La Manna v. United States , 67 F. 233 ( 1895 )

PER CURIAM.

In October, 1891, the appellants imported certain sardines in boxes, which were classified and assessed for duty by the collector of the port of'New York at 2{- cents per each box. They insisted by their protest that the sardines should have been subjected to duty at 40 per centum ad valorem. The board of general appraisers affirmed the action of the collector, and upon an appeal to the circuit court that court affirmed the decision of the board 'of appraisers. From that decision the present appeal was taken.

The case is controlled by the provision of the tariff act of October 1, 1890 (Schedule G-, par. 291), which enacts that duties shall be levied as follows upon “anchovies and sardines, packed in oil or otherwise, in tin boxes measuring not more than five inches long, four inches wide and three and one-half inches deep, ten cents per whole box; in half boxes, measuring not more than five inches long, four inches wide, and one and five-eights inches deep, five cents each; in quarter boxes, measuring not more than four and three-fourths inches long, three and one-half inches wide, and one and one-fourth inches deep, two and one-half cents each; when imported in any other form, forty per centum ad valorem.” It appears by the record that the boxes imported by the appellants were 3$ inches long, 2-} inches wide, and -f of an inch deep. It also appears that, at the date of the enactment of the tariff provision, “whole boxes,” “half boxes,” “quarter boxes,” and “eighth boxes” were terms of commercial designation as applied to sardines in boxes, and that boxes like those imported by the appellants were known in the trade as “eighth boxes,” and would not be bought qnd sold, or commercially recognized, as “quarter boxes.” The capacity of these boxes was about 7£ cubic inches, while that of whole boxes, half boxes, and quarter boxes is respectively about 70, 32£, and 20 cubic inches. The theory adopted by the collector, by the board of general appraisers, and by the circuit court was that, because the boxes in controversy measured “not more” than the dimensions specified in the clause subjecting quarter boxes to duty at 2£ cents each, they were described by that clause. We cannot assent to this proposition. Upon that reasoning they are as accurately described in' the preceding clauses of the paragraph, and are subject to duty at 10 cents per box and at 5 cents per box, as well as to duty at 2-J cents per. box. The boxes measured “not more” than those described in the preceding clauses. Manifestly, it is the intention of the provision to graduate the duty according to the size of the boxes, and subject the smaller sizes to the lower specific duty; and it is. not supposable that congress intended to impose upon smaller boxes than the half or quarter sizes the higher duty of the largest' size. Consequently, boxes like, those in controversy, although “not more” than the size of the largest boxes, as well as “not more” than the size of the half and quarter boxes, if dutiable as belonging to any one of these three classes, would more naturally fall within the category of the last. They do not, however, fall within that category, because they do not correctly fit the description of this class. They are not “quarter boxes,”—a term of commercial designation, which, cannot be disregarded without doing violence to the cardinal rule in the construction of tariff acts. It follows that, if they are described by the provision at all, they are described by the last clause, and are subject to the ad valorem duty. We conclude that sardines packed in a tin box of a larger size than the ordinary “whole box,” if there are such, as well as in boxes smaller than quarter boxes, are intended to be dutiable at 40 per centum ad valorem. The judgment of the circuit court is accordingly reversed.