You state that a question has 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 French ambassador contends that "cordials" were and are comprehended in the clause in question.

The French ambassador admits the distinction made in the two paragraphs of the tariff act between "brandy and other spirits," on the one hand, and "cordials" on the other; but claims that this distinction "disappears" in section 3 of said act as a result of the omission from that section of the words "and not specially provided for," as used in paragraph 289. There is a further difference of opinion as to certain estimates of duty considered in the negotiations.

Since the receipt of your letter the Department has accorded a hearing to the secretary of the French embassy, at which time the subject was fully discussed, and the most careful consideration has been given to the views of the ambassador.

Section 1 of the tariff act requires that the rates of duty prescribed in the schedules and paragraphs of said act shall be levied, collected, and paid upon all imported articles mentioned therein, unless they are otherwise specially provided for in said act. Paragraph 289 imposes duty at the rate of $2.25 per proof gallon on "brandy and other spirits manufactured or distilled from grain or other materials, and not specially provided for in this act." Section 3 reduces the rate to $1.75 on "brandies and other spirits manufactured or distilled from grain or other materials." The treaty provides that the rate shall be $1.75 "on brandies or other spirits manufactured or distilled from grain or other materials." This provision of the treaty is identical with that in section 3, and differs from paragraph 289 only in the substitution of the word "or" for "and" after brandy. There can, therefore, be no question as to the suspension of the operation of paragraph 289 with respect to merchandise therein named imported from France during the continuance of the treaty; but there the suspension stops. The treaty does not affect paragraph 292. The articles therein enumerated are not "otherwise specially provided for," within the meaning of section 1. Duty must, therefore, be imposed on such articles at the rate prescribed in said paragraph 292.

The omission of the words "and not otherwise provided for" from section 3, and from the treaty, does not enlarge the scope of the brandy clause of the treaty. Even if those words did not remain in paragraph 289, and equivalent words were not in section 1, cordials, liqueurs, etc., would still be subject to duty at the general rate by reason of their specific designation in paragraph 292. This is not a new construction. The courts have repeatedly held that where Congress has designated an article by a specific name, and imposed a duty upon it, general terms in the same act, though sufficiently broad to comprehend such article, are not applicable to it. The following are some of the cases in which this principle has been enunciated by the Supreme Court: Homer v. Collector, 1 Wall., 486; Movius v. Arthur, 95 U. S., 144; Arthur Stephani, 96 id., 125; Arthur . Rheims, id., 143; Ferguson v. Arthur, 117 id., 482; Robertson v. Glendenning, 132 id., 158; Am. N. and T. v. Worthington, 141 id., 468; Bogle v. Magone, 152 id., 623. In Arthur v. Rheims the court 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 manu

facture of cotton, but specifically, eo nomine, as artificial flowers. It has been held in many cases, as that of almonds and dried fruits, 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 that artificial flowers are not entitled to be classed as a manufacture of cotton, which is entitled to the reduction provided for by the act of 1872.

However desirous this Department might be of concurring in the opinion of the French ambassador, it could not, in view of the foregoing considerations, decide otherwise than that the articles specified in paragraph 292 of the tariff act are not included in the provision for brandy or other spirits in the treaty in question.

Respectfully, yours,

Mr. Day to Mr. Cambon.

L. J. GAGE, Secretary.

No. 62.1

DEPARTMENT OF STATE,
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,

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 "randy 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.

FR 98- -20

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.,

WILLIAM R. DAY.

GERMANY.

FRUIT OF THE UNITED STATES IN GERMANY.

Mr. Robertson to Mr. Uhl.

CONSULATE OF THE UNITED STATES,

Hamburg, October 29, 1894.

SIR: I have ascertained, in a semiofficial way, that a movement is now being set on foot by the Imperial German Government, and is already engaging the attention of the authorities of this city, and, I presume, of the other cities of the Empire, looking to the complete exclusion, under the imperial law regarding the traffic in articles of food, etc., of May 14, 1879, of dried and evaporated apples from the United States, which are found on arrival in Germany to contain more than a specified quantity of metallic zinc, arising from the drying of the apples on zinc plates or frames.

Each locality determines for itself what quantity of zinc the apples consumed therein can contain without being detrimental to health; but the tendency would seem to be to exclude the fruit when found to contain any zinc whatever. The laws of Hamburg prohibit the sale or offering for sale of apples having more than 0.01 per cent of metallic zinc. By metallic zinc is meant the actual amount of the metal left after separating the chemical combination of zinc and the acid of the apples.

For a number of years dried apples, in the form of slices, pieces, or rings, have been imported into Germany from the United States, and it has been observed that this fruit often contains zinc in such quantities that, according to medical authority, the consumption of the same may prove detrimental to health. The German authorities have, in consequence, since about five years ago, endeavored by every possible means to prevent the importation of American dried fruits containing zinc, and to bring about the judicial punishment of the venders of such merchandise.

In many cities--as, for instance, Hamburg-large quantities of dried American apples containing zinc have been confiscated by the police authorities or forcibly reexported. The courts have, in many cases, unequivocally decreed that the sale of dried apples containing zinc must be regarded as an offense against the German food law, in so far as the consumption of articles of food containing zinc shall be liable to injure human health.

The opinion of the medical authorities regarding the contents of zinc of the dried American apples is that the smallest quantities of zinc may lend articles of food qualities detrimental to health.

Of late, the control of dried American apples in Germany has become more rigid, on account of an appeal of the German chancellor to the federated governments, requesting them to instruct the respective authorities to supervise the traffic in these goods; to have samples