Dewey v. United States

DISSENTING OPINION

Bland, Judge:

I think the judgment of the trial court should be affirmed.

The decision of the majority with which I am not in accord is supported by no authority cited or discussed. The dictionary definitions of the term “cask” cited by the majority are general definitions and are not helpful in deciding the issue at bar. It is my view that we are wholly unjustified in reversing the judgment of the trial court, and especially in view of the fact that in that court the question had been definitely settled by prior decisions. Before the judgment should be reversed, it ought to appear clear to us that the trial court’s decision was against the weight of authority or against the common meaning of the term as defined by the lexicographers.

The identical provision “Casks, barrels, and hogsheads” has been in all the tariff acts which I have examined back to and including the tariff act of 1909 and the term “cask” had appeared in prior tariff *179acts. It is important to note tbat in none of the acts is there a general clause such as "and similar articles” following the three named articles.. If Congress had intended for tight cooperage like the importation at bar to have been dutiable under paragraph 407, it would have used a general expression broad enough to include many articles produced, by our cooperage plants such as kegs, tierces, wooden tubs, tanksr vats, and other articles referred to by the Tariff Commission when in. 1929 it supplied Congress with information on the paragraph. A reading of the following quoted portion from the Summary of Tariff Information, 1929, satisfies me that the three articles specifically named were understood to be articles in which merchandise might-be shipped or transported and not such containers as ordinarily would be used for storage' — such as a vat or tank. Such storage articles are-ordinarily, by reason of their size and weight, built in the establishment in which their use is desired. Adequate provision was made in. the wood schedule to cover this land of article. At page 935 of said. Summary is found the following:

CASKS, BARRELS, HOGSHEADS, EMPTY
Description and uses.' — Casks, barrels, and hogsheads are containers, constructed of staves, with a distinctive bilge and flat ends. Casks are distinguished' from barrels in that the staves and heading are thicker, and additional hoops are’ utilized to provide increased strength. Hogsheads are so called because of their greater capacity than casks or barrels. [Italics mine.]
Barrels are of two general types — tight and slack; tight barrels are used as containers for liquids, while slack barrels are used as containers for flour, sugar, cement, fruit, vegetables, and innumerable other dry commodities. Hogsheads are used for containers of tobacco, crockery, and other relatively bulky articles; at one time much molasses was shipped in hogsheads.
The use of casks, barrels, and hogsheads-has undergone material changes in the last two decades. The advent of prohibition reduced the demand for containers for shipping wines, liquor, and beer; tank cars now move oil,.vinegar, and molasses- and other liquid articles that were once handled largely in barrels. Slack cooperage production also has been affected by the substitution of bags for packing cement; sacks for sugar and flour; and boxes or other containers of wood or veneer for apples and other fruits and vegetables.

As is observed from the italicized and quoted language, Congress-was told that hogsheads had greater capacity than casks or barrels. It is not claimed that the importation is a hogshead. It seems tome that a hogshead is, in the common acceptance, a larger container than a barrel or a cask and there would be more justification- for the-court holding that the instant importation was a hogshead than, a cask.