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gress had meant the date of the receipt of the ore at the port of entry, would it not have used the words "the date of importation," which are used elsewhere in this section?

If possible, the law should be construed so as to treat all persons engaged in smelting imported ore alike, and this can only be done by computing the six months period from the date of the receipt of the ore at the smelter. To construe the law otherwise, to take the date of arrival at the port of entry as the date of the receipt of the ore, is to discriminate in favor of smelting establishments located near ports of entry as against those located in the interior. That Congress had in mind the existence of smelting establishments located in the interior clearly appears from the provision for the transportation of ore in bond to such establishments.

Respectfully,

JOHN K. RICHARDS,
Acting Attorney-General.

The SECRETARY OF THE TREASURY.

CUSTOMS DUTIES-CHAMPAGNE-MAGNUMS.

In determining the rate of duty to be imposed on champagnes, wines, and other liquors under the tariff act of July 24, 1897 (30 Stat., 174), paragraph 295 of that act should be read in conjunction with paragraph 296. The former paragraph fixes the rate of duty to be imposed upon all wines included within the class therein named, when imported in legal packages; while the second proviso of the latter paragraph determines the rate of duty on all wines and other liquors when imported in other than legal packages.

"Magnums" are only bottles of an especially large size, and are as clearly embraced in the expression "bottles or jugs" in the second proviso of paragraph 296, as in the expression "other vessels" in paragraph 295.

The word "wines" as used in the second proviso to paragraph 296, being used without limitation, the provisions of that paragraph are applicable to champagnes, notwithstanding the special champagne provisions contained in paragraph 295.

The proper duty to be collected upon the magnums involved in this inquiry, is a duty of $8 for each magnum, without any excess duty, but with the statutory duty added for the bottle, as if imported empty.

DEPARTMENT OF JUSTICE,

March 19, 1900.

SIR: Your communication of March 8, 1900, transmits a letter from the Acting Auditor for the Treasury Department, with a warehouse entry from Puget Sound and other papers relating to an importation of two double magnums of champagne containing 1 gallon each, and each separately packed in a case. You inform me that each case of one double magnum or bottle was assessed for duty at $8, as though it contained 12 bottles, and at the rate of $2.50 per gallon on the excess of 3 quarts in each bottle, in accordance with paragraph 295 as read in conjunction with the second proviso of paragraph 296 of the act of July 24, 1897.

You ask for an expression of my views as to the scope and operation of these paragraphs upon the question whether "paragraph 295, wherein provision is made for champagne and all other sparkling wines,' should be read independently of or in conjunction with paragraph 296, which relates to 'still wines, etc., particular reference being had to the second proviso thereof, in which the manner of packing 'wines, cordials, brandy, and other spirituous liquors,' etc., is prescribed." And upon the question whether "if the proviso in question be held applicable to paragraph 295, the duty on the quantity in excess of 1 quart at the rate of $2.50 per gallon should be estimated on the actual quantity contained in the bottle imported in excess of 1 quart, or upon a fictitious or constructive excess computed on the capacity of a dozen bottles of the size of the one imported." Paragraph 295 of the act of 1897 taxes at $8 per dozen champagne and all other sparkling wines in bottles containing not more than 1 quart and more than 1 pint, and at less rates in bottles of smaller capacity, and then provides: "In bottles or other vessels containing more than one quart each, in addition to $8 per dozen bottles, on the quantity in excess of 1 quart, at the rate of $2.50 per gallon; but no separate or additional duty shall be levied on the

bottles."

The language of paragraph 296 applies only to still wines and other liquors specifically mentioned in the first lines 19395--VOL 23-02- -4

thereof, until the provisos are reached. The first proviso is not now involved. The second proviso, so far as we are concerned with it at present, is as follows:

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* * "Wines, cordials, brandy, and other spirituous liquors * imported in bottles or jugs shall be packed in packages containing not less than one dozen bottles or jugs in each package, or duty shall be paid as if such package contained at least one dozen bottles or jugs, and in addition thereto duty shall be collected on the bottles or jugs at the rates which would be chargeable thereon if imported empty."

*

*

In reply, I have the honor to state at the outset that I think there is no doubt that "magnums" are only bottles of an especially large size, and are as clearly embraced in the expression bottles or jugs" in the second proviso of paragraph 296 as in the expression "other vessels" in paragraph 295 (see definition of "magnum" in Standard and Century dictionaries); and I have no doubt that the first word in the quoted portion of the second proviso being "wines,” without limitation, the provisions thereof are applicable to champagnes, notwithstanding the special champagne provisions, complete under ordinary circumstances, of paragraph 295.

The assumption of paragraph 295 is that the bottles or other vessels shall be in a legal package of not less than a dozen bottles, and in that condition the quantity in excess of 1 quart in the separate bottles shall be taxed at the rate of $2.50 per gallon in addition to the rate per dozen; and no separate or additional duties shall be levied on the bottles. Where, however, any wine is packed in packages containing less than a dozen bottles, duty must be paid as if the package contained at least 1 dozen bottles, and, in addition, duty shall be collected on the bottles at the rates chargeable if imported empty. In short, paragraph 295 applies to legal packages of champagne, and when packages of champagne as well as of other wines are not packed in accordance with the requirements of the law, then the second proviso of paragraph 296 applies the additional duty, or the penalty-if it is to be so regarded. I therefore answer your first question by stating that in my opinion paragraph 295 should be read in conjunction with the second proviso of paragraph 296.

The real question, however, is as to the effect to be given to the second proviso when read in conjunction with paragraph 295. It evidently requires the imposition of duty upon a package containing less than a dozen quart bottles, or bottles of a larger capacity, at what may be called the standard rate for 12 bottles of such sizes--namely, $8which was the rate properly assessed in the present case upon each package containing one double magnum. But does the law, which recurs now to the concluding portion of paragraph 295, require the excess duty to be levied unless there is an actual excess in quantity over that contained in a dozen quart bottles-namely, 3 gallons? Must the excess duty be levied on the actual quantity in excess of 1 quart in each bottle of larger size, although the total contents of the bottle or bottles in the package may not exceed 3 gallons; or on what you have termed the fictitious or constructive excess, based either on the assumption that the lacking number of bottles, so to speak, are quarts as a supposed standard of capacity, or, on the other hand, are of the size of the one actually imported? I think the law does not compel either one of these three alternatives. It is my opinion that when the duty of $8 has been levied on a package of less than a dozen bottles of champagne of the quart size or larger, as the statutory tax or penalty on an illegal package, the requirements of the law have been fully satisfied, unless, irrespective of the number of bottles, as less than a dozen, or of the size thereof, as greater than quarts, there is in all a larger quantity of wine in the package than 3 gallons, the contents of a dozen quarts. In the case of double magnums the 88 rate, therefore, would carry a package containing three bottles, and the taxing of excess per gallon would attach if the package contained four or more double magnums. The excess duty would apply in any case in which there was a quantity in the package in excess of 3 gallons, whatever the size of the vessels larger than quarts, for of course there might be such packages of less than a dozen bottles in which not all the containers were double magnums or of one size.

Consequently, in this case the proper rate of duty on each package appears to be $8, without any excess duty, but with

the statutory amount added for the bottle as if imported empty, because, as the second proviso of paragraph 296 applies (with the restricted operation now set forth), there appears to be no question that the concluding clause thereof is applicable, notwithstanding the concluding clause of paragraph 295.

I speak of the "restricted operation" which my construction gives the statutes before us, because I am aware that in Syn. Dec., 15516 and 17487-G. A., 3626, regarding spirituous liquors under the similar provisions of the act of 1894, it is held that the constructive or estimated excess should be taken into account and be computed on the basis of a dozen bottles of the size of the one imported. But the rule that packages of less than a dozen bottles should be taxed as if they contained a dozen bottles first appeared in the act of 1894, and I am not of opinion that the departmental construction has been so long continued or become so fixed as to establish the proper construction of the law.

Decision 21202, which arose under the act of 1897, does not affect this case, because it merely decided that an importation of two cases, each containing six magnum bottles of champagne, which were fastened together by wooden straps so as to constitute one package, was properly packed under paragraph 296; but the decision suggests that it might be impracticable to pack in legal packages bottles of abnormal

size.

What I have said sufficiently answers your second question, and a categorical answer would not be apt, especially for the reason that you do not submit therein, as another possible alternative, the conclusion which I have reached.

Finally, I will restate this conclusion as follows: In my opinion it gives due effect both to paragraph 295 and to the second proviso of paragraph 296 to hold that when the importer in such a case as the present pays $8 per package, he has paid the required duty on any quantity of champagne contained therein up to three gallons, whatever may be the condition of the package respecting the number of bottles therein being less than 12, or respecting the capacity thereof being larger than quarts.

It is true that paragraph 295 applies the excess duty,

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