United States v. Zucca & Co.

S.D. New York

United States v. Zucca & Co.

175 F. 578, 1909 U.S. App. LEXIS 5763

CourtDistrict Court, S.D. New York

DecidedNovember 9, 1909

DocketNos. 4,806, 4,807, 4,819

StatusPublished

This text of 175 F. 578 (United States v. Zucca & Co.) is published on Counsel Stack Legal Research, covering District Court, S.D. New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

United States v. Zucca & Co., 175 F. 578, 1909 U.S. App. LEXIS 5763 (S.D.N.Y. 1909).

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Opinion

MARTIN, District Judge.

The articles in question are ripe olives, sometimes called “black olives,” and are imported in casks. Paragraph 264 of the act of 1897 (Act July 24, 1897, c. 11, § 1, Schedule G, 30 Stat. 171 [U. S. Comp. St. 1901, p. 1651]) provides for “olives, green or prepared, * * * in casks, * * * 15 cents per gallon.” The collector assessed duty upon the importations in question under that provision. The importers claim free entry under paragraph 559 of said act, which relates to “fruits or berries, green, ripe, or dried, and fruits in brine, not specially provided for in this act.”

It is conceded that these alives are not green; but it is claimed by the government that they are prepared, and that the preparation is such that they should be classified the same as are green olives. The evidence before the Board of Appraisers was that these olives were grown in Greece and Turkey; that there had been no preparation of the olives to fit them for eating; and that they were immersed in sail and water for the purpose of preserving them from decay in shipment. Considerable evidence has been taken on notice by the importers, since the decision of the Board, in which the witnesses explain more fully the characteristics of the olives raised in Greece and Turkey. This additional evidence on the part of the importers confirms the testimony before the Board that the olives in question had received no preparation, except the application of salt and water. They testify that the ripe olive may be eaten in its natural condition, although it is a little bitter in taste, and that the brine tempers the bitterness a “little.”

[580]*580The government has introduced several affidavits taken ex parte, without notice and without agreement. These affidavits are objected •to on the part of the importers. In White v. United States (C. C.) 154 Fed. 175, T. D. 28,147, it was held that ex parte affidavits cannot be introduced before the referee of the circuit court in this class of cases. Applying the doctrine of that case to the case at bar, it would exclude these affidavits. Under this holding there is no evidence before the court except that adduced by the importer.

I know of no case where the courts have held that the application of salt and water alone constitutes a preparation, nor do I believe that such was the intent of Congress in using that language.

Counsel for the government stated on argument that the olive industry in California will be seriously affected by the ruling of the Board in this case, and he contends that the affidavits above referred to will shed light upon the question before the court. I have read these affidavits with care, notwithstanding I hold that they are not admissible, and to my mind they do not change the facts. They simply show that the olives grown in California, when permitted to ripen, are so extremely bitter that they cannot be eaten, and an elaborate preparation is necessary to make them edible. There is no evidence even tending to show that such is true with respect to the olives imported. Not one of the affiants claims to know that the preparation outlined by him is necessary or is followed as to the foreign-grown olive.

As the new tariff law of 1909 (Act Aug. 5, 1909, c. 6, § 1, Schedule G, par. 275, 36 Stat. 38 [U. S. Comp. St. Supp. 1909, p. 690]), puts all olives on the same footing, it is unnecessary to further discuss the question, as any decision now made in the case at bar can only affect pending cases.

The decision of the Board is affirmed.

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MARTIN, District Judge.

The articles in question are ripe olives, sometimes called “black olives,” and are imported in casks. Paragraph 264 of the act of 1897 (Act July 24, 1897, c. 11, § 1, Schedule G, 30 Stat. 171 [U. S. Comp. St. 1901, p. 1651]) provides for “olives, green or prepared, * * * in casks, * * * 15 cents per gallon.” The collector assessed duty upon the importations in question under that provision. The importers claim free entry under paragraph 559 of said act, which relates to “fruits or berries, green, ripe, or dried, and fruits in brine, not specially provided for in this act.”

It is conceded that these alives are not green; but it is claimed by the government that they are prepared, and that the preparation is such that they should be classified the same as are green olives. The evidence before the Board of Appraisers was that these olives were grown in Greece and Turkey; that there had been no preparation of the olives to fit them for eating; and that they were immersed in sail and water for the purpose of preserving them from decay in shipment. Considerable evidence has been taken on notice by the importers, since the decision of the Board, in which the witnesses explain more fully the characteristics of the olives raised in Greece and Turkey. This additional evidence on the part of the importers confirms the testimony before the Board that the olives in question had received no preparation, except the application of salt and water. They testify that the ripe olive may be eaten in its natural condition, although it is a little bitter in taste, and that the brine tempers the bitterness a “little.”

[580]*580The government has introduced several affidavits taken ex parte, without notice and without agreement. These affidavits are objected •to on the part of the importers. In White v. United States (C. C.) 154 Fed. 175, T. D. 28,147, it was held that ex parte affidavits cannot be introduced before the referee of the circuit court in this class of cases. Applying the doctrine of that case to the case at bar, it would exclude these affidavits. Under this holding there is no evidence before the court except that adduced by the importer.

I know of no case where the courts have held that the application of salt and water alone constitutes a preparation, nor do I believe that such was the intent of Congress in using that language.

Counsel for the government stated on argument that the olive industry in California will be seriously affected by the ruling of the Board in this case, and he contends that the affidavits above referred to will shed light upon the question before the court. I have read these affidavits with care, notwithstanding I hold that they are not admissible, and to my mind they do not change the facts. They simply show that the olives grown in California, when permitted to ripen, are so extremely bitter that they cannot be eaten, and an elaborate preparation is necessary to make them edible. There is no evidence even tending to show that such is true with respect to the olives imported. Not one of the affiants claims to know that the preparation outlined by him is necessary or is followed as to the foreign-grown olive.

As the new tariff law of 1909 (Act Aug. 5, 1909, c. 6, § 1, Schedule G, par. 275, 36 Stat. 38 [U. S. Comp. St. Supp. 1909, p. 690]), puts all olives on the same footing, it is unnecessary to further discuss the question, as any decision now made in the case at bar can only affect pending cases.

The decision of the Board is affirmed.

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175 F. 578, 1909 U.S. App. LEXIS 5763, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-zucca-co-nysd-1909.

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