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Opinion of the Court.

spirits are a component part of chief value, not specially enumerated, &c. The seventh is that heretofore mentioned in reference to cordials, liquors, &c. The eighth provides that no lower rate of duty shall be collected or paid on brandy, spirits and other spirituous beverages, than that fixed by law for the description of first proof, but it shall be increased, &c. The ninth imposes a duty on bay rum, or bay water, whether distilled or compounded. The tenth on ale, porter, and beer. And the eleventh on ginger ale or ginger beer.

The facts that ginger ale and ginger beer are not intoxicating, and that bay rum and bay water would scarcely be called beverages, show that there is little significance to be given to the use of the word “liquors” in the title of this schedule. The multitude of articles upon which duty was imposed by the tariff of 1883 are grouped in that act under fourteen schedules, each with a different title, and all that was intended by those titles was a general suggestion as to the character of the articles within the particular schedule, and not any technically accurate definition of them. It evidently seemed to Congress unnecessary to create and entitle a separate schedule for the matters named in these last three paragraphs, and they fall more naturally under the descriptive title “liquors,” than any other used in the act. This takes away largely the force of any argument that can be drawn from the word in the title.

Again the proviso is found in the second paragraph. The natural limitation of a proviso is to those things that have been previously mentioned. Before the proviso, there are named only wines - sparkling and still; so any word of general description used therein would, in the absence of satisfactory reasons to the contrary, be taken to refer to those articles, to wit, wines. But “wines” being used in this proviso, the subsequent terms, liquors, cordials and distilled spirits, must mean something else. As there are sereral words of description, apparently beverages of different character were intended by each. If, for instance, in any clause we should find the two terms “wines” and “distilled spirits," we should believe that some different article was intended by each term. So, if we should find the phrase "wines and liquors,” or “wines or

Opinion of the Court.

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liquors,” is it not a proper inference that some other kind of beverage than wine was intended by the word “liquors ” ? Obviously, as it seems to us, the word is used here in a special, rather than a general sense; and when so used in a special sense, it is almost invariably used to define spirituous rather than malt liquors. Seldom is it used alone to define malt liquors, as contradistinguished from those that are spirituous and distilled.

In short, ive think it may be laid down as a general proposition, that where the term “liquors" is used in a special sense, spirituous and distilled beverages are intended, in contradistinction to fermented ones; that the use of the four words in this proviso, in the order in which they are arranged and in the place in which the proviso is found in the schedule, indicates that “liquors” is used in a special rather than in a general sense; and the conjunction of the words “liquors and “cordials," as found in another paragraph, and as interpreted by the past history of that particular part of the tariff legislation, shows that “liqueurs ” was intended by “liquors in this clause.

But it is further objected by counsel for the government that there was no proof that the beer was sound when purchased. Generally speaking, it may be said that a sound price implies a sound article. The bill of exceptions shows that “it further appeared from the invoices and the testimony of the liquidating clerk that the cost of this beer in Germany, the place of export, was equivalent to 17,36 cents per gallon in the money of account of the United States.” How the invoices read, and what was the testimony given by the liquidating clerk, is not shown; the result only is stated when it said that it appeared that the cost of this beer was 17766 cents per gallon. As most of the beer on its arrival in New York was thrown into the street as worthless, and only a little of it sold, and that at three cents per gallon, it may be assumed that that was a sound article for which the much greater price was paid at the place of export. Evidently the testimony in all these respects was considered sufficient, for the Circuit Judge, as appears from the report in the Federal

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Opinion of the Court.

Reporter, 38 Fed. Rep. 916, disposed of the case by saying, “As this case turns upon the construction of the term liquors in the proviso of Schedule H, paragraph 308, I shall direct a verdict for the defendant." The judgment will be reversed, and the case remanded for a

new trial.




No. 108. Argued and submitted January 6, 1893. – Decided May 10, 1893.

A claim by a person asserting title in land under tide water, for damages

for the use and occupation thereof by the United States for the erection and maintenance of a light-house, without his consent and without compensation to him, but not showing that the United States have acknowledged any right of property in him as against them, is a case sounding in tort of which the Circuit Court of the United States has no jurisdiction under the act of March 3, 1887, c. 359.

The case is stated in the opinion.

Mr. J. Alexander Preston and Mr. Alexander Preston, for plaintiff in error, submitted on their brief.

Mr. Attorney General for defendants in error.

MR. JUSTICE Gray delivered the opinion of the court.

This was a suit, brought November 1, 1888, in the Circuit Court of the United States for the District of Maryland, under the act of March 3, 1887, c. 359, by Nicholas S. Hill, a citizen of Maryland, against the United States, for the use and occupation of land for a light-house.

The petition alleged that the plaintiff, since February 14, 1873, had been seized and possessed in fee simple of certain


Opinion of the Court.

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tracts of land in Baltimore County in the State of Maryland, fronting upon Chesapeake Bay, (as shown upon a plat, and specifically described in a deed of that date to him from Thomas Donaldson, copies of both of which were annexed to the petition,)“ with all the riparian rights attached thereto under the law of this State;" that, since his acquisition of said land and rights, “a valuable part thereof has been used and occupied by the United States government” for “the erection and maintenance of a light-house, known generally as the Miller's Island light-house,” “ without any compensation to your petitioner for such use and occupation, and without the consent thereto of your petitioner or his predecessors in title;" and that “by the use and occupancy by the government as aforesaid of his property he has been prevented from using the same within the limits above mentioned, and from erecting buildings thereupon, and using the same for fishing and gunning purposes." The plaintiff “claims, as damages for the use and occupation of his said property as aforesaid, the sum of $9999 from November 1, 1885, until November 1, 1888, and prays the judgment and decree of this honorable court thereupon on the facts and the law.”

The United States pleaded three pleas :

1. A former judgment. The plaintiff replied that there was no such judgment; and the United States joined issue on the replication.

2. “That the land referred to and described in the petition filed in this cause is submerged land and part of the bottom of the Chesapeake Bay, one of the navigable waters of the United States, and that the said defendant, under the law, for the purposes of a light-house, has a paramount right to its use as against the plaintiff or any other person.” To this plea the plaintiff demurred.

3. “That the defendant did not commit the wrongs alleged." The plaintiff joined issue on this plea.

On June 22, 1889, the Circuit Court overruled the demurrer to the second plea, and gave judgment thereon for the United States, with costs, and filed a written opinion, which is published in 39 Fed. Rep. 172.

Opinion of the Court.

On June 27, 1889, the Circuit Judge filed findings of facts and conclusions of law, which are copied in the margin."

1 FINDINGS OF FACTS. 1. I find that copies of the plaintiff's petition were, in compliance with the requirements of the act of March 3, 1887, c. 359, duly served on the United States district attorney and the Attorney General of the United States, and said law in all respects complied with.

2. I find that the plaintiff, since February 14, 1873, has been seized and possessed in fee simple of the tract of land described in these proceedings, and known as Miller's Island, and of all the riparian rights attached thereto under the laws of the State of Maryland.

3. I find that no part of the fast land included in the deed of the plaintiff has been used or occupied by the United States; but that a site for the rear range light of Craighill channel, situated about two hundred yards from the shore line of the plaintiff's land, has been occupied and used by the United States; that the said site is submerged land in the Chesapeake Bay, one of the public navigable waters of the United States, and within the ebb and flow of the tide, and in water about two feet deep at low tide.

4. I find that Craighill channel is a channel in Chesapeake Bay, constructed by the United States, and used by ocean vessels in their approach to the port of Baltimore; and that the light-house constructed by the United States in the year 1874 on the site in question is an important and necessary aid to the navigation of said channel.

5. I find that the United States took possession of said site for the purpose of building the light-house in question, without condemnation, or the payment of any compensation to the plaintiff or any other person, in the year 1874.

6. I find that the land of Miller's Island, belonging to the plaintiff, was heretofore used and is chiefly valuable on account of the gunning for geese, swan and ducks, and for the fishing privileges with nets; and that since the erection of the light-house adjoining the shore the value of the land has decreased greatly, and that the plaintiff's testimony tended to show that said decrease is due to the erection of said light-house, and that the island formerly rented for $3000 per annum, but since the erection of the light-house the rent has decreased to $500 per annum.

CONCLUSIONS OF Law. That the legal title to the site of the light-house in question is in the State of Maryland, subject to the riparian rights of the plaintiff under the act of 1862, c. 129, of the laws of Maryland.

That under article 1, section 8, of the Constitution of the United States, which provides that Congress shall have the power “to regulate commerce with foreign nations and among the several States and with the Indian tribes,” both the title of the State of Maryland and the riparian rights of the plaintiff are subject to the paramount right of the United States to use

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