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With reference to the first of the above contentions, it was the argument of the appellant, as summarized by the Court, "that the treaty was not ratified within the conditions prescribed by its terms or in accordance with the terms of the act of December 17, 1903; that the President of the United States had no power to negotiate the treaty, since it involved fixing revenues of the United States for a definite period of time, and that the act of Congress of December 17, 1903, could not ratify or make valid the treaty under the Constitution. On this phase of the case, it is, in effect, the contention of the appellant that the fixing of the duties was initiated by the President rather than by the House of Representatives of the United States Congress; that the fixing of such rate was a legislative duty devolving upon the Congress, the initiation of which. must originate in the House of Representatives; that the ratification of the treaty could be nothing more than a delegation of its duties. to the President, which the Constitution prohibits."

After enumerating the circumstances leading up to the issuance by the President on December 17, 1903, of his proclamation, in accordance with the act of December 17, 1903, giving effect to the convention of 1902 with Cuba, the Court declared as follows, holding the convention to be valid:

"With reference to the question raised by the appellant as to the validity of the Cuban Reciprocity Treaty, we find it unnecessary to devote much time to discussion of this matter. For the purposes of this case it might be regarded as a sufficient answer to appellant's contention to point out that, in the Tariff Act of 1930, Congress treated the treaty and act of December 17, 1903, as valid by the special reference made to it, which we have hereinbefore quoted. Moreover, it is admitted by the appellant that the validity of the treaty was not questioned by Congress and that by paragraph 750 of the Tariff Act of 1930 it was not the intent of Congress to make alligator pears from Cuba dutiable unless they were not free of duty at the time of the effective date of said reciprocity treaty.

"The provisions of the Cuban Reciprocity Treaty, and the act of Congress of December 17, 1903, have, on several occasions, been under consideration by our courts, and in every one of the decided cases involving such consideration the treaty and the act were given full force and effect, and the validity thereof was in no respect questioned. United States v. American Sugar Co., 202 U.S. 563; Faber, Coe & Gregg (Inc.) v. United States, 19 C.C.P.A. (Customs) 8. T.D. 44851.

"That Congress, in passing the Tariff Act of 1930, and providing for a duty on alligator pears, did not intend to repudiate the provisions of the Cuban Reciprocity Treaty and the act of December 17, 1903, and that it did not question the validity of such treaty and statute, we think is conclusively shown by the facts hereinbefore recited."

After referring to the rejection by the Senate of a proposed amendment to that portion of the Tariff Act of 1930 which provided that the commercial convention with Cuba should not be affected, and stating that it was clearly apparent "that Congress never intended, in the act of 1930, to make alligator pears from Cuba dutiable unless such tariff treatment was fully warranted under the terms of the Cuban Reciprocity Treaty and the act of December 17, 1903 ", the Court commented as follows upon the question of a delegation to the President of Congressional powers:

"As we see the question, it is not a case of Congress delegating any of its powers to the President. By its act of December 17, 1903, it embodied the substance of the treaty into a legislative act and authorized the President to make such law effective by proclamation. After the Spanish American War, it was desirable for this country and Cuba to have certain reciprocal tariff adjustments. It was well known that revenue measures must originate in the House of Representatives. With this fact fully in mind, the treaty which brought the minds of the two nations together was negotiated and ratified conditionally upon the approval of Congress. Congress not only approved the provisions of the treaty, but by act, originating in the House, enacted the provisions of the treaty into statutory law. Just how this Government could have properly arrived at and secured reciprocal tariff relations with Cuba in any other way has not been suggested here. On account of our views thus expressed, it would seem that appellant's other contentions with reference to the invalidity of the treaty require no consideration here."

In support of the second of the contentions mentioned above, the appellant insisted that avocados or alligator pears fall within the term pears " in paragraph 262 of the Tariff Act of 1897, which reads:

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"Apples, peaches, quinces, cherries, plums, and pears, green or ripe-25 cents a bushel "

and that for this reason they could not be free of duty, as fruits, under paragraph 559 of the act of 1897, which reads:

"Fruits and berries, green or ripe or dried and fruits in brine not specifically provided in this Act."

The Court, after examining in some detail the classification of avocados as pears, concluded that the only similarity between avocados and common pears is in their external form. The Court remarked in this connection:

"The United States Customs Court held that alligator pears were not pears within the provision of the tariff act of 1897, and that the plaintiff there, appellant here, had not proven that the importation was pears, commercially, since the proof, when taken in the most favorable light, could only establish that they were commercially known as pears in a limited area or portion of the United States.

"The Customs Court furthermore held that under a decision, by General Appraiser Howell, more particularly referred to hereinafter, decided prior to December 17, 1903, avocados were declared to be free of duty within the meaning of the Cuban Reciprocity Treaty. The Customs Court held that the treaty was valid, making special reference to the fact that both houses of Congress approved the treaty, and that the act of Congress of December 17, 1903, corresponded to the terms contained in the treaty, and that the same had not been repealed."

The Court expressed the opinion that the main question in the case, upon the record, was whether avocado pears, upon the effective date of the convention of 1902, were being imported into the United States free of duty. The Court stated:

"It seems to us that we must construe Article I of the treaty to apply only to those articles which were, at the time of the effective date of the treaty, the subject of commerce between Cuba and the United States. The treaty definitely limited the application of Article I to articles which are now imported into the United States free of duty' and provided that such articles shall continue to be admitted by the respective countries free of duty'. This phrase clearly limits the application of Article I of the treaty to goods which at that time (the effective date of the treaty) were being imported into the United States from Cuba, free of duty.

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"It is well settled law that the classification of the collector must be presumed to be correct. It is equally well settled that it will be presumed that in making said classification the collector's findings as to all material and necessary facts were consistent with such classification. Vitelli & Son v. United States, 7 Ct. Cust. Appls. 243, 275, T.D. 36544; United States v. Barker Bros. et al., 17 C.C.P.A. (Customs) 6, T.D. 43310.

"We think the action of the collector in classifying the merchandise at bar as free, for the reasons stated in his report, placed upon the protestant the duty of proving that, at the time of the effective date of the treaty, avocado pears were not being imported into the United States from Cuba free of duty. If the protestant has proven that, on the effective date of the treaty, they were not being imported into the United States at all, or if the protestant has proven that on such date they were being imported and were being assessed with duty, then it seems clear that the protest should have been sustained.

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The record before us does not show that avocado pears were not imported from Cuba prior to the effective date of the treaty, or that avocado pears imported from Cuba prior to such date were assessed with duty."

Upon the record as thus summarized the Court sustained the position of the importer (appellee) and held "that avocados from Cuba should be held free of duty by virtue of the provisions of the Cuban Reciprocity Treaty and the act of December 17, 1903, and that the trial court properly overruled the protest of appellant."

57295--34-3

INTERNATIONAL CONVENTION FOR THE ABOLITION OF IMPORT AND EXPORT PROHIBITIONS AND RESTRICTIONS

Japan

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The Secretary General of the League of Nations informed the Secretary of State by a circular letter dated April 4, 1934, of the position taken by Japan in respect of the convention and protocol for the abolition of import and export prohibitions and restrictions, signed at Geneva November 8, 1927, and the supplementary agreement and protocol to the convention signed July 11, 1928. The text of the letter follows:

"I have the honour to inform you that the Japanese ConsulGeneral at Geneva has transmitted to me, by a communication dated March 16, 1934, a Declaration by which the Japanese Government, in accordance with paragraph 6 of the Protocol signed at Paris on December 20, 1929, concerning the entry into force of the abovementioned Convention and Agreement, release themselves, as from June 30, 1934, from the obligations of the International Convention for the Abolition of Import and Export Prohibitions and Restrictions, signed at Geneva, November 8, 1927, and of the Supplementary Agreement to that Convention, signed at Geneva, July 11, 1928, which they had accepted in virtue of the above-mentioned Protocol. "I beg to add that the Netherlands and Japan are the only States which still remain bound by the provisions of the above-mentioned Convention and Supplementary Agreement and that the Government of the Netherlands have already exercised the right accorded by Article 6 of the above-mentioned Protocol and will cease to be bound by the provisions of the instruments in question on June 30, 1934 (see my letter C.L.182.1933.II.B of September 23, 1933).”

Japan

TARIFF TRUCE 6

By a circular letter dated April 4, 1934, the Secretary Genera! of the League of Nations informed the Secretary of State of the withdrawal of Japan from the tariff truce of May 12, 1933. The notification of withdrawal was made by the Japanese Government in a communication to the Secretary General dated March 16, 1934, and became effective 30 days thereafter.

COPYRIGHT

RECIPROCAL COPYRIGHT RELATIONS BETWEEN THE UNITED STATES AND THE FREE CITY OF DANZIG

Reciprocal copyright relations between the United States and the Free City of Danzig were established on April 7, 1934, by Procla

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mation No. 2079, issued by the President of the United States. Pursuant to the provisions of the copyright law in force in the Free City of Danzig, the benefit of the copyright laws of the Free City of Danzig were extended to citizens of the United States simultaneously with the issuance of the President's proclamation in the United States on April 7, 1934, declaring that citizens of the Free City of Danzig are entitled to the benefits of the act of Congress approved March 4, 1909, and acts amendatory thereof, relating to copyright. The President's proclamation is as follows:

"WHEREAS it is provided by the act of Congress approved March 4, 1909 (ch. 320, 35 Stat. 1075-1088), entitled 'AN ACT To amend and consolidate the Acts respecting copyright', that the copyright secured by the act, except the benefits under section 1 (e) thereof as to which special conditions are imposed, shall extend to the work of an author or proprietor who is a citizen or subject of a foreign state or nation, only upon certain conditions set forth in section 8 of the act, to wit:

'(a) When an alien author or proprietor shall be domiciled within the United States at the time of the first publication of his work; or (b) When the foreign state or nation of which such author or proprietor is a citizen or subject grants, either by treaty, convention, agreement, or law, to citizens of the United States the benefit of copyright on substantially the same basis as to its own citizens, or copyright protection substantially equal to the protection secured to such foreign author under this Act or by treaty; or when such foreign state or nation is a party to an international agreement which provides for reciprocity in the granting of copyright, by the terms of which agreement the United States may, at its pleasure, become a party thereto; and

WHEREAS it is provided by section 1 (e) that the provisions of the act so far as they secure copyright controlling the parts of instruments serving to reproduce mechanically the musical work, shall include only compositions published and copyrighted after this Act goes into effect, and shall not include the works of a foreign author or composer unless the foreign state or nation of which such author or composer is a citizen or subject grants, either by treaty, convention, agreement, or law, to citizens of the United States similar rights'; and

"WHEREAS the President is authorized by section 8 to determine by proclamation made from time to time the existence of the reciprocal conditions aforesaid, as the purposes of the act may require; and

WHEREAS satisfactory evidence has been received that in the Free City of Danzig the law permits and from the date of this proclamation will grant to citizens of the United States the benefit of copyright on substantially the same basis as to citizens of the Free City of Danzig; and

"WHEREAS satisfactory official assurance has been given that in the Free City of Danzig the law now permits to citizens of the

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