In re Johnson

56 F. 822, 1893 U.S. App. LEXIS 2722

• Court: U.S. Circuit Court for the District of Southern New York
• Decided: June 27, 1893
• Status: Published

Opinion

LACOMBE, Circuit Judge.

Neither construction of this paragraph 295 is altogether satisfactory. It hi extremely obscure, but, upon considering the various interpretations of it which have been suggested, I adhere to the view that it is to he construed as follows: There should be laid a duty of 30 per cent, ad valorem upon (a) iish in cans or packages made of tin or other material, (except anchovies and sardines,) and (b) fish packed in any manner other than such as has been heretofore specially enumerated or provided; the apparent intent, being not so much to lay the duty upon fish, but to lav a duty upon the tin can that brought the iish in, and I am persuaded to take that view of the phraseology of the immediately succeeding section, 290. For that reason I shall affirm the decision of the board of appraisers.

So far as tlie bloater paste is concerned, which, the evidence shows to be bloaters ground into a paste, and mixed with spices, I differ from the board of appraisers. It serais not unreasonable to suppose that congress may have intended, by the use of phrase, in paragraph 287, “pickles and sauces of all kinds,” to cover this particular article, but, if so, they have conspicuously failed to manifest their intention in the language they have used. The use of the word “including,” and the placing of the clause in the paragraph referring to vegetables of all kinds, coupled with the circumstance that it is grouped with other provisions under the subhead of “Farm and Field Products,” would make it impossible for this court to hold that it included a fish sauce, without legislating on the subject, which this court does not sit here to do. For that reason I shall reverse the board of appraisers as to the bloater paste, and direct it to be classified under paragraph 295.