91 F. 110 | 2d Cir. | 1898
The question on -this appeal is whether certain importations of antipyrine should have been classified for duty under paragraph 19 of the tariff act of October 1, 1890, or under paragraph 74 of that act. Paragraph 19 reads as follows: “All preparations of coal tar, not colors or dyes, not especially provided for in this act, twenty per cent, ad valorem.” Paragraph 74 reads as follows: “All medicinal preparations, including medicinal proprietary preparations, of which alcohol is a comx>onent part, or in the preparation of which alcohol is used, not especially provided for in this act, fifty cents per pound.” The case is one for the application of the familiar rule of tariff law that where a dutiable article falls within the terms of two enumerations, one of which is the more general and the other the more specific, the specific, and not the general, controls, and prescribes the duty. If one of the foregoing paragraphs had enumerated “all preparations of coal tar,” and the other “all medicinal preparations,” the question would be one of more difficulty than it now seems to be. But paragraph 19 enumerates an entire class of articles with the two exceptions of colors and dyes; while paragraph 74 enumerates a single variety of a class,—those medicinal preparations only in the preparation of which alcohol is used. The enumeration by class being general, and that by species being more definite, and the importations in question being exactly described by paragraph 74, that paragraph fixes the duty.
Our attention has been called to the case of U. S. v. Battle & Co. Chemists Corp., 4 C. C. A. 249, 54 Fed. 141, where paragraph 74 was somewhat considered by the court. In that case it was doubtful whether the importation was a medicinal preparation; and, if it was a medicinal preparation, it was prepared with or without the use of alcohol, according to the process preferred by the manufacturer. As it was also a “chemical compound,” within the enumeration of paragraph 76 of the act, the court concluded it to be dutiable under that provision. So far as the opinion intimates that paragraph 74 does not apply to medicinal preparations in which alcohol is not used as an ingredient without being broken up, we are unable to concur. Alcohol so used might’ not be a component part of the preparation; but paragraph 74 includes, not only medicinal preparations of which alcohol is a component part, but also those in the preparation of which it is used, and, as it seems to us, ex industria covers all medicinal preparations in the manufacture of which alcohol is used in any way.
In the present case the importers protested against the classification for duty adopted by the collector upon the ground that the article was dutiable under paragraph 74 of the act, or alternatively under paragraph 19. It is insisted for the government that, the importer having prevailed upon the ground that it should have been classified under paragraph 19, he cannot now be heard to insist upon the other ground of protest. There is no merit in this contention. Protests upon alternative grounds are proper, and in many cases the question as to which one of several tariff provisions should control in the classification of an importation is so doubtful that the importer is fully justified in leaving it to the courts. It would impose upon the importer a great hardship to compel him to decide this question himself, when he
