The construction given by the department charged with executing
a tariff act is entitled to great weight, and where for a number of
years a manufactured article has been classified under the
similitude section, this Court will lean in the same direction, and
so held that the Japanese beverage
sake is properly
dutiable under § 297 of the Tariff Act of July 24, 1897, c. ll, 30
Stat. 151, 205, as similar to still wine, and not as similar to
beer.
After a departmental classification of an article under the
similitude section of a tariff law, the reenactment by Congress of
a tariff law without specially classifying that article may be
regarded as a qualified approval by Congress of such
classification.
This case is before us on a writ of certiorari to the United
States Circuit Court of Appeals for the Ninth Circuit. The question
is the proper classification, under the Tariff Act of July 24,
1897, 30 Stat. 151, c. 11, of a Japanese beverage Known as
"
sake." "
Sake" is not named in that act, but § 7
(p. 205), frequently spoken of as "the similitude section," reads
as follows:
"That each and every imported article, not enumerated in this
act, which is similar, either in material, quality, texture, or the
use to which it may be applied, to any article enumerated in this
act as chargeable with duty, shall pay the same rate of duty which
is levied on the enumerated article which it most resembles in any
of the particulars before mentioned, and if any nonenumerated
article equally resembles two or more enumerated articles on which
different rates of duty are chargeable, there shall be levied on
such nonenumerated
Page 215 U. S. 393
article the same rate of duty as is chargeable on the article
which it resembles, paying the highest rate of duty."
In November, 1904, petitioner imported some
sake at the
port of San Francisco, and, following prior rulings, the collector,
under the similitude section, held it similar to still wine
containing more than fourteen percent of absolute alcohol, and
dutiable accordingly at fifty cents per gallon, under paragraph 296
(p. 174). The petitioner protested, and claimed that it was either
a nonenumerated manufactured article, dutiable at twenty percent
ad valorem, under § 6 (p. 205), or, by reason of
similitude to ale, porter, or beer at twenty cents per gallon under
paragraph 297 (p. 174). Both the Board of General Appraisers and
the circuit court sustained the protest, feeling themselves
constrained by the decision of the Circuit Court for the Southern
District of New York (
Nishimiya v. United States, 131 F.
650), and that of the Circuit Court of Appeals for the Second
Circuit (
United States v. Nishimiya, 137 F. 396). On
appeal, the United States Circuit Court of Appeals for the Ninth
Circuit reversed the decision of the circuit court and sustained
the classification made by the collector.
Page 215 U. S. 396
MR. JUSTICE BREWER delivered the opinion of the Court.
Something can be said on both sides of the question of
similarity, and, if the case turned simply upon that question, it
might be difficult to reach a satisfactory conclusion. In such a
case, the construction given by the department charged with the
execution of the tariff acts is entitled to great weight. As said
by MR. JUSTICE McKENNA, delivering the opinion of the Court in
United States v. Hermanos, 209 U.
S. 337,
209 U. S.
339:
"We have said that, when the meaning of a statute is doubtful,
great weight should be given to the construction placed upon it by
the department charged with its execution.
Robertson v.
Downing, 127 U. S. 607;
United States
v. Healey, 160 U. S. 136. And we have
decided that the reenactment by Congress, without change, of a
statute which had previously received long continued executive
construction, is an adoption by Congress of such construction.
United States v. Falk, 204 U. S. 143,
204 U. S.
152."
In the decision of this case, MR. JUSTICE WHITE and Mr. Justice
Peckham concurred solely because of the prior administrative
construction.
Prior to 1894,
sake was classified by similitude to
distilled liquor, and subjected to a duty of $2.50 per proof
gallon, under paragraph 329, act 1890, 26 Stat. 567, 589, c. 1244,
and $2, under Schedule A,, act 1883, 22 Stat. 488, 494, c. 121.
Page 215 U. S. 397
In July, 1894, Y. Woozens protested against this classification,
claiming the liquor was dutiable under the act of 1890 by
similitude to still wine. He was sustained by the Board of General
Appraisers in opinion dated October 4, 1894 (T.D. 15,392, G.A.
2786). The Treasury Department acquiesced, and has acted
accordingly until the present time; no protest against the practice
was entered until March, 1902. Three years after the ruling in the
Woozens case, Congress passed the Tariff Act of 1897, which in no
way modified the provisions upon which the appraisers had
previously based their decision. This in effect confirmed their
action. In March, 1902, Hackfeld & Company, Honolulu, protested
against the classification of "
sake" by similitude to
still wine, but the prior ruling was sustained by the appraisers
and the importer acquiesced in the decision. In the Tariff Act of
1909,
sake is specially enumerated with still wine
(paragraph 307):
"Still wines, including ginger wine or ginger cordial, vermuth,
and rice wine or
sake, and similar beverages not specially
provided for in this section . . . if containing more than fourteen
percentum of absolute alcohol, sixty cents per gallon."
36 Stat. 11, 40, c. 6.
In April, 1903, Nishimiya imported some
sake at New
York, and protested against the classification by similitude to
still wine. The Board of Appraisers sustained the collector, but,
on appeal to the Circuit Court for the Southern District of New
York, the circuit judge thought that
sake was not
sufficiently like either wine or beer to be classified by
similitude, and held it to be a nonenumerated manufactured article.
This conclusion was sustained by the Circuit Court of Appeals for
the Second Circuit.
United States v. Nishimiya, supra.
Thus, it appears that, prior to 1894,
sake was
classified by similitude to distilled liquor, and then, on a
protest by an importer, it was classified by similitude to still
wine, ant that ruling has been followed from that time to the
present, receiving in the meantime at least a qualified approval
by
Page 215 U. S. 398
Congress. It was accepted without challenge until 1902. Then, a
protest against it having been overruled, it remained unchallenged
for another year. After this, and in the latest tariff act,
Congress has in terms put
sake in the category with still
wines.
Under these circumstances, we think the intent of Congress in
respect to the classification of
sake is clearly
manifested, and the judgment of the court of appeals is
Affirmed.
