"It must, therefore, be conceded that Osborn did not, by maintaining possession for several years and putting valuable improvements thereon, preclude the Government from dealing with the lands as its own, and from conferring them on another party by a subsequent grant.

"On the other hand, it would not be easy to suppose that Congress would, in authorizing railroad companies to traverse the public lands, intend thereby to give them a right to run the lines of their roads at pleasure, regardless of the rights of settlers."

It is true, as suggested in Western Pacific Railroad Company v. Tevis, 41 California, 489, 493, that the condemnation proceedings named by the act of July 2, 1864, were in territorial courts, whereas Kansas at that time was a State. But undoubtedly the thought of Congress was the protection of an owner or claimant by condemnation proceedings and not in what courts those proceedings should be had.

Further, "this right of way through school sections had been accepted without challenge for twenty years" (31 Fed. Rep. 541). This indicated the general understanding, and was significant. The contrary appears here. The railway company not only did not disturb the possession of the settler for nearly forty years, but on the other hand purchased and paid him for a right of way through the tract.

We are of opinion that the case of Crier v. Innes, 160 U. S. 103, is, as respects the case at bar, inconsistent with that in the 31st Fed. Reporter, and must be held to have to that extent overruled it. We do not think that it would be profitable to cite the many other cases which touch the question before us more or less closely, or to seek to point out the differences between them and this, or to notice all the general expressions which are to be found in them.

We are of opinion that the Supreme Court of Kansas did not err, and its judgment is

Affirmed.

Statement of the Case.

215 U.S.

KOMADA & CO. v. UNITED STATES.

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE NINTH CIRCUIT.

No. 220. Argued November 29, 30, 1909.-Decided January 3, 1910.

The construction given by the Department charged with executing a tariff act is entitled to great weight; and where for a number of years a manufactured article has been classified under the similitude section this court will lean in the same direction; and so held that the Japanese beverage, sake, is properly dutiable under § 297 of the tariff act of July 24, 1897, c. 11, 30 Stat. 151, 205, as similar to still wine and not as similar to beer.

After a departmental classification of an article under the similitude section of a tariff law, the reënactment, by Congress, of a tariff law without specially classifying that article may be regarded as a qualified approval by Congress of such classification.

THIS case is before us on a writ of certiorari to the United States Circuit Court of Appeals for the Ninth Circuit. The question is the proper classification, under the tariff act of July 24, 1897, 30 Stat. 151, c. 11, of a Japanese beverage known as "sake." "Sake" is not named in that act, but §7 (p. 205), frequently spoken of as "the similitude section," reads as follows:

"That each and every imported article, not enumerated in this act, which is similar, either in material, quality, texture, or the use to which it may be applied, to any article enumerated in this act as chargeable with duty, shall pay the same rate of duty which is levied on the enumerated article which it most resembles in any of the particulars before mentioned; and if any non-enumerated article equally resembles two or more enumerated articles on which different rates of duty are chargeable, there shall be levied on such non-enumerated

215 U.S.

Argument for Petitioner.

article the same rate of duty as is chargeable on the article which it resembles paying the highest rate of duty."

In November, 1904, petitioner imported some sake at the port of San Francisco, and, following prior rulings, the collector, under the similitude section, held it similar to still wine containing more than fourteen per cent of absolute alcohol, and dutiable accordingly at fifty cents per gallon, under paragraph 296 (p. 174). The petitioner protested and claimed that it was either a non-enumerated manufactured article, dutiable at twenty per cent ad valorem, under § 6 (p. 205), or, by reason of similitude to ale, porter or beer, at twenty cents per gallon under paragraph 297 (p. 174). Both the board of general appraisers and the Circuit Court sustained the protest, feeling themselves constrained by the decision of the Circuit Court for the Southern District of New York (Nishimiya v. United States, 131 Fed. Rep. 650) and that of the Circuit Court of Appeals for the Second Circuit, (United States v. Nishimiya, 137 Fed. Rep. 396; S. C., 69 C. C. A. 588). On appeal, the United States Circuit Court of Appeals for the Ninth Circuit reversed the decision of the Circuit Court and sustained the classification made by the collector.

Mr. Thomas Fitch and Mr. W. Wickham Smith, with whom Mr. John M. Thurston was on the brief, for petitioner:

Under the similitude section of the tariff act the similitude must be substantial. Arthur v. Fox, 108 U. S. 125; Murphy v. Anderson, 96 U. S. 131.

In cases of doubtful classification of articles the construction is to be in favor of the importer. Powers v. Barney, 5 Blatchf. 202; Adams v. Bancroft, 5 Sumner, 384; Hartranft v. Wiegmann, 121 U. S. 609; Am. N. & T. Co. v. Worthington, 141 U. S. 468; United States v. Wiggleworth, 2 Story, 369; United States v. Davis, 54 Fed. Rep. 147; Matheson & Co. v. United States, 71 Fed. Rep. 394; Hempstead & Sons v. Thomas, 122 Fed. Rep. 538.

While the highest rate of duty will be imposed where the

Argument for Petitioner.

215 U.S.

similitude is equal, yet, in determining whether there is or is not an equality, the doubt will be resolved in favor of the importer. Tiffany v. United States, 112 Fed. Rep. 672; Re Guggenheim Smelting Co., 112 Fed. Rep. 517; United States v. Dana, 99 Fed. Rep. 433; Re Herter Bros., 53 Fed. Rep. 913; Mandell v. Seeberger, 39 Fed. Rep. 760. And see also United States v. Wotton, 53 Fed. Rep. 344; United States v. Schoverling, 146 U. S. 76; Von Bernuth v. United States, 146 Fed. Rep. 61; Hahn v. United States, 100 Fed. Rep. 635.

Methods of manufacture are to be considered in determining similitude. Weilbacher v. Merritt, 37 Fed. Rep. 85; Greenleaf v. Goodrich, 101 Fed. Cas. 1168; aff'd 101 U. S. 278.

There is no force in the suggestion that the decision in the Woozens Case, G. A. 2786, establishes any rule of construction. That rule can only be invoked after long continued practice in the same case. Merritt v. Cameron, 137 U. S. 542; United States v. Johnson, 173 U. S. 363, 377; Cross v. Burke, 146 U. S. 82, 87.

The doctrine of commercial designation does not apply, and if it did the weight of evidence is against the Government.

That sake is not a spirituous beverage is shown by numerous decisions, six of state, two of Federal, courts besides one of this court. The testimony of five importers and two Government appraisers shows that sake is not a wine by commercial designation. Statistics of Japanese immigration show that the commercial world has never acquiesced in its classification as a wine. The rulings of the internal revenue department show that there it has for years been classed and taxed as a beer. The customs laws show that the quantity of alcohol in a beverage is not the test by which it is classified. The evidence conclusively shows that in material from which made, in process of manufacture, in chemical composition, in stability, in taste and in manner of use there are wide dissimilitudes between sake and still wine.

The sole similitude between wine and sake is in alco

215 U.S.

Argument for the United States.

holic strength. The General Board of Appraisers, the United States Circuit Court for the Southern District of New York, the United States Circuit Court for the Second Circuit and the United States Circuit Court for the Northern District of California all decided that the one similitude in alcoholic strength was not sufficient as against the many dissimilitudes to establish a substantial similitude between sake and wine. The United States Circuit Court of Appeals for the Ninth Circuit decided that the one similitude of alcoholic strength overcomes all dissimilitudes.

Mr. J. C. McReynolds, Special Assistant to the Attorney General, with whom The Attorney General was on the brief, for the United States:

The action of the collector is presumptively correct and the burden is on the importers to establish their contention; the judgment of the Circuit Court of Appeals should be approved, therefore, even though this court should think the weight of evidence against that conclusion. Arthur v. Unkart, 96 U. S. 118; Earnshaw v. Cadwalader, 145 U. S. 247, 262; Erhardt v. Schroeder, 155 U. S. 124; United States v. Ranlett, 172 U. S. 133, 146. Similarity is a question of fact. Herman v. Miller, 127 U. S. 363, 370.

As this classification has existed since 1894 no hardship whatever has been imposed on the importer. United States v. Hermanos, 209 U. S. 337. And see Robertson v. Downing, 127 U. S. 607; United States v. Healy, 160 U. S. 136; United States v. Falk, 204 U. S. 143; Hill Bros. v. United States, 151 Fed. Rep. 476; Morningstar v. United States, 159 Fed. Rep. 287.

The similitude clause has long been a part of tariff legislation. See tariff act of 1842 and all subsequent ones. Stuart v. Maxwell, 16 How. 150, 160. As to the construction of that clause see Arthur v. Fox, 108 U. S. 125; United States v. Roessler Co., 137 Fed. Rep. 770; Greenleaf v. Goodrich, 101 U. S. 278, 283; Weilbacher v. Merritt, 37 Fed. Rep. 85; Mandell v. Seeberger, 39 Fed. Rep. 760; Keary v. Magone, 40 Fed.