think that the great preponderance of the testimony in this record shows that while occasional importations of so-called kippered herring in packages other than in tins have been made, the merchandise being sold for immediate consumption, to only certain classes of trade partaking more of the nature of retail transactions, importations of kippered herring in boxes is not commercially possible in the wholesale way, and that fugitive or occasional importations, confined to a particular season of the year, and in a small way, do not determine the commercial designation. See Sonn v. Magone (159 U. S., 417); Stewart . United States (113 Fed. Rep., 928); Morrison . Muller (37 Fed. Rep., 82); Dieckerhoff v. Robertson (44 Fed. Rep., 160); and Lamb v. Robertson (38 Fed. Rep., 716). The decision of the Board of General Appraisers is affirmed. UNITED STATES v. MATAGRIN (No. 54).1 1. STATUTORY CONSTRUCTION. An importer is entitled to the benefit of the rule that revenue laws imposing taxes and like burdens should receive a reasonably strict construction. 2. SAME-A PROVISO. Unless the intent of the Congress is manifest that a proviso to a paragraph was meant to have a larger scope than the paragraph itself, and so to include something more within its operation, a recognized rule is to be applied and the proviso is to be construed with reference to the subject matter of the paragraph to which it is appended. 3. SAME A NEGATIVE. A negative may have, if the legislative intent is clear, the force of an affirmative; but a negative will not be given the force of an affirmative if there be a different field for its operation where, unless this negative should be treated as a negative proper, another provision of the same statute would be thereby modified or destroyed. 4. SAME PROVISO TO PARAGRAPH 195 AND SUBSECTION 18 OF SECTION 28, TARIFF ACT OF 1909. The proviso to paragraph 195, tariff act of 1909, is perhaps broader than it was necessary to make it, but it is apt nevertheless, and it is held to have been intended, to save for operation subsection 18 of section 28 of that act making dutiable other containers than those enumerated in paragraph 195. 5. PARAGRAPH 195, TARIFF ACT OF 1909, AND ITS LAST PROVISO. The clause "shall not be dutiable unless their contents are dutiable" in a proviso to paragraph 195, tariff act of 1909, does not affirmatively or otherwise impose any duties. United States Court of Customs Appeals, March 13, 1911. APPEAL from decision of the Board of United States General Appraisers, G. A. 7015 (T. D. 30571). [Affirmed.] D. Frank Lloyd, Assistant Attorney General (Martin T. Baldwin on the brief), for the United States. Brooks & Brooks for the appellees. Before MONTGOMERY, SMITH, BARBER, DE VRIES, and MARTIN, Judges. MONTGOMERY, Presiding Judge, delivered the opinion of the court: The importation consisted of paper boxes containing leather gloves. The gloves were assessed at specific rates of duty by the dozen pairs, and the boxes were assessed at 45 per cent ad valorem as paper boxes under paragraph 418 of the tariff act of 1909, under a construction of the Treasury Department first promulgated in T. D. 29963 and reaffirmed in T. D. 30046, which construed the last proviso of section 195 as intending to impose a duty upon containers of the character here involved. The board held these containers not to be dutiable, and from this decision the Government appeals. 1 Reported in T. D. 31406 (20 Treas. Dec., 487). The two paragraphs in question are as follows: 418. All boxes made wholly or in chief value of paper or rapier-maché, if covered with surface-coated paper, forty-five per centum ad valorem. 195. Cans, boxes, packages, and other containers of all kinds (except such as are hermetically sealed by soldering or otherwise), composed wholly or in chief value of metal lacquered or printed by any process of lithography whatever, if filled or unfilled, and whether their contents be dutiable or free, four cents per pound and thirty-five per centum ad valorem: Provided, That none of the foregoing articles shall pay a less rate of duty than fifty-five per centum ad valorem; but no cans, boxes, packages, or containers of any kind, of the capacity of five pounds or under, subject to duty under this paragraph, shall pay less duty than if the same were imported empty; and the dutiable value of the same shall include all packing charges, cartons, wrappings, envelopes, and printed matter accompanying them when such cans, boxes, packages, or containers are imported wholly or partly filled with merchandise exempt from duty (except liquids and merchandise commercially known as drugs) and which is commonly dealt in at wholesale in the country of original exportation in bulk or in packages exceeding five pounds in capacity: Provided further, That paper, cardboard or pasteboard wrappings or containers that are made and used only for the purpose of holding or containing the article with which they are filled, and after such use are mere waste material, shall not be dutiable unless their contents are dutiable. Under previous tariff acts the coverings of specific duty goods or of free goods have for many years been admitted free. This holding has not been based upon express declaration of exemption, but has rested upon the view that usual coverings can not be brought within the general language imposing a duty on like articles without reference to their uses, but that direct language is required to bring them within the dutiable class. The rule was established by the case of Karthaus v. Frick (Fed. Cas., 7615), and has been frequently reaffirmed. United States . Leggett (66 Fed. Rep., 300). It is conceded, therefore, by the Government that unless there be found language in the statute which in terms imposes a duty upon these goods as coverings, the ruling of the court below was correct. It is further conceded by the Government that all of section 195 preceding the last proviso relates to metal coverings and their wrappings, so that if a duty is imposed by this statute upon the coverings here in question, it must be held to be imposed under the terms of the last proviso. The general rule of statutory construction that a proviso is to be construed with reference to the subject matter of the paragraph to which it is appended is recognized by counsel for Government, but it is pointed out that this rule is not one of universal application and that there cases in which a proviso may be treated as a substantive enactment extending beyond the particular paragraph in which it is placed, and this contention is supported by abundant authority. United States . Whitridge (197 U. S., 135); Banking Co. v. Smith (128 U. S., 174); Lai Ming v. United States, supra, p. 5 (T. D. 30770). It is a rule, however, which is not to be ignored in the construction of statutes, and unless the intent of Congress is made manifest that the proviso was designed to have a larger scope, it should be restricted in its construction as indicated by the rule, that a proviso is generally |