42 
THE NATIONAL NURSERYMAN. 
PROTEST OVERRULED . 
Adverse Decision by New York Customs Collectors Regarding 
Classification of Evergreen Seedlings Sustained by 
Board of General Appraisers — The Decision 
In Full—The Protest, Brief and Affi¬ 
davits. 
A decision by the Board of United States General Apprais¬ 
ers at the port of New York, regarding the classification of 
evergreen seedlings, under a protest by August Rolker & Sons, 
New York, against the decision of the collector of customs at 
New York, is of general interest to the nursery trade. 
On August 12, 1902, the following self-explanatory protest 
was filed : 
New York, August 12th, 1902. 
To the Honorable Collector of the Port, New York : 
Sir:—We herewith protest against the assessment of one dollar a 
thousand and 15 per cent, ad valorem duties on our importation by 
S. S. Cevic from Liverpool of three cases of nursery stock, marked 
A. R. S N. 315 a 317, entry N. 65598, under date of April 8th, 1902. 
We claim that under the present tariff act, approved July 24th, 1897, 
Schedule G, No. 252, said goods are liable only to twenty-five per cent, 
ad valorem duties, as stocks of evergreen plants, after having been 
transplanted as the invoice indicates, and not liable to pay duty as 
evergreen seedlings. 
We pay the additional duty demanded to obtain full possession of 
our goods, and respectfully ask to have said amount refunded. 
Yours very respectfully, 
AUGUST ROLKER & SONS, 
21 Barclay St., New York. 
BRIEF FOR THE HEARING. 
Following is a copy of the brief prepared by August Rolker 
& Sons, for the hearing of the protest before the appraisers : 
New York, October 16th, 1902. 
To the Honorable Board of General Appraisers Port of New York : 
Gentlemen : —In the matter of our protest 10346, dated August 12th, 
it appears on the face of the consular invoice that the plants in ques¬ 
tion are all stock of Juniperus Virginiana, an evergreen, and all trans¬ 
planted two years from the seedbed. We claim that under Schedule 
G, paragraph 252, transplanted evergreen seedlings are not liable to 
$1 per 1,000 and 15 per cent, ad valorem duties, but only 25 per cent, 
ad valorem as stocks of evergreen trees, or as general nursery stock 
not otherwise provided for. The change in the tariff laws, from no 
duty in the previous bill to 25 per cent, ad valorem under the Dingley 
bill, was made at the instance of the nurserymen’s trade. As such the 
definition of nurserymen should be of weight in considering the ques¬ 
tion at issue. As it was not practicable to have a selected committee 
of nurserymen attend here in person as witnesses, many living at great 
distances from New York, we obtained the views in writing of dis¬ 
tinguished nurserymen, and beg herewith to submit such letters re¬ 
ceived in evidence. These nurserymen draw a positive line of dis¬ 
tinction between plain evergreen seedlings and transplanted evergreen 
seedlings: the former are specially provided for in paragraph 252, 
Schedule G ; the latter are not specially provided for in said schedule, 
and should, therefore, be classified under the 25 per cent, ad valorem 
duty rating. The letters herewith submitted in evidence show that 
plain evergreen seedlings are such that are grown in the seed-bed and 
remain there one, two, three or more years before being sold or trans¬ 
planted. When transplanted from the seed-bed the character of the 
young plant gets changed. By trimming the roots, change of location, 
replanting at larger distances in rows, the plants grow to be more 
vigorous, become more valuable, and are then classified as transplants, 
or transplanted seedlings, stating the number of years elapsed since 
being transplanted, likewise the number of years, how often trans¬ 
planted. Usually a seedling is allowed several years in the seed-bed 
before being, transplanted, and a one-year transplanted seedling is in 
many instances more than three years of age. 
The young seedlings from the seed-bed are the cheaper plants : the 
act of transplanting, trimming the roots and the longer years spent in 
formation of new roots and general development render the trans¬ 
planted stock more expensive : and thus by this manipulation the 
former seedling plant enters into a new condition, a new stage of its 
life, and is properly called a new plant. 
If an evergreen tree were to remain a seedling in the eyes of the law, 
whether transplanted or not, then $1 a 1,000 only and 15 per cent, ad 
valorem could be assessed on all more valuable specimens that have 
been ten, fifteen or more years transplanted. Such interpretation would 
work less protection to the American nurseryman and besides give less 
revenue to the government. 
All of the foregoing is respectfully submitted to your consideration 
in deciding the question at issue. 
Verv respectfully yours, 
AUGUST ROLKER & SONS, 
New York, 31 Barclay Street. 
nurserymen’s affidavits. 
Letters from others on the same subject and of similar tenor, 
nurserymen’s catalogues that substantiated the Messrs. Rblker’s 
statement as to the classification of transplanted evergreen 
seedlings, and twelve sworn-to affidavits were presented at the 
delayed hearing, January 21st. 
These affidavits were given by Thomas B. Meehan, Dresh- 
ertown, Pa.; Storrs & Harrison Co., Painesville, Ohio ; D. Hill, 
Dundee, Ill.; William H. Moon, Morrisville, Pa.; A. Hoopes, 
of Hoopes Bro. & Thomas, West Chester, Pa.; George Achelis, 
West Chester, Pa.; Theodore J. Smith, Geneva, N. Y.; D. S. 
Lake, Shenandoah, Iowa.; A. Willis, Ottawa, Kan.; Albaugh 
Nursery & Orchard Co., Phoneton, Ohio ; Frank H. Weber, 
St. Louis, Mo.; Franklin Davis & Co., Baltimore, Ohio. 
The form of affidavit is as follows : 
Affidavit. 
.December. , 1902. 
I, the undersigned., being a member of the firm of 
. at., established in the nurserymen’s 
business since the year.herewith declare and state, that it is and 
has been the practice of my firm to distinguish between plain ever¬ 
green seedlings direct from the seedbed, and one, two, three or more 
years transplanted evergreen seedlings ; and that after having thus 
been transplanted, said seedlings are then considered by my firm to be 
young trees ; and to my best knowledge and belief, they are then 
considered and classified by the nurserymen’s trade in the assortment 
of general nursery stock as young evergreen trees. 
the decision. 
Following is the decision of the Board of General Apprais¬ 
ers, Vol. 6. No. 13, March 26, 1903, of Treasury Decisions : 
The importer claims the merchandise dutable at 25 per cent, ad 
valorem under the provisions of the same paragraph asevergreen 
trees or plants,” in that they have been transplanted before importa¬ 
tion, upon the contention that when an evergreen seedling has been 
transplanted that fact removes it from the catagory of seedlings and it 
becomes a tree or plant. As to the Buxus suffructicosa (case 293, pro¬ 
test 5151 h), the claim is made that these are cuttings and not seedlings,’ 
and it is so admitted by the collector. 
This question has been raised in previous protests and decided 
adversely to the protestants. In support of the protests in these cases 
there have been filed by the importers numerous affidavits, letters from 
botanists, and catalogues from nurserymen. It may be stated generally 
that these catalogues, letters, etc., relate to the years 1901 and 1902> 
confining the proofs made to those years. For that reason they are 
incompetent to establish trade designation as it existed at and prior to 
the time of the enactment of the present tariff law. 
An examination of the evidence submitted, however, discloses a 
lack of uniformity among the dealers in this trade as to the designa¬ 
tion in question. The contention of the importers, in brief, is that a 
tree propagated from a seed, after having been transplanted, ceases to 
be a seedling and becomes a tree; and that the term “ evergreen seed- 
