United States v. Lilly & Co.

DISSENTING OPINIÓN

Smith and Barber, Judges:

We are sorry that we can not agree with the prevailing opinion in this case.

The merchandise imported is a hollow glass article made of glass tubing cut into appropriate lengths. To make the article one end of each length is fused and either pressed or rounded to form the bottom. The other end is fused and tapered by drawing it to a point where it is so sealed that it can not be used as a container without further processing in this country. Such articles are imported by wholesale drug houses which convert them into containers by breaking off part of the narrow ends thereof. The sterilized interior of the container so made is then filled or partly filled with chemicals, drugs, *342medicinal preparations or similar substances and the opening which gave them ingress is again sealed by fusing the glass.

The only question presented by this appeal is whether the article, into which, in its imported condition, nothing can be poured or put, is a bottle, vial, or any of the containers specified in paragraph 217 of the tariff act of 1922. That paragraph is a bottle paragraph and provides for filled or unfilled bottles, jars, vials, demijohns, and carboys, made of plain green or colored, molded or pressed glass and for filled or unfilled bottles, vials, jars, demijohns, and carboys made of flint, lime or lead glass.

A bottle is a vessel for holding, carrying, and pouring liquids or other substances and has a neck and narrow mouth that can be stopped. A jar is a deep vessel of earthenware or glass more or less cylindrical in shape with no spout and generally with a wide mouth. See bottle and jar, New Standard Dictionary, 1925. A demijohn is a large, short necked bottle with a bulging body, usually inclosed in wicker or rush work. See demijohn, Oxford Dictionary. A carboy is a very large demijohn or a globular glass bottle inclosed in a box or in wicker work and designed mainly for the transportation of corrosive acids and the like. See carboy, Oxford Dictionary and New Standard Dictionary, 1925. A vial is a small narrow cylindrical vessel commonly composed of glass and fitted with a mouth to be stopped with a stopfer and has for its purpose the holding of liquids, especially medicines. See vial, New Standard Dictionary, 1925. A vial is a vessel or bottle, especially a small glass bottle for holding liquids and particularly liquid medicines. See vial, Century Dictionary and Encyclopedia.

Every one of the articles named in paragraph 217 must have a mouth of some kind by means of which liquids or other substances may be inserted and it is clear from the definitions cited that the scope of the provision is limited to certain classes of glass containers which are either filled or which at the time of importation are, without further processing, capable of being filled. The merchandise imported, in the condition in which it was imported, can not be considered as a container of any kind and by no stretch of the imagination can it be regarded as a bottle or as a vial which, according to all the definitions and the common meaning of the word, is a small bottle.

Ampoules are not provided for in paragraph 217 and if they be an article which is not a bottle, jar, demijohn, carboy, or vial, they are not subject to the duty imposed by that paragraph. If ampoules be another name for vials, then the articles imported are not ampoules or vials inasmuch as they were at the time of their importation utterly incapable of functioning as containers and incapable of receiving liquids or any other substance whatever.

*343Tbe word “ampoule” is not defined in any of the English dictionaries, except in Webster’s New International Dictionary, 1925, which defines it as follows:

Ampoule (ampool; F. anpool), n. (See Ampul.) A small glass capsule for containing a hypodermic solution, usually one dose.

It is apparent from the English definitions of the words “ampulla” and “ ampul” that ampoule is derived from the Latin word “ampulla,” which meant a small bottle or vessel with a slender neck and a flattened mouth used for holding perfumes for the toilet and oils for anointing the body after bathing or athletic exercises. In the Middle Ages the term “ampullse” was applied to small glass or lead flasks or bottles carried as containers by pilgrims or travelers. In the church, ampullse were flasks for holding the consecrated oil used in confirmtion, ordination, and extreme unction. See ampulla, New Standard Dictionary, 1925, and Webster’s New International Dictionary, 1925. Ampul, another derivative of ampulla, is defined by the Oxford Dictionary, the Century Dictionary and Encyclopedia, and Webster’s New International Dictionary as the obsolete designation for a small bottle, flask, or vial.

Every definition of ampulla and of its derivative ampul clearly and unmistakably contemplates a container having a mouth and into or from which something may be poured. None .of the definitions indicate that an ampul, ampulla, or ampoule means a vessel which has been permanently sealed and therefore incapable, without injury to itself, of receiving liquids or other matter or of discharging therefrom that which may have been received prior to the sealing thereof.

Hydrochlorate of quinine imported under the tariff act of 1909, in sealed glass tubes designated as ampoules, was assessed for duty under paragraph 65 of said act as chemicals, drugs, medicinal and similar substances, whether dutiable or free, imported in capsules, pills, tablets; lozenges, troches, or similar forms and intended for medicinal purposes. The importer protested that the hydrochlorate of quinine was a salt of cinchona bark and was, therefore, free of duty with its container under paragraph 658 of the free list of the act of 1909. The Board of General Appraisers held that the ampoules in which the merchandise was imported were the usual containers for that class of goods and that they were free of duty as claimed by the importer. Protest of Vandegrift & Co., T. D. 31830, dated August 17, 1911.

Apparently to meet the decision in the Vandegrijt case, Congress provided in paragraph 17 of the tariff act of 1913 for chemicals, drugs, medicinal and similar substances in ampoules and thereby amended paragraph 65 of the tariff act of 1909, which contained no provision for such preparations in ampoules. In consequence of that *344amendment the Board of General Appraisers on June 17, 1915, held that vaccine virus in ampoules was not entitled to free entry as vaccine virus under paragraph 400 of the act of 1913. See protest of the American Express Co,; Abstract 37925.

In September, 1911, the Board of General Appraisers adjudged that small vials of glass known as “ampulla,” which, after importation were sterilized, filled - and then sealed by fusing the mouth of the vial, and which were used as containers for hypodermic fluids, were not dutiable as bottles or vials composed of molded or pressed glass under paragraph 99 of the act of 1897, but were blown glassware under paragraph 100. Protest of Kny-Scherer Co., dated September 11 1911, Abstract 26537, 21 Treas. Dec. 220.

• In June, 1922, prior to the passage of the act of 1922, the board decided that ampoules consisting of clear, white glass without etching or ornamentation of any kind were not dutiable under paragraph 83 of the act of 1913 as vials of plain green or colored, molded or pressed, glass or vials of flint, lime, or lead glass. Protest of Bernard, Judae Co., T. D. 45023.

The decisions just cited establish beyond debate that the word “ampoule” was known to the Board of General Appraisers and presumptively to Congress as early as August, 1911. In fact, Congress was so well acquainted with that word that in paragraph 17 of the act of 1913 it expressly provided for “chemicals, drugs, medicinal and similar substances * * * in ampoules.” From the fact that chemicals and medicinal preparations placed abroad in ampoules were known to Congress as chemicals and medicinal preparations in ampoules and from the fact that such chemicals and medicinal preparations were provided for in paragraph 17 of the tariff act of 1913, it can not be logically concluded at all that Congress regarded as bottles or vials empty ampoules sealed with fused glass and incapable of receiving merchandise for transportation, a characteristic requirement of paragraph 97 of the act of 1909, of. paragraph 83 of the act of 1913, and of paragraph 217 of the act of 1922, which, with changes as to the duty to be imposed, substantially reenacts said paragraphs 97 and 83.

Congress knew the common ordinary meaning of the words “bottle” and “vial” and if it wished to include in paragraph 217 of the Tariff Act of 1922 empty ampoules sealed in such a way that they could not be used as containers, it would have expressly provided for them therein.

It is barely possible that there are two classes of ampoules, one of which is not available for use as a container until its condition has been modified by giving it a mouth and the other ready for use as a container because it has a mouth and is capable of receiving liquids *345and other substances of appropriate size. If there be two classes of ampoules, the definition of vial makes it clear that the sealed ampoule is not a vial. The sealed ampoule might be regarded as a partly manufactured vial, but it certainly could not become a vial until it was further processed.

An attempt was made to show that ampoules were known to the trade as vials, but the evidence in that behalf was insufficient to justify the conclusion that empty ampoules which have been sealed with fused glass so as to preclude the entrance therein of any substances whatever are known to the commerce of this country as vials. Indeed, the principal witness, who testified on that subject, frankly stated that he had no reason to believe that the meaning of vial in the trade differed from the dictionary definition of the term. The merchandise in its condition as imported is not a container, bottle, or vial, and is incapable of receiving and can not be used as a container for the holding or transportation of merchandise until it has been further processed in this country.

We are of the opinion that the judgment of the Board of General Appraisers should be affirmed.