In the opinion of this court delivered at this term in Schmidt v. Badger, [1 SUP. CT. REP. 530,] the foregoing provision as to a duty on 'glass bottles or jars filled with articles not otherwise provided for,' was under consideration. It was held that the duty of 30 per cent. ad valorem was not a duty on the articles contained in the bottles and on the bottles also, and was not a duty on the contents of the bottles, but was a duty merely on the bottles, leaving the articles imported in the bottles to be subject to such duty, if any, as was elsewhere imposed on them. If the contents were ale or beer, the duty on the ale or beer was 35 cents per gallon, and the duty on the bottles was 30 per cent. ad valorem. If the contents were natural mineral water, or mineral water not artificial, the water was free and the duty on the bottles was 30 per cent. ad valorem. The duty on the bottle was independent of the duty on its contents, and was chargeable even though the contents were free. The statute does contain any provision that the bottle shall be free when its contents are free, while it does contain a distinct provision that there shall be a duty of 30 per cent. ad valorem on bottles, not otherwise provided for, filled with articles. The mineral water, not artificial, is free. By Schedule M of section 2504, artificial mineral water is made dutiable thus: 'For each bottle or jug containing not more than one quart, three cents, and, in addition thereto, 25 per centum ad valorem; containing more than one quart, three cents for each additional quart, or fractional part thereof, and, in addition thereto, 25 per centum ad valorem.' Thus, as to artificial mineral water, the water and the bottles containing it are both charged with duty, while as to natural mineral water it is free, and the bottles containing it are dutiable.
By section 13 of the act of June 30, 1864, (13 St. at Large,) 214, the provision as to a duty 'on mineral or medicinal waters, or waters from springs impregnated with minerals,' was as follows: 'For each bottle or jug containing not more than one quart, three cents, and, in addition thereto, 25 per centum ad valorem; containing more than one quart, three cents for each additional quart, or fractional part thereof, and, in addition thereto, 25 per centum ad valorem.'
By section 5 of the act of June 6, 1872, (17 St. at Large, 236,) mineral waters, not artificial, were made free on and after August 1, 1872. The act of 1872 (section 46) repealed all prior inconsistent provisions. From this it is argued that after the act of 1864 was passed, prior provisions, which might have embraced mineral water bottles, were annulled, and that, as the act of 1872 repealed the provisions of the act of 1864 as to such bottles, and made mineral waters, not artificial, free, there was no law in force imposing a duty on the bottles containing such free waters. The answer to this view is that the duty imposed by the act of 1864 was a duty on the article composed of bottle and water, the specific duty and the ad valorem duty being each of them a duty on the bottle and the water considered as one article. When the water was made free, the whole provision as to a duty on the aggregated bottle and water disappeared, leaving existing applicable general provisions to apply to the bottle.
The provisions so existing after the act of 1872 took effect were those found in the acts of 1861 and 1864, and transferred into Schedule B of section 2504 of the Revised Statutes, and applied in this case. They were in force as express enactments when the importation in this case was made. Schmidt v. Badger, ubi supra.
The judgment of the circuit court is reversed, and the case is remanded to that court, with directions to grant a new trial.
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This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).
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