Bottles and corks in which beer is bottled and exported for sale
are not "imported materials used in the manufacture" of such beer
meaning of the drawback provisions of the customs revenue laws,
although the beer be bottled and corked, and subsequently heated,
This was a petition for a drawback upon hops and barley to the
amount of $2,371.35, and upon bottles and corks to the amount of
$9,817.97, used in the manufacture of bottled beer for export.
The Court of Claims made a finding of facts, the substance of
which is set forth in the margin, and gave judgment for the first
item, but rejected the second, and the claimant appealed.
Page 181 U. S. 586
MR. JUSTICE BROWN delivered the opinion of the Court.
This is a claim for a drawback of duties upon certain imported
bottles and corks alleged to have been used in the manufacture of
bottled beer, subsequently exported.
By § 25 of the tariff act of 1890, 26 Stat. 567, 617, c.
"where imported materials on which duties have been paid are
used in the manufacture of articles manufactured or produced in the
United States, there shall be allowed on the exportation of such
articles a drawback equal in amount to the duties paid on the
materials used, less one percentum of such duties."
The object of this section is evidently to stimulate domestic
manufactures by allowing to the manufacturer a rebate of duties
paid upon imported materials used by him in such product.
The theory of the claimant in this connection is that bottled
beer is really a different article from ordinary beer, and
Page 181 U. S. 587
a process of manufacture in which bottles and corks are a
material ingredient. Its argument is thus stated in the
"In the manufacture of beer for export, it becomes necessary to
kill the yeast in the beer in order to prevent second fermentation
and consequent ruin of the beer, and, in order to destroy the germs
of the yeast, the finished beer must be steamed to the degree
necessary to kill such germs, and for that purpose the beer must be
enclosed securely in some vessel to prevent the escape of the
carbonic acid gas, and of all such vessels, a bottle manufactured
of glass is the one best adapted for that purpose. Such beer, after
being subjected to the process of steaming, is materially different
from the beer before being subjected to steaming, and in order to
create such different article, a closed glass bottle is
indispensable, and the bottles and corks, forming a portion of the
complete manufactured article known as 'bottled beer,' are, as well
as the hops and barley entering into the same, a necessary
component part of the article when completed and in a condition
ready for export."
It seems there has been some difference of opinion among the
Treasury officials upon this subject, since on March 31, 1886, the
then Secretary of the Treasury decided, under a statute similar to
the one above cited, that a drawback should be allowed, not only
for the hops, rice, and barley used in the manufacture of the beer,
but for bottles and corks, and in an official table of drawback
duties, published August 17, 1886, bottles and corks imported and
used in bottling beer were specifically named as entitled to the
benefit of a drawback to the full amount of the duty paid. This
ruling remained in force until October 28, 1890, when the assistant
secretary decided that imported bottles used in the bottling of
fermented liquors made here from domestic grains and hops were not
entitled to a drawback under the tariff act of 1890; but,
notwithstanding this ruling, it would appear that the drawback
continued to be allowed and paid until March 24, 1893, when, in a
letter to the collector of customs of New York, the Secretary
overruled and rescinded the earlier decisions, and has since
refused to allow the drawback.
In our view, the question presents no difficulty whatever.
Page 181 U. S. 588
Under the statute, the drawback is allowed only upon "imported
materials . . . used in the manufacture of articles manufactured or
produced in the United States," and subsequently exported. By this
is undoubtedly meant that the imported materials must enter into
and form one of the ingredients of the manufactured article, as did
the hops and barley upon which the drawback was allowed, and
properly allowed, by the Court of Claims. But the bottles and corks
are not "imported materials" at all, but finished products, and
usable for any liquor which the importer may choose to put in them.
Neither are they ingredients used in the manufacture of exported or
any other kind of beer, in any proper sense of the term, but simply
the packages which the manufacturer, for the purposes of export,
sees fit, and perhaps is required, to make use of for the proper
preservation of his product. Bottled beer is still beer, made of
the same ingredients as ordinary beer, though made with greater
care, and to speak of the bottles and corks as ingredients of the
beer is simply an abuse of language.
The fact that the beer must be steamed after bottling to a point
necessary to kill the germs of yeast, and for that purpose must be
enclosed in some vessel to prevent the escape of the carbonic acid
gas, only shows that the beer is bottled before it is finally
manufactured and ready for the market. This process certainly does
not convert a bottle from an incasement into an ingredient. In this
particular, beer does not materially differ from a hundred other
articles which require to be incased for their proper preservation.
Thus, champagne and other sparkling wines must be bottled while yet
effervescing, or they will lose the tang which gives them their
principal value. The same remark may be made of Apollinaris and
other effervescing waters, though not manufactured, and of certain
canned fruits and vegetables which are required to be incased while
hot and still in the process of preservation.
The claim is by no means so strong a one for the allowance of a
drawback as was the Tide Water Oil Co. v. United States,
171 U. S. 210
which imported shooks were used in the manufacture of boxes
subsequently exported to foreign countries. We held in that case
that boxes constructed of shooks which
Page 181 U. S. 589
were imported in bundles of ends, sides, tops, and bottoms, and
needed only to be put together in the United States and certain
nailing and trimming, the whole value of which was equal to about
one tenth of the value of the boxes, were not "wholly manufactured"
in the United States within Rev.Stat. § 3019, and the Treasury
Regulations of 1884.
It may be entirely true that, if this drawback be not allowed,
the duties upon the bottles and corks will preclude the
manufacturer from competing in foreign markets with foreign
brewers, since he must necessarily export his beer in imported
bottles, while his foreign competitor may use bottles manufactured
in his own country. Yet this apparent hardship will not authorize
us to do violence to the clear language of the statute. If the law
afford him an imperfect relief, his remedy is by application to
Congress for additional legislation, and not to the judicial power
for a strained interpretation of the law already in force.
The judgment of the Court of Claims is right, and it is
"Findings of Fact"
"The following are the facts of the case as found by the
"I. The claimant is a corporation organized under the laws of
the State of Wisconsin."
"II. Between the 1st day of February, 1893, and the 26th day of
October, 1894, the claimant exported from the port of Milwaukee,
Wisconsin, bottled beer. The hops, barley, bottles, and corks used
in the manufacture of this bottled beer had been imported into the
United States from foreign countries, and duties had been paid
thereon upon importation. The bottled beer was manufactured by the
claimant at Milwaukee, Wisconsin. The imported materials used in
the manufacture, when exported, were identified, the quantity of
the materials used and the amount of duties paid thereon
ascertained, and the fact of the manufacture of the articles in the
United States and their exportation were determined under
regulations prescribed by the Secretary of the Treasury. The total
amount of the duties paid on the materials mentioned so used and
exported was $12,189.32, divided as follows: upon the bottles and
corks, $9,817.97; upon the hops and barley, $2,371.35."
"III. The Treasury Department has not refused to pay the
drawback upon the hops and barley, but such drawback could be paid
under the regulations of the department. It refuses to pay the
drawback upon the bottles and corks for the reason stated in the
following official letter dated March 24, 1893:"
"[Here follows certain correspondence summarized in the
"VII. The manufacture of beer for bottling for export differs
from the manufacture for ordinary domestic use, both because the
materials must be selected with greater care, and the process must
be conducted differently in order that the bottled product may keep
without change under varying conditions of climate, temperature,
position, and transportation, and the beer preserve purity and
clearness under all such varying conditions. Turbidity of bottled
beer made for exportation must especially be avoided, as this
renders the beer commercially unsalable. This is chiefly caused by
the precipitation of albuminoids contained in the beer, and the
differences in the process of manufacture between domestic beer and
bottled beer for export are chiefly intended for the elimination of
these albuminoids. It may also be caused by the germination of
living yeast cells, and this is prevented by the process of
"IX. After beer intended for bottling for export is placed in
the barrels the following processes occur:"
"The barrels are hoisted to the required height of the filling
machine, the stamp is taken off, cancelled, and replaced, the keg
is opened, a faucet entered in the lower hole, and the beer drawn
from the barrel into the filling machine and through a proper
disposal of siphons into the bottles. The bottles are then sent to
the corking machines and corked; a thin metal cap is placed over
the cork for the protection of the cork and a wire attached to the
neck of the bottle and wound over the cork. The bottles are then
placed in the steaming boxes, and these boxes carried to a steaming
vat, which is filled with water and steam turned into the water,
raising its temperature to about 150� and remaining at that
temperature for about one hour, when it is cooled down to about 80�
or 90�. This process, known as pasteurizing, is for the purpose of
destroying living yeast cells, and is necessary for beer bottled
"Pasteurizing can be done in a large vessel before bottling, but
the beer would become again impregnated by contact with the
atmosphere when afterwards drawn into bottles."
"This process must be conducted carefully, because if the
temperature rises too high the beer gets an unpalatable taste and
the albuminoids remaining in it are more apt to be eliminated,
resulting in a loss of clearness, which renders the beer
"This pasteurization may be omitted in the case of bottled beer
for local use."
"The bottles, previous to their use, undergo a special washing
process with hot water and soda, so arranged that the bottles are
filled and emptied continuously. They are then washed in a tank
filled with lukewarm water, on the outside by hand and on the
inside by brushes in the washing machine, and then rinsed with cold
water before being placed in the racks to be filled."
"Old as well as new bottles are used."
"X. In making bottled beer, from the time of purchase of the
ingredients until the completion of the finished product, the
process must be so managed as to diminish the albuminoids. When
prepared as stated in the foregoing findings, bottled beer can
stand the heat at the equator without being spoiled."
"XI. Beer bottled for export is understood to be beer intended
for shipment, whether to domestic or foreign points, and for use
other than local and immediate. When beer is bottled for local and
immediate use, it may be the same beer as hereinbefore described
and prepared in the same manner as for export, including
pasteurization, or it may be the same beer prepared in the same
manner without pasteurization, or it may be ordinary keg beer,
differing from bottled beer for export in the particulars described
in findings VII and VIII, and without pasteurization."
"XII. When bottled beer is sold to retailers, it is delivered in
cases of bottles and an extra charge is made to the purchaser for
the case and bottles, which charge is credited to his account on
the return of the case and bottles. A similar practice obtains on
the sale of the bottled beer by the case by retailers to their