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HOLLENDER v. MAGONE.

decided: May 10, 1893.

HOLLENDER
v.
MAGONE.



ERROR TO THE CIRCUIT COURT OF THE UNITED STATES FOR THE SOUTHERN DISTRICT OF NEW YORK.

Author: Brewer

[ 149 U.S. Page 588]

 MR. JUSTICE BREWER, after stating the case, 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 it 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

[ 149 U.S. Page 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, absinthe, kirschwasser, 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, absinthe, Kirschen wasser, 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, absinthe, 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, absinthe, kirschenwasser, ratafia, and other similar spirituous beverages." 12 Stat. 180. In 1862, the following: "On cordials, and liqueurs of all kinds, and arrack, absinthe, kirschenwasser, ratafia, and

[ 149 U.S. Page 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, absinthe, kirschenwasser, 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 per centum 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

[ 149 U.S. Page 591]

     spirits are a component part of chief value, not specially enumerated, &c. The seventh is that heretofore mentioned in reference to cordials, liquors, &c. 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, &c. The ninth imposes a duty on bay rum, or bay water, ...


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