Opinion
No. 232.
Argued April 11, 1901. Decided May 20, 1901.
Bottles and corks in which beer is bottled and exported for sale are not "imported materials used in the manufacture" of such beer within the meaning of the drawback provisions of the customs revenue laws, although the beer be bottled and corked, and subsequently heated, for its better preservation.
Mr. William B. King for appellant. Mr. George A. King was on his brief. Mr. Assistant Attorney General Pradt for appellee.
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 been, subsequently exported.
By § 25 of the Act of October 1, 1890, c. 1244, 26 Stat. 567, 617, "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 per centum 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 requires a process of manufacture in which bottles and corks are a material ingredient. Its argument is thus stated in the petition:
"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 inclosed 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 the 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 remaining 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. 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 Tidewater Oil Co. v. The United States, 171 U.S. 210, in 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 were imported in bundles of ends, sides, tops and bottoms, and needed only to be put together in the United States and in 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 therefore
Affirmed.