United States v. Lilly & Co.

Graham, Presiding Judge, delivered the opinion of the court: The articles imported in this case are denominated as ampoules by the importers. The collector classified them as vials holding less than one-fourth of a pint under paragraph 217 of the Tariff Act of 1922, which is as follows: Par. 217. Plain green or colored, molded or pressed, and flint, lime, or lead-glass bottles, vials, jars, and covered or uncovered demijohns, and carboys, any of the foregoing, filled or unfilled, not 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 rate of duty based in whole or in part upon the value thereof, which shall be dutiable at the rate applicable to their contents), — 334 — shall pay duty as follows: If holding more than 1 pint, 1 cent per pound; if holding not more than 1 pint and not less than one-fourth of a pint, 134 cents per pound; if holding less than one-fourth of a pint, 50 cents per gross: Provided That the terms “bottles,” “vials,” “jars,” “demijohns;” and “carboys,” as used herein, shall be restricted to such articles when suitable for use and of the character ordinarily employed for the holding or transportation of merchandise, and not as appliances or implements in chemical or other operations, and shall not include bottles for table service and thermostatic bottles. They are claimed to be dutiable, by importers, as blown-glass articles, not specially provided for, under the fourth subdivision of paragraph 218 of said act, which is as follows: Pab. 218. * * * table and kitchen articles and utensils, and all articles of every description not specially provided for, composed wholly or in chief value of glass or paste, or combinations of glass and paste, blown or partly blown in the 'mold or otherwise, or colored, cut, engraved, etched, frosted, gilded, ground (except such grinding as is necessary for fitting stoppers or for purposes other than ornamentation); painted, printed in any manner, sand-blasted, silvered, stained, or decorated or ornamented in any manner, whether filled or unfilled or whether their contents be dutiable or free, 55 per centum ad valorem; * * * On appeal from the collector’s classification to the Board of General Appraisers, the various protests were sustained and the entries were directed to be reliquidated under said paragraph 218. From that judgment, the Government has appealed. The issue, as stated by counsel, and as it appears from the record, is narrow, but is vigorously contested. It is substantially, this: Are the glass articles imported to be classified as “plain green or colored, molded or pressed, and flint, or lead-glass bottles, vials, jars, and covered or unfilled demijohns, and carboys * * * holding less than one-fourth of a pint,” as specified in said paragraph 217, or as “articles of every description not specially provided for, composed wholly or in chief value of glass or paste, * * * blown or partly blown in the mold or otherwise,” under said paragraph 218. It is conceded by both parties, that if the goods are classifiable under said paragraph 217, it is under the designation, “vials” therein appearing. The collector, having classified the goods under said paragraph 217, when the matter came to the attention of the court below, the presumption was that he had found all the necessary facts to exist which brought the goods within that classification, and that his classification was correct. In order to overcome the correctness of the classification, it devolved upon the protestants to demonstrate not only the incorrectness of the classification, but that the goods were properly otherwise classifiable. The protestants, in order to carry the burden assumed, make three contentions, namely: (1) The goods imported are not commonly known as vials; (2) they are commercially known and designated not as vials, but as ampoules; (3) even if it be conceded that they are vials, they are not such articles as are suitable for — 335 — use and of the character ordinarily employed for the holding and transportation of merchandise. To maintain the issues, a large amount of oral testimony and documentary evidence, as well as a large number of collective and illustrative exhibits, were introduced in the court below. It will be necessary to examine the testimony and evidence as to their bearing upon the issues presented. It appears from the record that the articles imported in this case are glass containers, specially contrived for the transportation of pharmaceutical and biological preparations which are to be used in a medicinal way. These containers are shown to be made of flint glass, and it fairly appears from the record that the glass of which they are prepared is purposely made free from alkali in order that the contents of the containers may not be impaired by chemical reactions. These containers are not pressed or molded, but are made from glass tubing and are of two general types — flat bottomed and round bottomed. In making them the tubing is cut into appropriate lengths and, in the case of the flat-bottomed type, one end is subjected to heat, fused, and then pressed upon an iron plate, thus forming a Bottom; the other end is heated, fused, and drawn out into a long, tapering point, and this point is sealed. In the round-bottomed type the bottom is shaped by blowing. The official samples in the importations in question, together with the official samples in T. D. 39848, the record of which was introduced herein and the samples involved in which were admittedly the same as the importations in the case at bar, show the containers to be of various sizes, ranging in capacity from 1 to approximately 50 cubic centimeters. The record shows that the demands of the medical profession for sterile and uncontaminated containers for certain medicines have led to the adoption by manufacturing chemists of containers such as those imported here and similar types. These are importéd sealed; the pointed ends are then broken off, the contents inserted, and these ends again sealed by the use of heat. In this condition the contents are conveyed to the distributors and thence to the medical profession. When desired for use, the small end of the container is removed by breaking or cutting and the contents are removed by a hypodermic syringe or in such other way as is desired. The purport of all the testimony is to the effect that this is the ordinary method used in transporting a great variety of substances useful for the alleviation of human ailments. Alexander Fisher, manager of the glassware manufacturing department of the appellee Parke, Davis & Co. and a witness for protestants, testified that the imported articles were ampoules. Louis Klein, a witness for protestants and medical consultant for the protestant Parke, Davis & Co., testified that “an ampoule is a special appliance — 336 — designed for placing in the hands of the physician a single dose of injectable medicine in such a form, as to assure him of its sterility.” Walter G. Norvell, superintendent of stock finishing and distribution for the protestant Parke, Davis & Co. and a witness for said protestant, testified that the articles imported were in no way comparable with other bottles, jars, etc., used by protestant in transporting merchandise, and that they are not bottles, jars, demijohns, or carboys of the character ordinarily employed by said protestants for the holding and transportation of merchandise; that a vial is a bottle closed with a cork or diaphragm, while a true ampoule is made from tubing and is hermetically sealed; that a vial is generally used for the transportation of more than one dose and that an ampoule is a “particularly designed container for the preservation of the contents”; that this inclosure for the transportation of liquids was forced upon him by the demands of the medical profession, which demand originated about 16 years before; that such products as are transported in vials, are either stopped with corks or with diaphragms, or protected from deterioration by chemical preservatives. In the proceedings in No. 964975, incorporated into the record-by agreement, John M. Francis, chief chemist of Parke, Davis & Co., testified on behalf of the importer, that his “company put out in these glass containers or ampoules” 46 or 47 different varieties of medicated liquids; that an ampoule is a “container made of glass, predetermined specifically to contain a dose of medicine to convey it from the manufacturer to the consumer, which is subsequently to be destroyed”; that his company uses various types and shapes of ampoules and containers for various products. Aside from some other immaterial testimony, and the samples, this embraces the testimony offered on behalf of the importers in either the case at bar or the incorporated record. On the part, of the Government, an American chemist and manufacturer of glass of eight years’ experience, Herman A. Kimble, testified that he was familiar with the merchandise involved here and had manufactured and sold merchandise of that character. The witness then identified many offered exhibits, which are before us. Among these are many small glass containers, designated by him as shell vials, which have been made from glass tubing, some with rounded and some with flat bottoms, and some of which have necks fitted for corks and some of which have no such necks. Among these exhibits was one identified as No. 12, and designated by the witness as a “Rosenow vaccine ampoule.” It consisted of a flat-bottomed glass container, about 2 inches long by on&half inch in diameter, fitted with a perforated metal screw .top and a rubber diaphragm for hermetical sealing, and has been designated in its trade catalogues for 10 years by the Kimble Glass Co., with whom the witness was — 337 — connected, as such. The witness further testified, without objection, that all ampoules are vials, and that, in the trade, an ampoule is a type of vial hermetically sealed, either by heat and fusing or by the use of rubber. The witness then stated that he had been engaged in manufacturing and selling, throughout the United States at wholesale, goods such as those involved here. The followin'g question and. answer appear in the record: Q. I show you the official exhibits of the merchandise involved in these protests and ask you, from your trade experience in selling and manufacturing, whether or not the merchandise represented by the official samples of the merchandise here are included or excluded from the word “vial”? Witness. Absolutely included, sir. The witness further stated that all vials are made from cold glass tubing, re-treated, and are thus distinguished from bottles, which are made from molten glass blown in a mold or pressed; that an ampoule is a vial, the name ampoule simply describing the shape or usage of the container. Dr. Eugene it. Whitmore, a professor of bacteriology and pathology in Georgetown University Medical School, testified that he had had charge of the production of all vaccine used by the Army, Navy* and Public Health Service of the United States during the World. War; that, during that period, he purchased approximately 1,000,000' glass containers for medicines and vaccines and was familiar with the use of the terms "vials” and “ampoules”; that an ampoule is a vial and that the ofiicial exhibits are included within the term “vial”; that, in order to take care of the demand for sterile containers, this type of vial was developed; that some ampoules used by him held 25 c. c., or doses for 50 patients. The following question and answer appear in the record: Q. What does an ampoule mean? What is the meaning of the word “ampoule”? * * * Practically, what does it mean? — A. Practically, we meant a vial with a constricted neck, so we could seal it readily by fusing the top to avoid wasting the contents, or by putting a rubber stopper in that con-, stricted neck. He further testified that, in order to avoid waste, other types of' ampoules were developed which were sealed with corks. Pennock M. Way, second vice president of Arthur H. Thomas Co.* dealer in laboratory supplies, testified that he had bought and sold glass containers for merchandise throughout the United States in wholesale quantities and stated the following: Q. Do you know whether or not, Mr. Way, in the trade in the United States, whether the word “vial” has a definite, general, and universal meaning? — A. I would say so; yes. Q. I show you the official exhibits involved in this protest and ask you, from your commercial experience, whether or not the merchandise in that exhibit — 338 — would be included or excluded from the word “vial” as the same is known in the trade? — A. I would most certainly include it. Then in answer to inquiries by General Appraiser Waite, the following appears: Q. I would like to ask you a question-. Have you bought and sold in wholesale quantities in the United States? — A. Yes, sir. Q. Bought at wholesale what is called ampoules? — A. Yes. Q. Vials? — A. Yes. Q. Is there any difference between the definition, the dictionary definition or the common definition, of the word “vial,” known as in the trade, is there any difference between the term “vial” and the dictionary definition of the word “vial”? — A. I believe I could not quote the dictionary term fully, but I can see no reason for there being. Q. What is a vial, in your estimation? — A. A container of various forms, such as shown here by the exhibits here this morning; that is the way we know them and carry them in stock. Q. Does this embrace all the different styles of vials? — A. I would not say so; there might be some types of vials that are not here. Q. All you have to say is that it is a container? — A. It was a container for holding and transporting materials. Q. That would not cover it entirely, there might be many containers for holding and transporting material, that would not be vials? — A. Of course, there could be; yes. Q. That would not be quite definition enough; is that the best you can do?— A. It is for transporting in small quantities. You could specify an ampoule is generally something for transporting vaccine or serums, where a vial might almost have anything in it, either dry or liquid. Q. Does ampoule mean anything more to you than a vial? — A. It is a form of vial. It means a form of vial. Q. And your definition of a vial is, that it is something to contain and transport material? — A. That would cover an ampoule which is generally used for vaccines and serums. In addition, it is shown by documentary evidence that certain types of containers have been ordered from the Kimball Glass Co. as “ampoules” and that Exhibit 26 has been ordered as “vials,” and that the articles imported here, as well as Exhibit 12 hereinbe-fore mentioned, are listed by said company in its trade catalogue, as “ampoules.” We have dwelt at considerable length upon this testimony, in order to fully disclose whether the importer has carried the burden imposed upon him. We think this testimony, fairly considered, shows that these articles imported are commonly known to several of the witnesses who testify, as ampoules, but it wholly fails to show that they are not also known as vials'. The importers’ testimony totally fails to show any commercial designation, while, on the part of the Government, if the testimony offered may be held to show commercial designation, it shows that these imported articles are known in the trade as a type of vials called ampoules, and are in fact, commercially known as vials. Thus it will be seen that the — 339 — importers have not, by the evidence, in any way, overcome the presumption raised against them by the adverse classification oí the collector. The words “vial” and “ampoule” are thus defined by the principal lexicographers: Webster’s New International Dictionary, 1925— Ampul: F. Ampoule; 1. A small bottle; a phial. Vial: A small vessel for liquids; now, usually a small glass bottle, as for medicines or chemicals; a phial. Funk & Wagnall’s New Standard Dictionary, 1925— Vial: A’ small vessel, commonly of glass and cylindrical, narrow uniformly and in proportion to its height, fitted with a mouth to be closed with a stopper, and intended to hold liquids, especially liquid medicines; more widely, any bottle or vessel. Century Dictionary— Ampul: Early Mod. e. ampoule; a bottle, flask, vial. Vial: A vessel or bottle; esp., a small glass bottle used for holding liquids and particularly liquid medicines. New English Dictionary— Ampul: Arch. Forms; ampoule: A small bottle or flask; a phial. From a consideration of these definitions, it appears that an ampoule is a kind of vial. It will be observed that a vial is not defined, alone, as a bottle with a neck fitted for a removable stopper; the definition goes further and includes any small vessel, usually of glass, for the holding of liquids, whether it be in the shape of a bottle or in some other shape, and whether it be fitted for a removable stopper or intended to be closed by some other method. Thus it will be seen that not only is the classification by the collector not in opposition to any proof of commercial designation to be found in this record, but it is also in harmony with the ordinary and common meaning of the language employed in the statute, under which the goods imported have been classified. As to the third contention made, that these articles are not suitable for use and of the character ordinarily employed for the holding or transportation of merchandise, the record shows, beyond question, that such containers have been practically universally used to contain and transport a large number of medicinal and biological products running, as the record shows, into millions of packages. The products contained in them are generally bought and sold commercially, and hence they are, within the common meaning of the term, merchandise. Webster’s New International Dictionary, 1925: Merchandise n. 1. The objects of commerce; whatever is usually bought or sold in trade, or market, or by merchants; wares; goods; commodities. Merchandise is a term including all those things which merchants sell either wholesale or retail, as dry goods, hardware, groceries, — 340 — drugs, etc. In re San Gabriel Sav. Co., 95 Fed. 271 (273); see also State v. Holmes, 28 La. Ann. 765. But it is contended that the articles imported here are not ejusdem generis with the class of articles specifically named in said paragraph 217. If these articles are vials, then they are mentioned in the paragraph eo nomine, and the doctrine of ejusdem generis can have no application. This doctrine can only be invoked whenever a doubt arises as to whether a given article not specifically named is to be placed in a class of which some of the individual subjects are named. Overton & Co. v. United States, 2 Ct. Cust. Appls. 422; Morimura Bros. v. United States, 2 Ct. Cust. Appls. 181; United States v. Gen. Elec. Co., 4 Ct. Cust. Appls. 287; Burlington Blind Co. v. United States, 1 Ct. Cust. Appls. 374; United States v. Mescall, 215 U. S. 26. This brings us to the sole remaining question: Had there been, before the enactment of the Tariff Act of 1922, such a judicial construction of this or similar language in preceding acts as would exclude the articles imported here from the designation “vials,” so that the Congress shall be considered as having legislated in view of that judicial construction and as having approved the same? It is argued by appellee and found by the court below, that there had been such a construction; on the other hand, it is as strenuously contended by the Government that no such adjudication had been made. Two cases cited are particularly urged by appellees as decisive. The first is abstract 26537, 21 Treas. Dec. 220, known as the Kny-Scherer case, and decided under the tariff act of July 24, 1897. In that case the contest was between the application of paragraph 99 or paragraph 100 of said act. Said paragraph 99 provided for: 99. Plain green or colored, molded or pressed, and flint, lime, or lead glass bottles, vials, jars. * * * Paragraph 100 provided for: 100. Glass bottle's, decanters, or other vessels or articles of glass * * * and other blown glassware. The goods imported had been classified as “bottles or vials composed of molded or -pressed glass.” The court held they were dutiable as blown glassware. It will be seen the iásue there was relative to the method of manufacture. The other case is Abstract 45023, 41 Treas. Dec. 562, the Bernard, Judae & Co. case, decided under the act of October 3, 1913. The opinion filed in that case is as follows: Glass Ampoules for Vaccine.—Small vials for holding vaccines and serums, termed “ampoules,” consisting of clear or white glass without etching or ornamentation of anj? kind, classified at 45 per cent ad valorem under paragraph 84, tariff act of 1913, are claimed dutiable under paragraph 83, which provides for plain green or colored vials. — 341 — Opinion by Sullivan, G. A. From an inspection of the samples it was found that these are not plain green or colored vials and are therefore not within paragraph 83 as claimed. Abstract 26537 cited. Said paragraphs 83 and 84 provided: 83. Plain green or colored, molded or pressed, and flint, lime, or lead glass bottles, vials, jars * * *. 84. Glass bottles, decanters, and all articles of every description composed * * * of glass * * * blown. It is obvious that the issue here was not whether the articles were vials or not, because it is stated in the opinion they are vials; the disputed point seems to have been as to their color. Neither of the cases cited, therefore, can be considered as any prior adjudication of the issue involved here, and therefore neither can be held to be a judicial holding which must be taken as assented to by Congress when it enacted the Tariff Act of 1922. Attention is called by the court below in its opinion filed to the matter of Parke, Davis & Co., T. D. 39848, 44 Treas. Dec. 224. The issue in that case was whether the articles in question were properly classifiable as “biological, chemical * * * articles .and utensils,” under the first clause of said paragraph 218, or as “ articles * * * composed of glass,” under the fourth clause thereof. Furthermore, this case can not be said to have had any binding effect upon the Congress, so far as the Tariff Act of 1922 is concerned, as it was decided October 25, 1923. These are all the adjudged cases which have been called to our attention relevant to this issue. We are unable to gather from them anything to indicate that Congress must have legislated in the Tariff Act of 1922 with the idea in mind that the articles imported here had been judicially determined not to be vials. It follows that the correctness of the classification made by the collector has been in no way impeached, and the judgment of the court below should be, and is, reversed.