United States v. Shing Shun & Co.

• Decision Date: 13 August 1909
• Docket Number: 13,786.
• Citation: 173 F. 844
• Court: U.S. District Court — Northern District of California
• Parties: UNITED STATES v. SHING SHUN & CO. et al.

173 F. 844

UNITED STATES v. SHING SHUN & CO. et al.

No. 13,786.

United States Circuit Court, N.D. California.

August 13, 1909

Robert T. Devlin, U.S. Atty., and George Clark, Asst. U.S. Atty.

Stanley Jackson, for respondents.

VAN FLEET, District Judge.

The question presented in this case is as to the proper classification for duty under Tariff Act July 24, 1897, c 11, 30 Stat. 151 (U.S. Comp. St. 1901, p. 1626), of certain importations of olives entered at the port of San Francisco. The pertinent provision of the act is paragraph 264, Schedule G, which, so far as it relates to olives, reads:

'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.'

The olives involved were contained in earthen jars of a capacity of about 10 gallons each. They were returned by the appraiser as olives 'in jars'; and the collector, under the foregoing provision of the act, assessed them at the rate of 25 cents per gallon. The importers contended that the olives were dutiable at the lesser rate of 15 cents per gallon, and protested to the Board of General Appraisers. The latter sustained this contention, and reversed the action of the collector; and the government has appealed.

It appears that the construction put upon the provision in question by the Board of General Appraisers has not been uniform. In G.A. 4,207 (T.D. 19, 625), rendered June 30 1898, the board had the same question presented for consideration, and in that case it was said:

'The merchandise consists of green olives in earthenware jars containing from 4 to 10 gallons each. They were assessed for duty at 25 cents per gallon under paragraph 264 of the act of July, 1897, and are claimed to be dutiable at 15 cents per gallon under the same paragraph. The pertinent portion of paragraph 264 reads: * * * The appellants contend that the usual capacity of bottles and jars containing olives is about one quart, and that these large jars more closely resemble casks and similar packages. Paragraph 264, however, makes no restriction nor limitation as to size. We find that the goods are olives in jars, and upon this finding the decision of the collector must be affirmed.'

In a later case (T.D. 25, 805, Abstract 3,908), where the same commodity was involved, and the question was presented upon precisely similar facts and a like ruling of the collector, the board, without referring to its previous ruling, in effect overruled it. It is there said:

'Since it is not disputed that the jars each contained 10 gallons, we are of the opinion that the question involved falls within the ruling in G.A. 5,448 (T.D. 24,733), wherein the board, in passing upon the question of the rate of duty assessable on olives packed in tin cans containing from 5 to 15 gallons said: 'A reading of paragraph 264 leads to the conclusion that Congress had in mind two styles of packing for olives, one for retail trade in small packages for table or family use, and the other for wholesale trade in large packages. We are of opinion that a proper construction of the paragraph is that the provision for 'bottles, jars and similar packages' means packages handled and used by people who deal in or use olives in packages in the form in which they are sold in glass bottles or jars.' We accord with this view, and it is of no consequence whether the covering be tin or earthenware, so long as the quantity is large enough to justify the presumption that it is such as is handled by the wholesale trade. We sustain the protest, and overrule the decision of the collector.'

The ruling in the present case (T.D. 26,559, Abstract 7,138) is expressly put upon the...