State v. Vogl

• Decision Date: 16 July 1953
• Citation: 99 A.2d 66,149 Me. 99
• Parties: STATE v. VOGL et al.
• Court: Maine Supreme Court

Page 66

99 A.2d 66

149 Me. 99

STATE v. VOGL et al.

Supreme Judicial Court of Maine.

July 16, 1953.

Boyd L. Bailey and Myles P. Frye, Asst. Attys. Gen., for plaintiff.

Woodman, Skelton, Thompson & Chapman, Portland, for defendants.

Before MERRILL, C. J., THAXTER, FELLOWS, WILLIAMSON and TIRRELL, JJ., and MURRAY, A. R. J.

FELLOWS, Justice.

This is an action of debt brought by the State of Maine in the Superior Court for Kennebec County against the defendants, co-partners doing business under the firm name of Riviera Packing Company, to recover a tax on cases of sardines. The defendants filed a brief statement with the plea of general issue stating that no can used is designated a '15-ounce oval' and that the net contents of all oval cans packed by the defendants weighed one pound or more. The case comes to the Law Court on report. The Court is to determine the legal rights and to render final judgment.

The issue is agreed to be this: Are the one pound cans packed by the defendants in 39,469 cases '15-ounce oval cans' within the meaning of subsection III of Section 245 of Chapter 2 of the Public Laws of Maine 1951? If it be determined by the Court that the cans packed by the defendants are '15-ounce oval cans' within such meaning, the defendants are subject to tax, and judgment shall be for the State in the sum of $9867.25 with interest and costs. If it is determined that the cans are not '15-ounce oval cans' within such meaning, judgment shall be for the defendants with costs.

The principal facts agreed upon are that the defendants, Arnold Vogl, Edith Vogl, and Erna Fisher, are residents of Eastport, in the County of Washington, and are engaged in business as packers of sardines for sale as copartners under the firm name of Riviera Packing Company, and were engaged in such business during the period February 8, 1951 through October 4, 1952, both dates inclusive.

Ernest H. Johnson was and now is, the State Tax Assessor, and charged with the duty of administering the provisions of Sections 244-254 of Chapter 14, R.S., as enacted by Chapter 2 of the Public Laws of 1951, entitled 'An Act to Provide for a Self-Imposed Tax on Sardines for an Industry Development Fund.'

During the period February 8, 1951 through October 4, 1952, the defendants packed for sale 39,469 cases of sardines of 48 cans per cases, in oval cans. The oval cans are flat cans, so-called, oval in shape, of approximately the following dimensions 6 1/2 inches long at their longest part, 4 1/2 inches wide as their widest part and 1 1/2 inches deep. The oval cans are manufactured by the American Can Company which produces only one size can of these dimensions, which were billed by American Can Company as '1# ovals.' The symbol # means, according to Webster's New International Dictionary, Second Edition, 'pound', and the cans are sold by the American Can Company as one pound cans. The same size, shape and kind of can is used for a 14-ounce, 15-ounce or 16-ounce or more, pack.

Within the sardine trade, at the time of enactment of Chapter 2, P.L.1951 and thereafter, these cans have been termed 'large ovals', '1-pound ovals', or 'no. 1 ovals'. There has been no oval can of a larger size used to pack sardines. The next smaller size oval can used for packing sardines was 6 inches by 3 5/8 inches by 1 1/4 inches, and had a capacity of approximately one-half the oval cans in question here. These smaller cans are exempt from the tax. The defendant purchased the oval cans in issue from the American Can Company. The net weight of a single oval can when filled with sardines and packing media, will vary with the size of the fish packed, and the method of processing the fish before going into the cans. For example, the same can with light weight herring may yield only a net weight of 14 ounces, while a can filled with medium sized herring will produce a net weight of 16 ounces or over. The weight of the contents of a can will not be less than shown by the labels placed upon cans. For example, a light can may be labeled 14 ounces with contents of actual weight of 14.2 ounces, a heavier can 15 ounces or 16 ounces with contents of actual weight of 15.1 ounces and 16.3 ounces respectively. Or, as is true of part of the defendant's pack, a can may be labeled 15 ounces and actually contain over 16 ounces.

There are many types of containers used in the packing of sardines, such as: 1/4 size, 1/2 pound ovals, 3/4 size, 1 pound, 5 ounces or baby talls, and No. 1 or large talls. The method of processing and the ingredients used in the packing vary greatly. Thus, the contents of a 1/4 size can may be labeled 3 1/4 ounces rather than 4 ounces; that of a 3/4 size may be labeled 10 ounces rather than 12; or there may be different weights. And a 1# oval may be labeled 14 ounces, 15 ounces or 16 ounces, depending upon its contents.

The net weight of the above mentioned oval cans packed by the defendants was 16 ounces each or over. However, part of the total number of cases of oval cans noted above, were labeled 15 ounces by the defendants. This was done for reasons of economy, as the defendants were using up labels which they had in stock from previous years and private labels for export firm customers for use in the export trade. When old labels were used up, new labels were adopted designating the quantity of the contents as 'Net Content 1 lb.'

The defendants paid no tax on the 39,469 cases of oval cans under the provisions of Chapter 2 of the Public Laws of 1951.

On October 15, 1952, Ernest H. Johnson, State Tax Assessor, assessed a tax in the sum of $9,867.25 the 39,469 cases of oval cans, packed for sale by the defendants, for the period of February 8, 1951, through October 4, 1952, inclusive. This assessment was made by the State Tax Assessor acting under the provisions of Chapter 2, P.L.1951, and on the basis that the cases of oval cans consisted of '48 cans of 15-ounce oval cans' as specified in Subsection III of Section 245, Chapter 2, P.L.1951. The assessment was certified to the defendants on October 17, 1952, and demand made for payment.

The defendants have maintained that the pack of oval cans were not subject to tax under the statute because they claim they were 1 pound ovals and not 15-ounce oval cans, and therefore have not paid assessment or any part thereof.

The Sardine Tax Law, Sections 244-254, inclusive, Chapter 14, R.S., added by Chapter 2, P.L.1951, requires the State Tax Assessor to assess a tax of $.25 a case upon the privilege of packing sardines. The statute defines 'case' of sardines so that only three described kinds are taxable: Cases of 'one-quarter size cans', cases of 'three-quarter size cans', and cases of '15-ounce oval cans'.

The sole issue is whether the cans used were '15-ounce oval cans' within the meaning of Section 245, Chapter 14, R.S.1944, enacted as Chapter 2, Public Laws 1951. There is only one size of oval cans in which it is possible to pack 15 ounces of contents and that is the size the defendants used. But the defendants claim they have avoided tax liability by putting into these cans an extra ounce of fish.

The pertinent statutory sections, all added to Chapter 14, R.S.1944, by Chapter 2, P.L.1951 are:

Sec. 246: '* * * An excise tax of 25cents per case is hereby levied and imposed upon the privilege of packing sardines * * *.'

Sec. 245: '* * * A 'case' of sardines shall mean:

'I. 100 one-quarter size cans of sardines packed in oil, mustard or tomato sauce, or any other packing medium;

'II. 48 three-quarter size cans packed in tomato or mustard sauce;

'III. 48 cans of 15-ounce oval cans packed in mustard or tomato sauce, or any other packing medium.' (Italics supplied.)

To the agreed statement of facts, signed by counsel for the parties, are annexed the invoices, or contracts, with, and letters from, the American Can Company, manufacturers of practically all the cans used by the Maine Sardine Industry, and a statement from the U. S. Department of Interior, which exhibits show that the defendant purchased of American Can Company '#1 Oval Open Top--seamless; 607 X 406 X 108--for Sea Herring, mustard or tomato pack.' The American Can Company manufacturers only one size oval can approximately 6 1/2 X 4 1/2 X 1 1/2 inches. The American Can Company's letter, which was also made a part of the agreed statement, indicates that within the sardine industry, 'large ovals', '1-pound ovals' and '15-ounce ovals' are used interchangeably.

The letter from the Department of the Interior, made a part of the agreed statement, says: 'The oval can which is used in the sardine industry in both Maine and California has a calculated capacity of approximately 15-ounces, and is generally known in the trade as the 'No. 1-oval' or the 'One-pound oval'. The phrase '15-ounces net' is used in our statistical date to indicate the approximate net weight of the contents of a can rather than to designate the can size. Since the statute referred to in your letter uses the terms '100 one-quarter size cans' and '48 three-quarter size cans' in defining 'case', it would appear that the term '48 one-pound oval cans' should also have been used as a matter of consistency, instead of '48 cans of 15-ounce oval cans.' Items I and II define 'case' in terms of can size whereas Item III defines 'case' in terms of can and its contents.'

According to a list published by the National Canners Association in its booklet 'Modern Labels for Canned Foods, (October, 1951)' made a part of agreed statement, the 'No. 1-oval can' has a capacity of approximately 15-ounces for sardine products. However, it is not required that exactly this weight of contents be used. This is indicated from the following excerpt which is taken from the above-named booklet.

'Federal and various State laws require that a statement of net contents be given on the label. None of these laws specify what the weights shall be. There is a general requirement that the can be as full as...