Grace v. Collector of Customs of Port and District of San Francisco

• Decision Date: 08 February 1897
• Docket Number: 321.
• Citation: 79 F. 315
• Parties: GRACE et al. v. COLLECTOR OF CUSTOMS OF PORT AND DISTRICT OF SAN FRANCISCO.
• Court: U.S. Court of Appeals — Ninth Circuit

79 F. 315

GRACE et al. v. COLLECTOR OF CUSTOMS OF PORT AND DISTRICT OF SAN FRANCISCO.

No. 321.

United States Court of Appeals, Ninth Circuit.

February 8, 1897

The only question before the court upon this appeal involves the interpretation of paragraph 88 of the Wilson tariff act of August 28, 1894. It appears from the record that in the month of May, 1895, appellants imported into the port of San Francisco 50 cases, containing in all 14,400 bottles invoiced as 'empty pint wine bottles,' which on June 28, 1895, the local appraisers returned as 'colored glass bottles holding not more than one pint and not less than one-quarter of a pint. ' On July 9, 1895, the collector liquidated the duty thereon at the rate of 1 1/8 cents per pound, being the rate provided for under the subdivisions of paragraph 88, Schedule B, of the tariff act of August 28 1894, 'for vials holding not more than one pint and not less than one-quarter of a pint. ' The duty so levied was paid by appellants, who thereafter protested against said classification and liquidation, as follows: 'The grounds of our objection are that paragraph 88 levies a duty of one and one-eighth cents per pound only on vials holding not more than one pint and not less than one-quarter of a pint, other than vials which are a particular kind of glass bottle used by druggists and chemists. We therefore claim that the bottles under protest are dutiable under paragraph 88 * * * as 'other * * * colored glassware, at the rate of forty per cent. ad valorem,' or as 'other * * * colored * * * bottle glassware not specially provided for in said act, at the rate of three-quarters of one cent per pound.' On September 5, 1895, the board of United States general appraisers rendered its decision denying said protest, from which decision an appeal was duly taken to the circuit court for this circuit. On June 18, 1896, the circuit court affirmed the decision of the board of general appraisers. Among other things, the court found that 'said glassware consists of what is known commercially as 'hock 'bottles.' The articles are known as 'bottles,' and not as 'vials,' and the term 'bottle' is a general name applied to glass vessels while the term 'vial' is more generally understood to be a kind of bottle-- a small bottle-- used principally by druggists and chemists.' And from this finding of fact the court found, as a conclusion of law, that 'the merchandise in question was dutiable upon its importation at the rate of one and one-eighth cents per pound, under paragraph 88 of the act of August 28, 1894.' In the arguments of counsel, the attention of the court is directed to the similarity, or want of similarity, between paragraphs 103 and 104 of the McKinley tariff act of October 1, 1890, and paragraph 88 of the Wilson tariff act. For convenient reference, these acts are here placed in parallel columns:

McKinley Act.

'Glass and glassware:

'103. Green and colored, molded or pressed, and flint and lime glass bottles holding more than one pint, and demijohns and carboys (covered or uncovered), and other molded or pressed green and colored and flint or lime bottle glassware, not specially provided for in this act, one cent per pound. Green and colored, molded or pressed, and flint and lime glass bottles, and vials holding not more than one pint and not less than one-quarter of a pint, one and one-half cents per pound; if holding less than one-fourth of a pint, fifty cents per gross.

'104. All articles enumerated in the proceding paragraph if filled, and not otherwise provided for in this act and the contents are subject to an ad valorem rate of duty, or to a rate of duty based upon the value, the value of such bottles, vials or other vessels shall be added to the value of the contents for the ascertainment of the dutiable value of the latter; but if filled and not otherwise provided for in this act, and the contents are not subject to an ad valorem rate of duty, or to rate of duty based on the value, or are free of duty, such bottles, vials or other vessels shall pay, in addition to the duty, if any, on their contents, the rates of duty prescribed in the preceding paragraph: provided, that no article manufactured from glass described in the preceding paragraph shall pay a less rate of duty than forty per centum ad valorem.'

(26 Stat. 571.)

Wilson Act.

'Glass and glassware:

'88. Green and colored, molded or pressed, and flint and lime glass bottles holding more than one pint, and demijohns and carboys, covered or uncovered, whether filled or unfilled, and whether their contents be dutiable or free, and other molded or pressed green and colored and flint or lime bottle glassware, not specially provided for in this act, three-fourths of one cent per pound; and vials holding not more than one pint and not less than one-quarter of a pint, one and one-eighth cents per pound; if holding less than one-fourth of a pint, forty cents per gross; all other plain, green and colored, molded or pressed, and flint lime and glassware, forty per centum ad valorem.'

(28 Stat. 513.)

Charles A. Garter and J. F. Evans, for appellants.

Samuel Knight, Asst. U.S. Atty., for appellee.

Before GILBERT and ROSS, Circuit Judges, and HAWLEY, District Judge.

HAWLEY District Judge (after stating the facts as above).

Paragraph 88 of the Wilson tariff act, considered as a whole, without reference to paragraphs 103 and 104 in the McKinley tariff act, is susceptible of but one construction. It will be observed that it is divided into three distinct and separate subdivisions, each of which, in the language used, is plain, clear, and definite, and entirely free from ambiguity, doubt, or uncertainty. To interpret it, independent of other acts, would simply be to copy it. It would be construed to mean just what it says. The duty on bottle glassware mentioned in the first subdivision is 'three-fourths of one cent per pound. ' The duty, in the second subdivision, on vials 'holding not more than one pint and not less than one-fourth of a pint,' is 'one and one-eighth cents per pound,' and, if holding less than one-fourth of a pint, 'forty cents per gross.' The third subdivision provides that all other articles of glassware, viz. 'all other plain, green and colored, molded or pressed, and flint, lime and glassware,' shall pay a duty of 'forty cents per gross.' The third subdivision provides that all other articles of glassware, viz. 'all other plain, green and colored, molded or pressed, and flint, lime and glassware,' shall pay a duty of 'forty per centum ad valorem.' The articles of glassware upon which the duties were levied were invoiced as empty pint wine bottles, and consisted of what are commercially known as 'hock bottles.' It is evident that duties thereon could not be levied under either the first or second subdivision, and should be levied under the 'catch-all' clause in the third subdivision. This is the interpretation that should be given to paragraph 88 of the Wilson tariff act, considered independently of the provisions of paragraphs 103 and 104 of the McKinley tariff act.

But it is contended by appellee that paragraph 88 of the Wilson act is practically a condensation and re-enactment of paragraphs 103 and 104 of the McKinley act, with a reduction of duties and a slight change of verbiage. Viewed in this light, it is claimed that paragraph 88 of the Wilson act provides for the same kind of glass bottles, holding more than a pint, which with other glassware, as set forth in paragraph 103, are dutiable at three-fourths of a cent a pound; that the foregoing kinds of glass bottles and other glassware, with vials of the capacity mentioned, are, under the Wilson act, dutiable at 1 1/8 cents a pound; that the term 'vials,' in paragraph 88, should be taken in connection with the glass bottles and other bottle glassware of the preceding clause (viz. the first subdivision); that it would then read identically the same as the corresponding part of paragraph 103, except as to the rate of duty imposed; that the province of the conjunction 'and,' preceding the term 'vials,' in paragraph 88, is to connect the two clauses together as one. We are of opinion that paragraph 88, if it is to be construed with reference to the former act, is not fairly susceptible of this interpretation. By a reference to the McKinley tariff act, it will be observed that paragraph 103 is divided into two subdivisions only; that the first subdivision ends with providing for the same articles of glassware as the first subdivision in paragraph 88; that the second subdivision of paragraph 103 commences with the words 'green and colored, molded or pressed, and flint and lime glass bottles' (which are at the commencement of the first subdivision), and then proceeds 'and vials,' etc., thus making its construction clear and plain, viz.: Glass bottles holding more than one pint are dutiable at one cent per pound; glass bottles and vials holding not more than one pint, and not less than one-fourth of a pint, 'one and one-half cents per pound,' and, if holding less than one-quarter of a pint, 'fifty cents per gross.' To give to paragraph 88 the construction claimed for it by appellee, we would have to insert into the second subdivision of paragraph 88, before the words 'and vials,' the words omitted from it, and found in paragraph 103, namely, 'green and colored, molded or pressed, and lime glass bottles,' or, at least, the words 'glass bottles.' This we are not authorized to do. It is our duty to interpret, not to make, the law. Words should not be interpreted into a statute, in order that it may include a...