Von Bremen v. United States

168 F. 889, 1909 U.S. App. LEXIS 4516

• Court: Court of Appeals for the Second Circuit
• Decided: January 12, 1909
• Docket: Nos. 124, 125 (4,763, 4,764)
• Status: Published

Opinion

WARD, Circuit Judge.

The articles in question are truffles put up in tin packages. They were assessed as vegetables prepared or preserved, not specially provided for, under paragraph Ml (Act July 24, 1891, .c. 11, § 1, Schedule G, 30 Stat. 170 [IL S. Comp. St. 1901, p. 1619]), whereas the importers claim they should have been assessed under the same paragraph by similitude as mushrooms prepared or preserved in tins:

“Beans, pease, and mushrooms, prepared or preserved, in tins, jars, bottles, or similar packages, two and one-half cents per pound, including the weight of all tins, jars, and other immediate coverings; all vegetables, prepared or preserved, including pickles and sauces of all kinds, not specially provided for in this act, and fish paste or sauce, forty per centum ad valorem.”

The judge of the Circuit Court sustained the government’s classification.

The Supreme Court held in Robertson v. Salomon, 130 U. S. 412, 9 Sup. Ct. 559, 32 L. Ed. 995, and in Nix v. Hedden, 149 U. S. 304, 13 Sup. Ct. 881, 37 L. Ed. 745, that the word “vegetables” in the tariff acts must be given its ordinary rather than its botanical meaning. Therefore beans, which are seeds botanically, and tomatoes, which are fruits, were classed in accordance with the ordinary understanding as vegetables, usually served at dinner. Though truffles belong to the vegetable kingdom, they are used solely as a condiment in cooking and never separately served as a table dish, and are not included in the trade or in ordinary usage among vegetables. Therefore, not being specially provided for, they must be assessed by similitude, and we think that, so assessed, they are to be regarded as imported mushrooms, prepared or preserved in tins, they being solely used for flavoring purposes.

So the board thought and so did the judge of the Circuit Court, but he affirmed their decision solely because of the case of Park v. United States (C. C.) 61 Fed. 398, decided under the act of 1890 (Act Oct. 1, ÜS90, c. 1244, § 1, Schedule G, par. 287, 26 Stat. 586). This was in deference to the principle that, when words of an earlier statute which have been judicially considered are carried into a later statute, they must be taken to carry with them the judicial construction they have received. This consideration has given us pause; but we think that in the act of 1897 Congress must be taken to have used the word “vegetables” in accordance with the previous definition given by the Supreme Court in the cases cited supra, and if the definition of “truf-fies” in the Park Case comes into collision with them it must yield. It expresses neither the trade nor the common understanding, and we think should be subordinated to the unambiguous meaning of the word1 “vegetables” as determined by the prior decisions of the Supreme Court.

Judgment reversed.