HENSEL v. UNITED STATES

HENSEL v. UNITED STATES. (Circuit Court, S. D. New York. January 22, 1900.) No. 2,902. Customs Duties — Glass Bottles. Glass bottles, filled with a medicinal preparation dutiable at 25 per cent, ad valorem, are dutiable under tlie exception in paragraph 99 of the act of 1897, relating to glass bottles and vials, filled or unfilled, “such as contain merchandise subject to an ad valorem rate of duty, or to a duty based in whole or in part on the value thereof, which shall be dutiable at the rate applicable to tlieir contents.” Comstock & Brown, for complainant. Chas. D. Baker, Asst. U. S. Atty. [MAJORITY — WHEELEB, District Judge.] WHEELEB, District Judge. These are glass bottles, filled with a medicinal preparation dutiable at 25 per cent, ad valorem. They have been assessed at 40 per cent, under the proviso of paragraph 99 of the act of 1897. That paragraph enacts that glass bottles, vials, jars, demijohns, and carboys, filled or unfilled, not otherwise specially provided for, “and whether their contents be dutiable or free (except such as contain merchandise subject to an ad valorem rate of duty, or to a duty based in whole or in part upon the value thereof, which shall he dutiable at the rate applicable to their contents) shall pay duty as follows: [which is by weight] provided that none of the above articles shall pay a less duty than forty par centum ad valorem.” This construction contradicts the exception, which seems to place a special duty upon this kind of bottles, when filled with dutiable contents, the same as that upon the contents, by making that upon the bottles different from that on the contents. The exception is out of the whole paragraph, and leaves the proviso to operate upon the rest. This gives effect to the whole, while the other construction does not. Decision reversed.