United States v. Hirsh

8 Ct. Cust. 163, 1917 CCPA LEXIS 75

• Court: Court of Customs and Patent Appeals
• Decided: May 28, 1917
• Docket: No. 1768
• Status: Published

Opinions

Barber, Judge,

delivered tbe opinion of the court:

Fluid malt extract imported in iron drums having a capacity of 10 English gallons each, equivalent to 12 J American gallons, was classified by the collector at the port of New York as condensed malt extract, and assessed 'for duty at 45 per cent ad valorem under the provisions of paragraph 246 of the tariff act of 1913, which paragraph is as follows:

246. Malt extract, fluid, in casks, 23 centg per gallon; in bottles or jugs, 45 cents per gallon; solid or condensed, forty-five per centum ad valorem.

The importers protested that the merchandise was dutiable either directly under paragraph 246 or by similitude by force of paragraph 386 at 23 cents per gallon, or, if not so, at 10 or 15 per cent ad valorem as an unenumerated article raw or unmanufactured in whole or in part under paragraph 385, which reads as follows:

385. That there shall be levied, collected, and paid on the importation of all raw or unmanufactured articles not enumerated or provided for in this section a duty of ten per centum ad valorem, and on all articles manufactured, in whole or in part, not provided for in this section, a duty of fifteen per centum ad valorem.

The Board of General Appraisers held the merchandise dutiable at 23 cents per gallon under paragraph 246, and accordingly sustained the protest.

The case is here on appeal of the Government.

• The Government contends that the term "cask” is always used to describe a wooden vessel and that the malt extract here being not therein imported can not be classified under paragraph 246. It contends for classification under paragraph 385.

The importers insist that the purpose of Congress was to include all kinds of malt extract in all kinds of packages in paragraph 246, and further that the intent is 'apparent in' the paragraph to impose a higher duty on the same when in small or retail packages' and a lower rate on large packages, and urge that this intent should be executed by holding the merchandise dutiable under the paragraph by similitude to malt extract imported in casks.

The iron drums hayo been separately assessed, so the only question is as to the proper duty chargeable upon the malt extract.

We think an understanding of the issue here will be aided by a knowledge of the legislative, administrative, and judicial history of the tariff provisions governing malt extract.

In the tariff act of 1883 there was no provision for malt extract eo.nomine. The Treasury Department in T. D. '2338 (July, 1875) had classified it as “beer” when imported in casks. The same classification was adopted in T. D. 5372 (August, 1882), where the merchandise was known as Dantzic spruce beer or malt extract, the nature of the container not being stated. , Malt extract was held to be a medicinal proprietary preparation in T. D..2867 (June, 1876), where the merchandise was Johann Hoff’s malt extract in glass bottles, sealed, stamped, and labeled as a medicine. In T. D. 4834 (April, 1881), the same article, imported apparently in casks, was given the same classification, with directions that the article should be so classified in whatever form imported. This was followed in T. D. 6917 (May, 1885), where the merchandise was. knowm as “Loeflund’s Diastase,” malt extract, the nature of the container not appearing. In T. D. 10157 (August, 1890) the department held that malt.extract which was nonmedicinal should be classified as a no’nenumerated manufactured article. The nature of the container does not appear.

In 1890 following these decisions Congress enacted in paragraph 338 a provision.for malt extract as follows:

338. Malt extract, fluid, in, casks, 20 cents per gallon; in bottles or Jugs; 40 cents per gallon; solid or condensed, forty per centum ad 'valorem.

In United States v. Eisner & Mendelsohn Co. (59 Fed., 352), decided in January, 1894, Johann Hoff’s Malt Extract in glass bottles holding each not more than a pint and not less than a quarter pint was under consideration." It had been assessed for duty as a medicinal preparation. The Board of General Appraisers had sustained a protest claiming dutiability under paragraph 338 of the act of 1890 above quoted. The Circuit Court, Coxe, Judge, in In re Eisner et al. (54 Fed., 671), decided March, 1893, had reversed the board, holding the merchandise to be dutiable as assessed. The Circuit Court of Appeals found the merchandise to be compounded of several ingredients prepared according to a secret formula and to be a medicinal proprietary preparation, but.it was, as stated, labeled a malt extract. It appeared also that there were other malt extracts which were proprietary preparations and that in addition others were made according to a public and well-known formula of Baron Liebig. These several preparations varied in consistency from a dry powder to a semifluid and were imported and bought in barrels, bottles, and jugs, by the pound or by the gallon.

The Circuit Court of Appeals, after reciting all these and other facts, held in. substance that in view thereof, mentioning specially that different rates of duty had been from time to time assessed Upon both the proprietary and nonproprietary' malt extracts, it was reasonable to infer, and the court did infer, that, in the enactment of the paragraph 338, it was the intent of Congress to cover all known kinds of malt extract in all known conditions in which it was imported, whether in bulk or in such smaller packages as were frequently characteristic of the proprietary preparations. The merchandise was held dutiable as malt extract.

In the. next tariff-act, 1894, paragraph 246, the preceding paragraph, was,amended by inserting after “malt extract,” the words, “including all preparations bearing the name and commercially known as such.”

■Paragraphs 298 of 1898, 309 of 1909, and 246 (hereinabove quoted) employ the identical language of the' act of 1890. • Thereunder, prior to the act of 1913, there were several decisions'covering malt extract in bottles, in casks, and in packages not stated,- all of which recognized the Eisner, case as authority, but it does not appear that the question of whether or not malt extract in metal (¡hums was dutiable under the paragraph was considered. See G. A. 2440 (T. D. 14718,) Abstract 6050 (T. D. 26289), Abstract 7074 (T. D. 26516), T. D. 32269, and Abstract 30994 (T.D. 33055).

1 Abstract-.32313- (T.. IX .33409) involved condensed malt'extract in drums classified by the collector under paragraph 309 .of the act of 1909: '■ It-was held by the board to be a nonenumerated manufactured article, but this 'court—see United States v. Conkey (4 Ct. Cust. Appls., 505; T. D. 33920)—held it to be dutiable as assessed upon the ground that as to condensed malt extract it mattered not under the paragraph what was its container. That was the only. question decided. . - ' ;

There is no evidence as to administrative practice in the assessment of malt extract in iron drums'. It is' claimed by the importers in argument and. not controverted as we understand, by the Government, that the use of metallic drums as containers of imported malt extract is of recent commercial adoption.

■ The merchandise here is conceded to be of the same character as that considered by this court in United States v. Britt, Loeffler & Weil (7 C.t. Cust. Appls., 63 ; T. D. 36389), but the issue there was whether the importation was fluid malt extract or condensed malt extract, no question as to the character of the container being raised.

At the outset we think the impression, obtained from the reading of the paragraph before us is,, as was said by the Circuit Court of Appeals in the Eisner case, that Congress intended to cover all kinds of malt extract in whatever condition imported and whether in bulk or smaller packages. This impression is strengthened when we consider the judicial and legislative history of the paragraph above set forth.

Assuming that intent when the paragraph was- first enacted, can it be said to have changed in the interim? All the subsequent enactments except that of 1894' are, as far as the subject matter (malt extract) is concerned, identical. No change of intent can therefrom be presumed, and we think the paragraph in the act of 1913 was intended, just as it was when first enacted, to cover all imported malt extract..

In this connection it should be noted that in this case a contrary view results in classifying an enumerated article under a paragraph (385) which in terms provides that it shall apply only to articles that are neither enumerated nor. provided for.

The inconsistency of this course is all the more apparent when we consider that inasmuch as these metallic drums are separately assessed the malt extract must- pay a higher rate of- duty than the law provides, for .that article; that is, -it results in penalizing the use of a Container which is .suitable and proper and the use of which the law recognizes by providing specifically for duty thereon.

.. The only, obstacle here that Interferes with the execution of the legislative intent, arises from, the fact that the word “casks” as most generally used does not' contemplate metallic containers like the drums here under consideration. Hence, reduced to its simplest form, we have the question of whether the intent to classify all malt extracts under paragraph 246 shall be defeated because such extract is imported in metallic drums.

In the New International Dictionary there is some little indication that the word “cask” as used in connection with taxation statutes has a broad significance.. We find it there stated that cask or package in the usage of the United States internal revenue is meant to include any portable vessel capable of being gauged, etc.

But, however this may be, the principle is well settled that meanings not most generally imputed to words and sometimes almost contrary thereto will be adopted by the courts when necessarj^ to execute legislative intent or to prevent its defeat. Lewis’s Sutherland’s -Statutory Construction (secs. 347, 348 and cases cited); Church of the Holy Trinity v. United States (143 U. S., 457); Silver v. Ladd (74 U. S., 219).

In this last case the court held, m view of the ascertained legislative intent, the words “single man” and “married man” should be construed to include an unmarried woman. '

The whole case may be summed up as follows:

The merchandise has been assessed as condensed malt extract. That is wrong.

The importers have claimed directly or by similitude under paragraph 246 and in the alternative under paragraph 385.

To classify the malt extract under paragraph 385 is not permissible because it is an enumerated article under paragraph 246.

The only obstacle to á classification under paragraph 246 is that 1 ‘ casks ” is not ordinarily used as meaning an iron drum but, from the fact that when first made casks were necessarily made of wood, is more commonly used as referring to casks of wood.

The iron drums here serve the identical purpose of wooden casks in that they are containers of malt extract for purposes of transportation and, because we think it may safely be assumed of common knowledge that 12 gallons is a greater quantity than that ordinarily purchased at one time by a consumer,.for purposes of repacking in smaller containers for the ultimate consumer’s use. To treat them as casks for the purposes of this case works no injustice to the Government, because the malt extract itself pays the duty provided therefor in paragraph 246 and the drums themselves are otherwise dutiable. In addition it results in 'a consistent and equal classification of the merchandise to which paragraph 246 is directed, namely, malt extract. It also executes what we find to be the congressional intent.

We hold, therefore, that this malt extract is directly classifiable as in casks under paragraph 246, and the judgment of the Board of General Appraisers is affirmed.