United States v. Strohmeyer & Arpe Co. , 167 F. 533 ( 1909 )

COXE, Circuit Judge.

The merchandise in controversy is cauliflower trimmed, washed, and packed in brine for preservation during transportation. The collector assessed duty at the rate of 40 per cent, ad valorem under Tariff Act July 24, 1897, c. 11, § 1, Schedule G, par. 241, 30 Stat. 170 (U. S. Comp. St. 1901, p. 1649), which provides for “all vegetables, prepared or preserved.” The importer contends that it should have been classified under paragraph 257, 30 Stat. 171 (U. S. Comp. St. 1901, p. 1650), which provides an ad valorem duty of 25 per cent, for “vegetables in their natural state.”

The Board and the Circuit Court concur in the opinion that the importers’ contention is well founded, and we see no reason for reaching a different conclitsion. The 'question, briefly stated, is whether the imported cauliflower, coucededly a vegetable, when it arrived at the port of entry was in its natural state or prepared or preserved.

The tariff act, like all statutes, must be given a common-sense construction. If paragraph 257 be construed literally it would result in the prohibition of the importation of all vegetables, for the moment a vegetable is cut from its growing stem or taken from the ground it ceases, in this restricted sense, to be in its natural state. If an exceedingly strict construction were adopted, it would exclude vegetables which have been washed or trimmed or from which decayed or superfluous leaves or stems have been removed; for these too, strictly speaking, are not in their natural state. Of course such a construction is absurd and no one contends to the contrary. The statute must be so interpreted as to give force to the evident intent of Congress to permit vegetables, as they are known and dealt with in this country, as they come from the farm and garden, to enter by paying a duty of 25 per cent.

The higher duty imposed by paragraph 241 indicates that it was intended to apply to those vegetables which have been advanced in value by being prepared or preserved. It was not seriously disputed at the argument that the contention of the government would render paragraph 257 nugatory, except as to vegetables coming here from Canada, Mexico, and possibly some of the West Indian Islands, for the reason that, unless some artificial means were adopted to prevent it, the vegetables would decay on the voyage. It was suggested that where refrigerating ships and railway cars were available decay might be prevented. The expense of such transportation would probably be too great for practical application. However, if a vegetable may be kept in its natural state by an elaborate system of cold storage, it is not entirely plain why a like result may not be produced by immersing h iu weak brine. We think the cauliflower in question was clearly in its natural state before being placed iu the brine, that this was done to keep it in its natural state, and that when taken out of the brine and washed it was still in its natural state. Any doubt upon this question was removed by an inspection of the exhibits, which conceded!}" represent the imported merchandise.

The facts are so clearly and fully stated in the opinions below that it is wholly unnecessary to restate them in extenso. The testimony is overwhelmingly to the effect that the merchandise is placed in the weak brine to preserve it during transportation. This is precisely what is done in this country when it is desired to prevent cauliflower from decaying. We cannot believe that this effort to keep the cauliflower iu ‘‘'the way the farmer brings them to you” can be regarded as having a directly opposite effect, changing them from their natural state to a prepared or preserved slate.

The decision is affirmed.

* For other cases see same topic & § number in Dec. & Am. Digs. 1907 to Sate, & Rep’r InSexes