WAITE, General Appraiser. The merchandise is an edible fungus, which, according to the testimony, grows on the bark of trees in China. It has been dried in the sun and packed loose in wooden cases for importation. It was assessed as a vegetable in its natural state under paragraph 257, tariff act of 1897, and is claimed to be dutiable at 22 cents per pound, by similitude to mushrooms, under paragraph 241, with an additional claim for free entry under paragraph 617. The latter contention we do not consider necessary to discuss. See G. A. 6,184 (T. D. 26,812). The claim under paragraph 241 is evidently the one upon which the importers rely.

According to the testimony, this fungus is used by the Chinese as mushrooms are used, being usually cooked with meat. In this respect, however, its use seems to be the same as that of many of their curious vegetable substances, which witnesses generally state are prepared with meat. In claiming that this commodity should be dutiable under paragraph 241 by similitude to mushrooms, the importers probably rely on the case of Von Bremen v. United States, 168 Fed. 889, 94 C. C. A. 301, T. D. 29.501, where it was held that truffles in tins were classifiable under paragraph 241 by similitude to "mushrooms, prepared or preserved, in tins." However, the fungus here in question has not been so packed, but has been merely dried and packed loose in wooden cases; and, if to be considered similar to mushrooms at all, it more resembles the dried variety, which were similarly packed in barrels, and were held in the Zanmati Case, 153 Fed. 880, 82 C. C. A. 626, T. D. 28,054, to be dutiable as vegetables in their natural state. The fungus before us has been so classified by the collector, and we are of the opinion his decision is correct. Note G. A. 6,184, supra.

The protest is overruled.

Kammerlohr & Duffy (Joseph G. Kammerlohr, of counsel), for importers.

D. Frank Lloyd, Dep. Asst. Atty. Gen. (Thomas M. Lane, Asst. Counsel, of counsel), for the United States.

PLATT, District Judge. The merchandise in dispute is an edible fungus, which, according to the testimony, grows on the bark of trees in China. It was assessed for duty at 25 per cent. ad valorem under paragraph 257, tariff act of 1897, as a vegetable in its natural state. The appellants claim it is properly dutiable at only 22 cents per pound, by similitude to mushrooms, under paragraph 241, or, alternatively, as free under paragraph 617.

I was bothered for a moment as to whether this merchandise can be properly classified as a vegetable; but, upon reflection and an examination of the decisions, I am satisfied that it ought to be so treated for tariff purposes. On the similitude question, the reasoning of the Board is persuasive.

Decision affirmed.

E. B. ESTES & SONS v. UNITED STATES.

(Circuit Court, S. D. New York. November 12, 1909.)

No. 5,394.

CUSTOMS DUTIES (§ 27*)-CLASSIFICATION-MANICURE STICKS-"MANUFACTURES OF WOOD."

Manicure sticks, being completed articles of wood, several inches long, pointed at one end and beveled off at the other to form a cutting edge, are "manufactures of wood," and dutiable as such under Tariff Act July 24, 1897. c. 11, § 1, Schedule D, par. 208, 30 Stat. 168 (U. S. Comp. St. 1901, p. 1647).

[Ed. Note. For other cases, see Customs Duties, Cent. Dig. §§ 60-65; Dec. Dig. § 27.*

For other definitions, see Words and Phrases, vol. 5, p. 4363.]

On Application for Review of a Decision by the Board of United. States General Appraisers.

The decision rendered by the Board of Appraisers, which is reported as G. A. 6,828 (T. D. 29,358), affirmed the assessment of duty by the collector of customs at the port of New York. The Board's opinion reads as follows:

MCCLELLAND, General Appraiser. The merchandise which is the subject of these protests is invoiced as "toothpicks," and was returned by the appraiser as manufactures of wood. * * The appraiser, in his special report on the protests, states that "the articles are not toothpicks, but manicure sticks, consisting of pieces of wood 44 inches long, pointed at one end and beveled off at the blunt end to form a cutting edge, designed for use to manicure finger nails." This statement of the condition and character of the merchandise is confirmed by the testimony of the official examiner who passed the same, and is not controverted by protestants.

Counsel for protestants cite U. S. v. Knipscher (C. C.) 152 Fed. 590, T. D. 27,855, and Hartranft v. Wiegmann, 121 U. S. 609, 7 Sup. Ct. 1240, 30 L. Ed. 1012, in support of the claim that these sticks are not "manufactures of wood"; but we think there is nothing in the reasoning or conclusion in either case to sustain their contention. Here we have articles of very general use, with a distinct trade-name, deliberately fashioned into shape and ready for use. We find them to be manufactures of wood, and hold that duty was properly assessed.

The protests are accordingly overruled.

Kammerlohr & Duffy (John G. Duffy, of counsel), for importers. D. Frank Lloyd, Deputy Asst. Atty. Gen. (William K. Payne, Asst. Atty., of counsel), for the United States.

MARTIN, District Judge. The articles in question are concededly manicure sticks. They were assessed for duty at 35 per cent. ad valorem under Tariff Act July 24, 1897, c. 11, § 1, Schedule D, par. 208, 30 Stat. 168 (U. S. Comp. St. 1901, p. 1647), as "manufactures of wood." The importers claim classification under paragraph 198, 30 Stat. 167 (U. S. Comp. St. 1901, p. 1646), at 20 per cent., as wood unmanufactured, or at 15 per cent., under the same paragraph, as For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes

cabinet wood, or at 20 per cent., under paragraph 200, 30 Stat. 167 (U. S. Comp. St. 1901, p. 1646), as sticks, or free of duty, under section 2, Free List, par. 700, 30 Stat. 202 (U. S. Comp. St. 1901, p. 1689).

I concur in the finding of the Board that this is a manufactured product. Decision affirmed.

Ex parte WONG YOU et al.

(District Court, N. D. New York. March 16, 1910.)

1. ALIENS (§ 21*)-GENERAL IMMIGRATION ACT-APPLICABILITY TO CHINESE. The Chinese exclusion acts are to be read in pari materia with Immigration Act Feb. 20, 1907, c. 1134, 34 Stat. 898 (U. S. Comp. St. Supp. 1909, p. 447), so far as they apply to Chinese aliens seeking to enter the United States; the immigration act being equally applicable to Chinese aliens surreptitiously entering the country as to other aliens.

[Ed. Note. For other cases, see Aliens, Cent. Dig. § 74; Dec. Dig. § 21.* Citizenship of Chinese, see notes to Gee Fook Sing v. United States, 1 C. C. A. 212; Lee Sing Far v. United States, 35 C. C. A. 332.]

2. ALIENS (§ 31*)—UNLAWFUL ENTRY-DEPORTATION.

Immigration Act Feb. 20, 1907, c. 1134, § 20, 34 Stat. 904 (U. S. Comp. St. Supp. 1909, p. 459), provides that an alien entering the United States in violation of law shall be deported to the country whence he came. Section 21 requires the Secretary of Commerce and Labor to cause such alien to be returned to the country whence he came, as provided by section 20. Section 35 declares that the deportation shall be to the trans-Atlantic or trans-Pacific ports from which the aliens embarked for the United States, or, if such embarkation was for foreign contiguous territory, to the foreign port at which the alien embarked for such territory. Held, that where Chinese embarked from Hong Kong, China, for a Canadian port, remaining in Canada for various lengths of time, their original intention being to enter the United States, which they ultimately did from Canada illegally and surreptitiously, they were properly returned to Hong Kong, and not to Canada.

[Ed. Note.-For other cases, see Aliens, Cent. Dig. § 92; Dec. Dig. § 31.*] 3. ALIENS (§ 32*)-CHINESE-EXCLUSION-IMMIGRATION INSPECTOR-JURISDIC

TION.

An immigration inspector has jurisdiction to exclude Chinese aliens found and arrested in the act of entering the United States, whether they formally applied for admission or not.

[Ed. Note. For other cases, see Aliens, Dec. Dig. § 32.*]

4. ALIENS (§ 31*)-CHINESE-EXCLUSION-DEPORTATION.

Where alien Chinese are foiled in an effort to enter the United States illegally over the Canadian boundary, they are not subject to deportation to China, but only to be turned back to Canada.

[Ed. Note. For other cases, see Aliens, Cent. Dig. § 92; Dec. Dig. § 31.*] Application by Wong You and others for writs of habeas corpus to procure their release from custody under orders for deportation made under immigration laws, on the ground that they were alien Chinese held in the United States under deportation proceedings. Writs dismissed, and petitioners remanded.

H. E. Owen, for the United States.

B. W. Berry, for petitioners.

For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes

RAY, District Judge. As to Hoen Chee, or Hom Chee, the writ has been dismissed, and the petitioner remanded, as his case has not been passed upon by the Commissioner of Commerce and Labor.

Wong You and Wong Cheen, or Wong Chun, were taken into custody on the 22d day of October, 1909, at Utica, N. Y., and Wong Mon Sue, or Wong Yip, and Ju Fong were taken into custody November 28, 1909, at Rouses Point, N. Y., on the allegation they and each of them were alien Chinese persons and had entered the United States surreptitiously from the Dominion of Canada at a point not designated as a port of entry and without having produced a certificate of admission or having been examined or inspected as required by the immigration laws and regulations of the United States, and had unlawfully entered and were unlawfully in the United States in violation of section 36 of the act entitled "An act to regulate the immigration of aliens into the United States," approved February 20, 1907 (Act Feb. 20, 1907, c. 1134, 34 Stat. 908 [U. S. Comp. St. Supp. 1909, p. 466]); such entry having been made a few days prior to the dates mentioned. When so taken into custody, these Chinese aliens had not settled down and become a part of the resident population of the United States, not having reached their respective place of destination in the United States. Soon thereafter warrants for the arrest of said persons were issued by the Secretary of Commerce and Labor under the provisions of the immigration laws of the United States and the rules and regulations of the said Department of Commerce and Labor, and they were arrested and held thereunder and given opportunity for a full and a fair hearing and opportunity to show cause why they should not be deported under the provisions of said immigration laws and to have counsel. A full and fair hearing was had, and all evidence offered was taken and duly considered, and thereupon it was held and decided that said Chinese persons were aliens and had very recently entered the United States surreptitiously and in violation and defiance of law, as aforesaid, and were therefore unlawfully in the United States in violation of law. All the proceedings and testimony were duly transmitted to the Secretary of Commerce and Labor. The law as to a hearing was in all respects complied with, and the Acting Secretary of Commerce and Labor held that such Chinese persons were aliens, and that each of them entered the United States in violation of section 36 of the immigration laws, viz., act of Congress approved February 20, 1907, and rule 24 of the immigration regulations, and were in the United States, when arrested, in violation of law and unlawfully and had entered unlawfully.

On the 17th day of November, 1909, the Secretary of Commerce and Labor made and issued a warrant of deportation under said act (sections 36, 20, and 21) as to Wong You, Wong Cheen, or Wong Chun, and on the 4th day of January, 1910, made and issued a like warrant as to Wong Mon Sue, or Wong Yip, and Ju Fong. At the time the writ of habeas corpus was issued herein said named persons, so ordered deported, were in the custody of S. R. Horton, Chinese inspector and inspector of immigration, under such orders and judgments of deportation to whom they had been delivered for the execution of

same. The warrants for the deportation of Wong Cheen, or Wong Chun, and Wong You recite that such persons are aliens; that they entered the United States in violation of section 36 of the said act (immigration laws, approved February 20, 1907), and rule 24 of the immigration regulations, and without being inspected under any of the provisions of said act, and commands that they be deported and returned "to China, the country whence he came." In the case of Wong Mon Sue, or Wong Yip, and Ju Fong, the recitations of the warrant are substantially the same; but it does not in terms command or direct that such persons be deported or returned to China, but "to the country whence he came." However, the commissioner is directed to purchase transportation for them from Malone, N. Y., to China.

It will be noted that these proceedings have been had under the provisions of the immigration laws and immigration rules and regulations. The petitioners claim that these proceedings had and warrants of deportation issued are null and void, and were made or granted without jurisdiction; that the immigration laws (the act referred to) have no application to Chinese aliens; that such aliens, when found in the United States, regardless of how or when they came, must be arrested and dealt with under the provisions of the Chinese exclusion acts and taken before a United States judge or commissioner, who alone may deport Chinese aliens; that, in any event, as these Chinese aliens, concededly, came from the Dominion of Canada into the United States, they must be returned to Canada; and that the warrants of deportation are void and made without jurisdiction, in that they command a deportation or return to China and not to Canada, which it is claimed is the country whence they came.

The hearings given, or trials had, were in all respects full and fair. There has been no unfair or arbitrary or unlawful action or conduct, provided the Department of Commerce and Labor had jurisdiction to deal with these persons at all under the immigration laws, and deport them to China or to any place. I do not doubt the right and power of the Department of Commerce and Labor to deal with these persons, Chinese aliens, under and in conformity with the provisions of the said immigration laws and the rules and regulations which are in aid thereof and supplementary thereto and authorized thereby.

(1) These persons are aliens.

(2) They entered the United States surreptitiously, not at a port of entry, and without inspection or examination. They entered in defiance and in violation of law. They came with the intention of remaining.

(3) They placed themselves in the United States by violating our laws, by their own unlawful acts, and cannot, therefore, be heard to say they are not here in violation of law, or unlawfully.

(4) They came into the United States in violation of the immigration act or laws and, being aliens, were and are subject to its provisions.

(5) Chinese aliens are not exempt from the provisions of the immigration laws, rules, and regulations.