United States v. Austin, Nichols & Co.

• Decision Date: 25 February 1903
• Docket Number: 157-160.
• Citation: 121 F. 729
• Parties: UNITED STATES v. AUSTIN, NICHOLS & CO. SAME v. LEGGETT et al. SAME v. SCHERING & GLATZ. SAME v. BOGLE & SCOTT.
• Court: U.S. Court of Appeals — Second Circuit

121 F. 729

UNITED STATES v. AUSTIN, NICHOLS & CO. SAME v. LEGGETT et al. SAME v. SCHERING & GLATZ. SAME v. BOGLE & SCOTT.

Nos. 157-160.

United States Court of Appeals, Second Circuit.

February 25, 1903

Henry L. Burnett, U.S. Atty., and Charles Duane Baker, Asst. U.S atty.

Albert Comstock and Everett Brown, for appellees.

Before WALLACE and COXE, Circuit Judges.

Coxe Circuit Judge.

When these appeals were first presented to this court the only question argued was whether bottles holding not more than one pint, and imported filled with merchandise at ad valorem rates, are dutiable as part of the value of their contents under section 19 of the customs administrative act of June 10, 1890, 26 Stat. 139 (U.S. Comp. St. 1901, p. 1924). The question was certified to the Supreme Court in the following words:

'Should the value of the bottles filled with ad valorem goods be added to the dutiable value of their contents, under section 19 of the customs administrative act of 1890, to make up the dutiable value of the imported merchandise?'

The question was answered by the Supreme Court in the negative.

United States v. Nichols, 186 U.S. 298, 22 Sup.Ct. 918, 46 L.Ed. 1173.

The appeals are now presented upon a single proposition not heretofore brought to the attention of this court, namely that the bottles in question should have been assessed under paragraph 88 of the tariff act of 1894 (Act Aug. 27, 1894, c. 349), as bottles holding not more than one pint irrespective of the nature of their contents.

Paragraph 88 is as follows:

'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-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. 508, 513.

The Supreme Court say:

'It will be observed that by paragraph 88 a duty was imposed upon bottles holding more than one pint whether filled or unfilled, but upon vials holding less than one pint there was, probably, by mistake, no provision that they should pay duty if filled.'

In other words, the court decided that the paragraph did not impose a duty upon bottles holding not more than one pint if the bottles were filled when imported. That the bottles in controversy are directly within this decision is admitted. Counsel have stipulated in writing that 'the bottles in question hold not more than one pint and were imported filled with merchandise which was liable to ad valorem duties, and were assessed for duty at the respective ad valorem rates applicable to their contents as a part of the value of the same.'

The present position of the appellant is not made entirely clear from the briefs submitted, but we assume it to be that the bottles in question are dutiable under the provision of paragraph 88 for a duty of 1 1/8 cents per pound upon 'vials holding not more than one pint and not less than one quarter of a pint.'

The further suggestion is made that the last clause of paragraph 88, providing for an ad valorem duty of 40 per centum, is applicable. It is true that a vial is a small glass bottle and, if the subdivision quoted had contained the words 'filled or unfilled,' found in the preceding clause, there would probably be little difficulty in applying it to the merchandise in controversy, there being no evidence of commercial designation as in the Grace Case, infra. The difficulty with this contention is that it leaves out of view the decision of the Supreme Court which construes the clause quoted precisely as if the words 'when not filled' were added thereto. So that paragraph 88, after specifically enumerating vials holding a pint or...