Mr. Day to Mr. Cambon.
Washington, July 25, 1898.
Excellency: The Department, as I had the honor to advise you, referred to the Treasury for its consideration and opinion your note of the 9th ultimo in relation to a difference of interpretation which had arisen as to whether “cordials” were intended by the reciprocity agreement of May 28, 1898, to be included in the clause prescribing the rate of duty on “brandies or other spirits manufactured or distilled from grain or other materials.”
The Treasury, after full consideration of the subject and of the views submitted, not only in your note, but also orally by Mr. Thiebaut, secretary of your embassy, has found himself compelled to adhere to the opinion previously expressed that the clause in question can not be construed so as to embrace “cordials.”
From this opinion the Department, after full consideration, finds itself unable to dissent. It fails to discover either in the agreement itself or in the law under which it was concluded sufficient ground for a contrary opinion.
It was and is the opinion of the Treasury that the words “brandies or other spirits manufactured or distilled from grain or other materials,” as incorporated into the reciprocity agreement from section 3 of the tariff act under which the agreement was concluded, include only the articles specified in paragraph 289 of section 1 of the act, and that this paragraph does not include cordials, which are embraced in paragraph 292 of the same section.
Paragraph 289 reads as follows:
Brandy and other spirits manufactured or distilled from grain or other materials, and not specially provided for in this act, $2.25 per proof gallon.
Paragraph 292 reads as follows:
Cordials, liqueurs, arrack, absinthe, kirschwasser, ratafia, and other spirituous beverages or bitters of all kinds containing spirits, and not specially provided for in this act, $2.25 per proof gallon.
In the note to which I now have the honor to reply it is admitted that these two paragraphs make a distinction between “brandy and other spirits,” on the one hand, and “cordials” on the other. Indeed, [Page 305] this distinction is very obvious. Paragraph 289 relates to “brandy and other spirits.” Paragraph 292 relates to certain other substances which are described as spirituous beverages or bitters of all kinds containing spirits.”
It is suggested, however, in your note of the 9th ultimo that this distinction “disappears” in section 3 of the tariff act, since it authorizes a concession of duties on “brandies or other spirits manufactured or distilled from grain or other materials” without including the words “and not specially provided for,” as found in paragraph 289. In other words, it is suggested that by the omission of the words “and not specially provided for” the clause relating to “brandies or other spirits” was enlarged, so as to include other articles specifically described in the tariff as “spirituous beverages or bitters of all kinds containing spirits.”
The Department regrets its inability to perceive the force of this argument. In effect, it appears to maintain that if paragraph 289 had simply used the words “brandy and other spirits manufactured or distilled from grain or other materials” and omitted the succeeding clause “and not specially provided for in this act,” then paragraph 292, so far at least as it relates to “cordials,” would have been purely tautological and, therefore, superfluous, cordials being included in “brandy and other spirits.” It is evident, however, that the tariff act is based upon a wholly different view of the matter. The rate of duty prescribed in paragraphs 289 and 292 is precisely the same, and the only reason for their separate insertion was the fact that they related to two different classes of articles, one of which is described as “brandy and other spirits,” and the other as “spirituous beverages or bitters of all kinds containing spirits.” It is also to be observed that paragraph 292 itself contains the words “and not specially provided for.” Yet the Department can hardly suppose that if section 3 had simply provided for a remission of duties on “spirituous beverages or bitters of all kinds containing spirits” and said nothing as to “brandy and other spirits,” the former would have been supposed to include the latter.
To hold that the mere omission of the words “and not otherwise provided for” so enlarged the scope of the terms “brandy and other spirits” as to include another class of articles specified in another part of the act, under a different designation, but at the same rate of duty, would be to overturn the settled rules of construction. The courts have repeatedly held that where Congress has designated an article by a specific name and imposed a duty upon it, the employment in another part of the same act of general terms even though such terms are broad enough to comprehend the article specifically designated, can not be held to affect the duty on such articles, In the case of Arthur v. Rheims, 96 U. S. 143, the Supreme Court of the United States said:
The general words of the act of 1872 no doubt are sufficiently comprehensive to embrace the case before us. Artificial flowers are a manufacture of which cotton is the chief component, and, were that all, would be entitled to the deduction asked for. But it is true, also, that they are dutiable under the law of 1864, not as a manufacture of cotton, but specifically, eo nomine, as artificial flowers. It has been held in many cases, as that of “almonds and dried fruit,” the “canary birds,” and at the present term in the case of “thread laces” and of “chocolate” that, when an article is intended to be made dutiable by its specific designation, it will not be affected by the general words of the same or another statute, which would otherwise embrace it. This rule applies both to statutes reducing and to statutes increasing duties. Giving it such application here, we must hold “artificial flowers” are not entitled to be classed as a manufacture of cotton which is entitled to the reduction provided for by act of 1872.
In reference to the question raised in your note of the 9th ultimo, as to the estimates of concessions made in the negotiation of the agreement of May 28, 1898, it appears that the part which the duties on cordials may have formed in those concessions is altogether certain.
While the Department regrets its inability to concur in the views expressed in your note of the 9th ultimo, it is proper to add that any persons who may be dissatisfied with the views which the Executive Department is obliged to take as to the questions under consideration are at liberty to appeal to the courts.
Accept, etc.,