The word "liquors" is frequently, if not generally, used to
define spirits or distilled beverages, in contradistinction to
those that are fermented. It is so used in Schedule H of the Tariff
Act of March 3, 1883, 22 Stat. 505, c. 121.
The word "liquors," as used in that section, is obviously the
result of misspelling, "liqueurs" being intended.
The multitude of articles upon which duty was imposed by the
Tariff Act of 1883 are grouped in that act under fourteen
schedules, each with a different title, and all that was intended
by those titles was a general suggestion as to the character of the
articles within the particular schedule, and not any technically
accurate definition of them.
Generally speaking, a "sound price" implies a sound article. It
appearing that the cost of the beer in question at the place of
export was equivalent to 17 70/100 cents per gallon, and that upon
being examined in New York, much of it was thrown into the streets
as worthless, that but little of it was sold, and that, for three
cents per gallon, it may be assumed that it was a sound article
when shipped at the place of export.
The facts in this case are these: on October 19, 1886, the
plaintiffs imported and entered at New York 226 casks, aggregating
2,861 gallons, of beer, on which the defendant, as collector of the
port, exacted duty at twenty cents a gallon. This was paid by the
plaintiffs under protest, they insisting that the beer had become
sour and worthless on the voyage of importation. They applied, on
October 26, for a rebate on account and to the extent of this
damage, under Rev.Stat. § 2927, which is as follows:
"SEC. 2927. In respect to articles that have been damaged during
the voyage, whether subject to a duty
ad
Page 149 U. S. 587
valorem or chargeable with a specific duty, either by
number, weight, or measure, the appraisers shall ascertain and
certify to what rate or percentage the merchandise is damaged, and
the rate of percentage of damage, so ascertained and certified,
shall be deducted from the original amount, subject to a duty
ad valorem, or from the actual or original number, weight,
or measure, on which specific duties would have been computed."
But this application was refused on the ground that such an
allowance was prohibited by a proviso in Schedule H, Act of March
3, 1883, 22 Stat. 505, c. 121, which says: "There shall be no
allowance for breakage, leakage, or damage on wines, liquors,
cordials, or distilled spirits." Thereafter this suit was brought,
and on the trial thereof the court instructed the jury to find for
the defendant. 38 F. 912. Judgment having been entered on such
verdict, plaintiffs sued out a writ of error from this Court.
Page 149 U. S. 588
MR. JUSTICE BREWER, after stating the facts in the foregoing
language, delivered the opinion of the Court.
The principal question in this case is whether beer is within
the term "liquors," as found in the proviso quoted. The arguments
in favor of such a conclusion are these: First. The word "liquors"
is properly and often used in a generic sense, as including all
intoxicating beverages, and it ought therefore to be construed as
having that general meaning in this clause, for if Congress had
intended only a certain kind of liquor, it would have coupled some
word of limitation with it. Second. Schedule H, in which is found
this proviso, and which in its various paragraphs specifically
mentions different kinds of liquors, and among them beer, is
entitled "Liquors," and the schedule being thus, as it were,
introduced by this term, used obviously in its generic sense, it
must be presumed that wherever the word is found within the
schedule, it is also used in the same sense. Third. Unless
"liquors" is given a meaning broad enough to include beer, it is
superfluous, for "wines, cordials, and distilled spirits" are ample
to cover all intoxicating beverages other than malt liquors, such
as ale and beer. Granting that there is force in these arguments,
we are constrained to hold that they are not so persuasive and
convincing
Page 149 U. S. 589
as those tending to show that the word is here used in a
narrower sense, and so as to exclude beer.
In the first place, the word "liquors" is frequently, if not
generally, used to define spirits or distilled beverages, in
contradistinction to those that are fermented. Thus, in the Century
Dictionary, one of its definitions is: "An intoxicating beverage,
especially a spirituous or distilled drink, as distinguished from
fermented beverages, as wine and beer."
See also State v.
Brittain, 89 N.C. 574, 576, in which case the court said:
"The proof was that the defendant sold liquors, and it must be
taken that he sold spirituous liquors. Most generally, the term
'liquors' implies spirituous liquors."
The context indicates that it is here used in this narrower
sense. The proviso names wines, liquors, cordials, and distilled
spirits. If "liquors" is here used in its generic sense, the other
terms are superfluous. That they are present emphasizes the fact
that the word is not so used.
Again, in one paragraph in this section we find this
combination: "Cordials, liquors, arrack, absynthe, kirschenwasser,
ratafia, and other similar spirituous beverages or bitters,
containing spirits." Obviously the word "liquors" here means
liqueurs, that being the name of the kind of drinks of the same
general nature as those specially mentioned. This is obvious not
alone because of the rule
noscitur a sociis, but by a
reference to the language found in prior tariff acts. Thus, in that
of 1842 is this language:
"On cordials and liqueurs of all kinds, sixty cents per gallon;
on arrack, absynthe, kirschenwasser, ratafia, and other similar
spirituous beverages not otherwise specified, sixty cents per
gallon."
5 Stat. 560. In 1846 we find this:
"Brandy and other spirits distilled from grain or other
materials; cordials, absynthe, arrack, curacoa, kirschenwasser,
liqueurs, maraschino, ratafia, and all other spirituous beverages
of a similar character."
9 Stat. 44. In 1861, this is the language: "On cordials and
liquors of all kinds, fifty cents per gallon; on arrack, absynthe,
kirschenwasser, ratafia, and other similar spirituous beverages."
12 Stat. 180. In 1862, the following:
"On cordials and liqueurs of all kinds, and arrack, absynthe,
kirschenwasser, ratafia, and
Page 149 U. S. 590
other similar spirituous beverages not otherwise provided for,
twenty-five cents per gallon."
Id., 544. While in 1870 this is the description:
"On cordials, liqueurs, arrack, absynthe, kirshwasser, vermuth,
ratafia, and other similar spirituous beverages, or bitters
containing spirits, and not otherwise provided for, two dollars per
proof gallon."
16 Stat. 263. And this language, omitting vermuth, was carried
into the Revised Statutes. P. 464.
This retrospect of past legislation, as well as the character of
the other beverages named in combination, indicates the meaning of
the word "liquors" as found in this paragraph of the statute of
1883. It is simply a case of misspelling, and "liqueurs" was
intended. The use of the word in one part of the body of the
statute in conjunction with the term "cordials" and obviously
misspelled, and as obviously meant for "liqueurs," is very
persuasive that, when found in another part of this same schedule
in like conjunction with the word "cordials," there is another case
of misspelling, and "liqueurs" is also there intended.
But further, the whole arrangement of Schedule H points to the
fact that beer was not in the contemplation of Congress in this
proviso. The schedule is composed of eleven separate paragraphs.
The first treats of champagnes, and all other sparkling wines. and
names the duty thereon. The second provides for duties on still
wines, and them alone. In that paragraph are two provisos: first,
"Provided, that any wines imported, containing more than
twenty-four percentum of alcohol, shall be forfeited to the United
States," and second the proviso in question. The third names
vermuth alone. The fourth requires that "wines, brandy, and other
spirituous liquors imported in bottles shall be packed in packages
containing not less than one dozen bottles in each package," and
provides for an additional duty on each bottle. The fifth imposes a
duty on "brandy and other spirits manufactured or distilled from
grain or other materials, and not specially enumerated or provided
for in this act," and declares the standard for determining the
proof of brandy and other spirits or liquors; the sixth on all
compounds or preparations of which distilled
Page 149 U. S. 591
spirits are a component part of chief value, not specially
enumerated, etc. The seventh is that heretofore mentioned in
reference to cordials, liquors, etc. The eighth provides that no
lower rate of duty shall be collected or paid on brandy, spirits,
and other spirituous beverages than that fixed by law for the
description of first proof, but it shall be increased, etc. The
ninth imposes a duty on bay rum or bay water, whether distilled or
compounded; the tenth on ale, porter, and beer, and the eleventh on
ginger ale or ginger beer.
The facts that ginger ale and ginger beer are not intoxicating,
and that bay rum and bay water would scarcely be called
"beverages," show that there is little significance to be given to
the use of the word "liquors" in the title of this schedule. The
multitude of articles upon which duty was imposed by the tariff of
1883 are grouped in that act under fourteen schedules, each with a
different title, and all that was intended by those titles was a
general suggestion as to the character of the articles within the
particular schedule, and not any technically accurate definition of
them. It evidently seemed to Congress unnecessary to create and
entitle a separate schedule for the matters named in these last
three paragraphs, and they fall more naturally under the
descriptive title "liquors" than any other used in the act. This
takes away largely the force of any argument that can be drawn from
the word in the title.
Again, the proviso is found in the second paragraph. The natural
limitation of a proviso is to those things that have been
previously mentioned. Before the proviso, there are named only
wines, sparkling and still, so any word of general description used
therein would, in the absence of satisfactory reasons to the
contrary, be taken to refer to those articles, to-wit, wines. But
"wines" being used in this proviso, the subsequent terms,
"liquors," "cordials," and "distilled spirits," must mean something
else. As there are several words of description, apparently
beverages of different character were intended by each. If, for
instance, in any clause we should find the two terms "wines" and
"distilled spirits," we should believe that some different article
was intended by each term. So if we should find the phrase "wines
and liquors," or "wines or
Page 149 U. S. 592
liquors," is it not a proper inference that some other kind of
beverage than wine was intended by the word "liquors?" Obviously,
as it seems to us, the word is used here in a special, rather than
a general, sense, and when so used in a special sense, it is almost
invariably used to define spirituous, rather than malt, liquors.
Seldom is it used alone to define malt liquors, as
contradistinguished from those that are spirituous and
distilled.
In short, we think it may be laid down as a general proposition
that where the term "liquors" is used in a special sense,
spirituous and distilled beverages are intended, in
contradistinction to fermented ones; that the use of the four words
in this proviso, in the order in which they are arranged and in the
place in which the proviso is found in the schedule, indicates that
"liquors" is used in a special, rather than in a general, sense,
and the conjunction of the words "liquors" and "cordials," as found
in another paragraph and as interpreted by the past history of that
particular part of the tariff legislation, shows that "liqueurs"
was intended by "liquors" in this clause.
But it is further objected by counsel for the government that
there was no proof that the beer was sound when purchased.
Generally speaking, it may be said that a sound price implies a
sound article. The bill of exceptions shows that
"it further appeared from the invoices and the testimony of the
liquidating clerk that the cost of this beer in Germany -- the
place of export -- was equivalent to 17 70/100 cents per gallon in
the money of account of the United States."
How the invoices read and what was the testimony given by the
liquidating clerk are not shown. The result only is stated when it
said that it appeared that the cost of this beer was 17 70/100
cents per gallon. As most of the beer, on its arrival in New York,
was thrown into the street as worthless, and only a little of it
sold, and that at three cents per gallon, it may be assumed that
that was a sound article for which the much greater price was paid
at the place of export. Evidently the testimony in all these
respects was considered sufficient, for the circuit judge, as
appears from the report in the federal
Page 149 U. S. 593
Reporter, 38 F. 916, disposed of the case by saying: "As this
case turns upon the construction of the term
liquors' in the
proviso of schedule H, paragraph 308, I shall direct a verdict for
the defendant."
The judgment will be reversed, and the case remanded for a
new trial.