dissenting.
To my mind it is inconceivable that Congress in passing paragraph 742 of the Tariff Act of 1930 and in using the phrase “Grapes in bulk, crates, barrels or other packages” [Italics mine] could possibly have meant packages such as are at bar. In establishing the unit of a cubic foot of space as a basis for duty (at 25 cents per cubic foot), *6surely Congress could not have had in mind 15-ounce tins (containing only about one-seventieth of a cubic foot) of peeled grapes hermetically sealed in their juice. In the use of the word “packages” I think the court should have concluded that Congress never contemplated a package of preserved grapes (and these necessarily are preserved) in so small a container as to make the tariff duty applicable to them wholly inadequate for the purposes intended.
Everything connected with the legislative history of this provision suggests that Congress had in contemplation grapes “in bulk, crates, barrels, or other packages” which ordinarily were packaged in sawdust or other packing material in such manner that to remove them from the package would disturb their keeping quality.
The majority have arrived at what I regard as an anomalous conclusion based upon the importance to be given to the use of the phrase “other packages” in the paragraph. It is true that the hermetically sealed, small containers may, in a broad sense, be regarded as packages, but in my judgment they are not packages within the meaning of the paragraph.. I will not belabor the issue as to what Congress meant by “packages,” but it is obvious that it might include containers other than crates or barrels, that it might contain grapes which Congress had in mind in containers not hermetically sealed that would respond to the common meaning of the term “package.”- The majority evidently found it difficult to draw a fine of demarcation solely upon the question of the size of the package; but to my mind it is the duty of the court, in attempting to arrive at the intent of Congress, to avoid a construction that brings about an anomalous result.
This problem confronted the court in the case of United States v. La Manna, Azema & Farnan et al., 14 Ct. Cust. Appls. 123, T. D. 41647, referred to in the majority opinion. There the onions were very small, some of them smaller than peas. The-bottles contained white vinegar. There, as here, the rule that an eo nomine provision for merchandise includes that merchandise in all forms was invoked. It was claimed there that the onions were dutiable as “Onions, 1 cent per pound.” It was pointed out in that decision that Congress had changed the measurement of the same kind of onions from bushels to pounds to “conform to commercial usage.” We there had before us a problem as to whether Congress, when it changed from bushels to pounds, had in mind the same onions that it had theretofore eo nomine provided for by the bushel. The court held that onions put up in small bottles should not be classified for duty purposes under a provision which provided for the pound as the unit of measurement. To avoid such an anomalous result we said, by a unanimous opinion of this court, that Congress could not have had in mind, when it enacted the provision for onions at 1 cent per pound, onions in small *7jars of 1% ounces. We there applied the so-called “master rule of construction” later announced by this court in United States v. Clay Adams Co., Inc., 20 C. C. P. A. (Customs) 285, T. D. 46078, in which we said:
* * *. All rules of construction must yield if the legislative intent is shown to be counter to the apparent intent indicated by such rule. The master rule in the construction of statutes is to so interpret them as to carry out the legislative intent. * * * (citing numerous cases).
Also pertinent here is United States v. Stone & Downer Co. et al., 274 U. S. 225, where the Supreme Court of the United States, to avoid an anomalous result, pointed out that Congress in the use of the term “clothing wool” could not have intended the exclusion of long-fibered combing wool. This conclusion was reached notwithstanding it conflicted with the well-understood meaning of the term previous to that decision.
The instant goods are peeled grapes, yet under the authorities they are admittedly grapes, but not the grapes provided for in paragraph 742 which were to be measured by the “cubic foot of such bulk or the capacity of the packages.” If we follow the reasoning in the La Manna case, it leads us' to the inevitable conclusion, I respectfully submit, that the peeled grapes hermetically sealed in their juice in tins containing only about one-seventieth of a cubic foot could not have been within the contemplation of Congress when it enacted the provision. If we were right in the La Manna case, it is my considered judgment that the majority are wrong in this one.
I do not care to go into the legislative history of the provision or the circumstances under which the involved grapes provision was enacted, notwithstanding the fact that in my judgment it conclusively shows that Congress never intended the term “packages” to be made applicable to hermetically sealed tin containers such as are involved in the instant appeal.
In construing the term “or other packages,” we should not lose sight of the application of the rule of ejusdem generis. Congress said, “Grapes in bulk, crates, barrels” and then made the general provision for “other packages.” In arriving at the intent of Congress in the use of the term “other packages,” we should consider the nature of the preceding part of the paragraph — “Grapes in bulk, crates, barrels.” Surely a tin can, holding one-seventieth of a cubic foot, is not, as a package, ejusdem generis with crates and barrels.
The majority have attempted to distinguish the La Manna case mainly by calling attention to the fact that the onions in that case had been pickled, etc. The fruit provision in the instant case, paragraph 752, likewise provides for fruits which have been preserved in particular stated ways and also “otherwise prepared or preserved.” *8The reasoning of the majority opinion is to the effect that as long as the canned grapes remain grapes, it does not make any difference what kind of treatment they have received. If the grapes in this case had been cooked and yet were grapes, it would have made no difference in the holding of the majority. This is true by reason of the fact that they have given controlling influence to the rule that an eo nomine provision for an article includes that article in all its forms. That rule, like all others, must be subject to exceptions.
Of course, the problem is at once presented as to where the line should be drawn with respect to the size of the package. To my mind, each case involved should rest on its own bottom, and where it appears, as it does to me in this case, that a tin can of the above description should not be regarded as ejusdem generis with “in bulk, crates, barrels,” we should so construe the paragraph as to avoid a resulting anomaly.
Numerous other cases supporting the views herein expressed, many of which were cited by the Government in its. brief, might be referred to, but I think the La Manna case, supra, is the most pertinent.
I think the judgment below should be reversed.