Meyer & Lange v. United States

124 F. 293 | U.S. Circuit Court for the District of Southern New York | 1900

LACOMBE, Circuit Judge

(orally). Any suggestion that the 40 per cent, clause of paragraph 258 applies is disposed of by the decision of the Circuit Court of Appeals in the Rosenstein Case, 39 C. C. A.' 122, 98 Fed. 420. As to the other proposition — that is, whether the articles should pay duty as “fish in packages containing less than one-half barrel, and not specially provided for,” or under paragraph 261, as “fish, * * * salted, pickled, * * * or otherwise prepared for preservation, not specially provided for” — Í am free to say that I am unable to determine between those two sectio.ns as to which is more specific. I find no satisfactory ground upon which to differentiate the two. Inásmuch as both of them end, “not specially provided for in this act,” there is no help such as we would get from the absence of that clause if it were omitted. I am forced to the conclusion that this is one of the few cases in the act where two or more rates of duty are, by the language used by Congress, made applicable to the same imported article. In such case, from the beginning of time, it used to be that the lower of such rates should be applied, until the advent of the last tariff act, by which it is required that the higher of the two rates should be applied. I do not know which is the higher of these two. I presume it is paragraph 261 in this case.

Mr. Comstock: I presume otherwise, but I cannot inform you specifically on that point now.

The Court: That being so, the decision of the Board of General Appraisers, which fixed it at 40 per cent., is reversed, and the court directs that the assessment be under whichever of the two paragraphs, 258 and 261, fixes the higher rate.