Ceballos v. United States

• Decision Date: 23 March 1906
• Docket Number: 66,267.
• Citation: 146 F. 380
• Parties: CEBALLOS v. UNITED STATES. LEE TAI LUNG v. SAME.
• Court: U.S. Court of Appeals — Second Circuit

146 F. 380

CEBALLOS v. UNITED STATES.

LEE TAI LUNG v. SAME.

Nos. 66, 267.

United States Court of Appeals, Second Circuit.

March 23, 1906

Curie Smith & Maxwell (W. Wickham Smith, of counsel), for the importer.

Henry A. Wise, Asst. U.S. Atty.

For decision below in the Ceballos Case, see 139 F. 705. In the Lee Tai Lung Case there was no opinion. The decisions covered by these appeals affirmed two decisions of the Board of United States General Appraisers, G.A. 5,701 (T.D. 25,359) and G.A. 6,221 (T.D. 26,888), which had affirmed the assessment of duty by the collector of customs at the port of New York. The opinion of the Board in the former case is set forth in the report of the Circuit Court decision in the Ceballos Case (C.C.) 139 F. 705, supra. The opinion of the Board in the latter case is as follows WAITE, General Appraiser. The importation in this case consists of five boxes of dried olives imported from China. They were assessed for duty at 15 cents per gallon, under the following provision in Tariff Act July 24, 1897, c. 11, Sec 1, Schedule G, par. 264, 30 Stat. 171 (U.S. Comp. St. 1901 p. 1651):

'(264) * * * Olives, green or prepared, in bottles, jars, or similar packages, twenty-five cents per gallon; in casks or otherwise than in bottles, jars, or similar packages, fifteen cents per gallon.'

There appears to be no dispute that the goods were correctly classified under paragraph 264, the only question raised relating to whether they should be assessed upon the basis of the gallon of liquid measure, containing 231 cubic inches which was used by the customs officers, or the gallon of dry measure, presumably that containing 268.8 cubic inches, which the importer claims should be applied. Additional information derived from the record in this case and from other sources confirms the opinion expressed by the board in the Ceballos Case (G.A. 5,701, T.D. 25,359), affirmed by the Circuit Court in Ceballos v. U.S. (C.C.) 139 F. 705 (T.D. 25,879), namely, that the customs gallon of the United States is the wine gallon of 231 cubic inches, if, indeed, that is not the only gallon in general use in the commerce of this country. While it appears that Congress, under its constitutional authority to 'fix the standard of weights and measure' (article 1, Sec. 8, Const.), has never in terms formulated a system of standard weights and measures for the United States, there has been practically a legislative adoption of certain standards in use, including the wine gallon of 231 cubic inches, but not, so far as we are informed, the dry gallon. The history of this legislation and the related facts are summarized in a compilation issued by the Bureau of Standards of the Department of Commerce and Labor, entitled 'Laws concerning the weights and measures of the United States,' from which we quote (page vii): 'At the time of the American Revolution the weights and measures in common use were of English origin. Most of them had been procured from time to time by the colonies from Great Britain, and although it was well known that there were variations in the weights and measures of the same denomination throughout the states, it was not until 1830 that the matter received attention from Congress. At this time an investigation of the weights and measures in use in the various custom houses was ordered by a resolution of the Senate. As a result of this investigation, the avoirdupois pound, the English yard, the wine gallon of 231 cubic inches, and bushel of 2,150.42 cubic inches were adopted by the Treasury Department, and the construction of copies of the standards thus established was immediately undertaken, in order to supply the custom houses with uniform weights and measures. In 1836 a joint resolution of Congress directed the Secretary of the Treasury to deliver to the governor of each state in the Union a complete set of all the weights and measures adopted as standards by the department, to the end that a uniform standard of weights and measures might be established throughout the United States. Nearly all of the states have been supplied with complete sets of standards, in accordance with the resolution mentioned, and in many cases they have been adopted by legislative action as the standards of the state. ' The...