Sterling Cider Co. v. Casey

MORTON, District Judge. The principal question is whether sweet cider is taxable as a “soft drink” under Revenue Act of 1918, § 628a (40 Stat. 1116 [Comp. St. Ann. Supp. 1919, §■ 6161%.d]), which, with the corresponding section of the act of 1917 (40 Stat. 312), is copied in the margin.1 [886] The term “soft drinks” is, I believe, of comparatively recent origin. It probably came into use as beverages composed of carbonated water or still water and fruit syrups became commonly sold, and was used to distinguish such prepared beverages from those which were of alcoholic character. It connotes compounding or manufacture. Cider has been known for centuries. It means, when used without qualification, the pressed-out juice of apples. It was a common beverage long before anybody ever heard of “soft drinks.” It is a thing sui generis; I do not think that it would ever be referred to in common speech as a “soft drink.” If the expression “other soft drinks” does not bring under the tax every nonalcoholic beverage — which the government does not contend — I do not think that it should be held to include such a well-known and distinctive thing as cider. This conclusion is, I think, somewhat strengthened by the fact that “unfermented grape juice” is specifically mentioned. With the reasons which led Congress to tax that, and not to tax cider, we have nothing to do. The word “other” refers, it seems to me, to manufactured or compounded beverages like those which are mentioned just before it, and which are customarily sold in closed bottles. See Warren v. Peabody, 8 C. B. 80, S. C., 19 R. J. C. P. 43. The exact question before me was very carefully considered by the Court of Appeals for the Second Circuit and decided adversely to the government’s contention. Monroe Cider Vinegar Co. v. Riordan, 280 Fed. 624. That decision carries great weight and should be followed, unless demonstrably erroneous, which, for the reasons indicated, seems to me not to be the case. Judgment for the plaintiff. Footnotes [1] “Sec. 628. That there shall be levied, assessed, collected, and paid in lieu of the taxes imposed by section 313 ® * * of the Revenue Act of 1917— “(a) Upon all beverages derived wholly or in part from cereals or substitutes therefor, and containing less than one-half of one per centum of alcohol, sold by the manufacturer, producer, or importer, in bottles or other closed containers, a tax equivalent to 15 per centum of the price for which so sold; and upon all unfermented grape juice, ginger ale, root beer, sarsaparilla, pop, artificial mineral waters (carbonated or not carbonated), other carbonated [886] waters or beverages, and other soft drinks, sold by the manufacturer, producer, or importer, in bottles or other closed containers, a tax equivalent to 10 per centum of the price for which so sold. * * * ” Act Oct. 3, 1917, § 313: “That there shall be levied, assessed, collected, and paid— ********** “(b) Upon all unfermented grape juice, soft drinks or artificial mineral waters (not carbonated), and fermented liquors containing less than one-half per centum of alcohol, sold by the manufacturer, producer, or importer thereof, in bottles or other closed containers, and upon all ginger ale, root beer, sarsaparilla, pop, and other carbonated waters or beverages, manufactured and sold by the manufacturer, producer, or importer of the carbonic acid gas used in carbonating the same, a tax of 1 cent per gallon. * * * ”