# Reply Brief of PlantiffPetitioner — McCormick & Co. v. United States > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA04386419_0895%3A4 ## Record - **Collection:** Supreme Court brief - **Document type:** Reply Brief of PlantiffPetitioner - **Published:** January 1, 1959 - **Citation:** 360 U.S. 916 ## Text on | aes ( FILE COPY... [SE=Er FINED JUN 10 195% JAMES. R BROWNING, Cle _ —> aan = “pane Court of the Binited States Octowen Trey 195s. Kg No. 900. : j . McCORMIOKR & COMPANY, INCORPORATED, “: } . Plaintiff Petitions e. P “adeust . UNEPFED STATES, se hee sponds nf. c ON PRitttoN FOR A WRES OF CRRTIORYEI — REPLY BRIEF'OF PLAINTIFF-PETITIONER. e ‘ : ; as ‘ ae Siwsin ie: | Ul fesernne op fear Plreate PP bitianer, \ tics sad Post Oflive Addrees j Io Broad Street, * Por trophy oof) Miarabecttaen New York. a. NOY ro, Anneort & Meneoan.® i a ‘rid. Prevres, | | is, Q | »? ® . ‘ Sreppanp Bo toray, ; "= Ttietsdes © Lap, p Jou Cirtwremaik Abpye lye. ‘ » OOF Crmnsel \ INDEX. * = —— Pornt I.—Additional reasons specially applicable to . judgments of the Court of Claims why the writ shotld be granted under this Court’s supervisory powers PAGE A.—The lower Court’s misapprehension of the : real issue and the insufficiency cf its findings to suppoft its conclusions which produced conflict with this Court’s decisions and war- rants granting of the writ B.—The lower Court’s fundamegtal mistake as | to the parties intended bygthe statute to receive the benefit of the drawback which warrants review by this Court........................ C.—The lower Court’s basic miseo _ the nature of a drawback which J ms; : Kk Re oS Te _ Chapter 26 to which the Court below resorted in pari materia. See specifically the decision of this Court in See- : . berger v, Castro, 153 U. 8. 32, 36. In fact the Government . in its brief below conceded that the language of the Section °2j is plain and unambiguous (Defendant’s Brief in Coat of Claims p. 22). For both, these reasons resort | to such. defini- tion is. re illegitimate. , In addition to these errors of statutory construction . the definition on which the Opinion relies* is by its express. _terms limited to Chapter 26, the statate in which it is an found—*‘within the true intent and meaning of this chap- , ter’. Emphasis added. (Section ee. quot | at p. eS *. of the Opinion.) ~ sire ‘The definition, further, on which the Cent relied i is con-- tained in Chapter 26 which is a general statute. Chapter 27 in@hich the applicable Section 3250(1): is. found is, on the other hand, a special statute limited to specific, nar- rowly restricted uses of distilled spirits-and dealing with | its special subject matter in a more detailed way» Undet ; well recognized rules of statutory construction the provi- sions of such a general act are under such circumstances not controlling i in interpreting those’ of such a special act. MacEvoy v. U. S., 322 U.S. 102, 107. Such is particularly the case where, as‘here, other parts of the special statute (in contrast with the part. in which the secticn here in question | - is contained) ‘embod¥ specific provisions reading into such _ _viher parts the provisions of the noon taxing statutes , (Petition p. 11). ese - ‘Farther, what is in fact a mere definition of a. -partieu- : -lar material thing contained in, and expressly restricted _. ©The other défipition on which the: Court relied, Section 3124 (a) (1), quoted on the same page.of its Opinion, is merely tauto- logieal awd refers one Back to the previous definition which is~- expressly limited to Chapter 26. ; : ; As to, a different and a general statute is surreptitiously employed by the decision below to interpret the meaning in another and a special: statate; not only: of: the thing itself, but ‘of “an operation performed upon it, ie., pro- | .° duction of that thing.. This error is the’ more fatal because -- neither statute contains ‘any definition af production; nor . * do the Regulations. ©. - Since the undisputed -testimoriy was (Tr. 70, 71, 102): ‘that the imported material had no commercial use except as . feed stock for the production of ethyl alcohol, it. was raw, ; ., unmanafactured material within the express criteria laid down by this Court in Seeberger v. Castro, 153 U- S. 32, 35, +. until it was subjected to the domestic’ processes of produc- ° tion heres There this Court held that imported material not fit. for use in the condition imported, was unmanufactured * ‘materials that the meaning of, that word, whieh is.synony- . _ mous with “produced”? (Allen v. Smith, 173 U. 8. 389, 399), was ‘‘a thing made which is useful for its own sake and. vendable as stich’’, and that ‘‘To speak of it as ‘partly is manufactured’ and deduce a contention theref rom,.ig simply to assume the question at issue’’, p. 36. With the principle of this-Court’s decision in'that case (followed bg this Court | in Spalding v. Castro, 153 U. S. 38, 39; Patton v. U. S., 159 -U: S. 500, 509; Latimer v. U. S.,.223 U. S. 501, 503-4), the decision of the Court below is in direct conflict. The. See- - berger case and the decisions of this Court cited in the Peti- specifically refute the Defendant’s assertion in apphelya ay rticle to adapt it to a particular use consti- tutes ‘p aval must be ‘“‘useful-for its own sake and vendable as such’’ (Seeberger v.. Castro, 35, supra). The d illed spirits, here domestically. imported, impure, “poisonous substance, fit only for feed 6) that it is error fo ‘Casgume’’ ‘‘that a process. on’ ’’. Production requires that the article produced, possessed thi property; the . we rd ar as 10 stock for production of ethyl alcohol (Tr. 70, 71, 102), did not. That there have been ane transformation (Defend- ant’s Brief: 5) does not preclude another from constituting” new produetion (decisions of this Court, cited Petition pp. 4-6). It is conflict with the principles, not the specific facts, | involved in ‘those decisions which furnishes ground for certiorari. ' ’ Finally the Court below refused: to give the words dis- tilled spirits the meaning which their context‘in Chapter 27 impelled, failed to acedrd the word “*produced”’ the mean- ‘ing due it under the rule of -this Court’s decision in West- ern Union v. Lenroot. (Petition, p. 4) and which the prior decisions of this Court (Petition, pp @-6) have established, and violated the established r t a taxing statute is to . be strictly construed against the Government (Bowers and Crooks cases st supra). Where & taxing statute is suscepti- - ble, as the lower Court. conceded here, of two construc- tions, that construction must be adopted which is most | favorable to the tax payer. McFeely v: Commissioner, 296 . U.S. 102; 111; U. 8. v. Merriam, 263 U. 8. 179, 188. Regarded as a precedent; the lower Court’s decision, at variance with the Commissioner’s in the same case,, rep- resents a subtle erosion breaking down fundamental rules of statutory ‘construction of general public consequence beyond. the particular injury it inflicts on the. Petitioner. It introduces confusion regarding the meaning of domesti- cally ‘‘produced’’ not alone under the present statute but | with respect to the meaning of that same word concerning export drawbacks on distilled spirits under Section 8179, 26 U. 8. C,, Internal Revenue Code of 1939 as amended. *) U.S. 157, 160, 161. . . e e ; et, eee ' ‘a of ) E:- : The lower Court’s misstatement of : plaintiff's basic theory. which calls for the exercise of this Court’s power of supervision. te ; ; The Court’s opinion below contains the following sup- posititious ‘statement :*. ‘A slight amount of poisonous or noxious.material could be induced into pure ethyl alcohol prior to importation which would only require a simple dis- tillation process to remove. Under plaintiff ’s basic theory, | the process of removing the undesirable material would be ‘a production anda drawback would be allowgble’’. ‘ (Opinion, App. 25) (emphasis added) This statement is wrong as wellas uncalled for because the Court found that the imported substance was not ‘‘pure’’; that the amounts — of the poisénous substance, methanol, were not ‘‘slight’’ but ‘‘excessive’’; and that the additional distillation proc- ess, which supplemented ‘Yhe chemical process, removing the .- poisonous substance and impurities was not ‘‘simple’’ but .4¢ynusually complicated’ in nature’? (Finding 7, App. 28, 99). Thus the\Court has made a furidamental misstatement of Petitioner’s basic _—— By so doing and by the implica- © ent tions of its other statements in its Qpinion (at Appendix ?p. 95-96) the lower Court has furnished further ground for : allowance of the writ because it ‘thas so far departed from - the accepted ‘and usual course of judicial proceedings’’ ‘Sas to call for the exercise of this Court’s power of super- . vision’? under the express terms of Rule 19 which includes these considerations among those governing review on certiorari. | ———_————$— . ®t thus seems to have considered facts not in the record, , warranting reversal under Standard Vacuum Oil Co. v. U. 8. 339 e ‘ a ~ me b | . ae ‘ oon is : F. : j ag ‘. > - ‘ Existence of important questions, though present here, | & is not required for review of Court of Claims’ decisions, especially where there exists a seamaate: with this Court’s . decisions. This Court observes in n the « case of initipioeai of the. ‘Court of Claims ; a special and more liberal rule for review ’ by paeue Where a decision of. the. Court of Claims is in conflict with that of a Court of Appeals, thia in itself has been traditionally sufficient ground for certiorari irrespec- _ , tive of the importance of the question. involved. Cahn v. , U. §.,.297 U. S. 691: (See statement of this case, Robertson . and Kirkham, ‘‘Junsdiction of the Supreme Court of ‘the United States”, 1951, p. 721, footnote 1. Compare. this Court’s thirteen decisions cited in footnote 2, loc. : granting. certiorari on the basis of. conflict ‘alone, and | U. SL y.. Olympic Radio ¢ Television, M9 U.S. 232, 233 ine —™S. v. Anderson, Clayton & Co., 350 U. S. 55, 57). Such, a fortiori, must also be the case where: as here the deci- sion sought to be reviewed i3 in conflict, with this Court’s own decisions: In U. Sav. Standard Rice Co., 323 U. S. 106, 108, this Court ee certiorari to review a Court of Claims’ decision for just such ground, namely’ conflict © ) with this Court’ 8 decision: i in another case. This ' Court granted certiorari in Reynabils v. U. &., 292 U. 8. 443 to: correct patent errors of the Court of Claims comparable to those committed by it in this -case; and recently in Dies v. New York Life Insurance Co.- (No. 58, May- 18, 1959, not yet officially report rte) to review similar errors » by.a Circuit Court of Appeal als. { Certiorafi i is also granted : because of this Court’ 8 tibts hs to edrrectness of the deci- sion below. Chatwin: ¥, es 826 U. 8. 455, 459. Bee also ‘Supreme. Court Practice,’? by Robert L._ Stern and Eugene oe 2nd ed. 1954, p. td and a a Ae ee ee 18 | Supreme Court decisions cited. At pp. 137-138 it is stated with regard to review by this Court of the Court of ail ; decisions that ‘The issues arising. in this type of litigation | frequently have a unique importance which warrants review - by the Supreme Court, inasmuch as so many of the legal. responsibilities of the Government are determined solely in the Court of Claims. The possibility of conflict with decisions of other courts is minimized andthe decisions of the Court of Claims alone would often settle the law in the absence of Supreme Court review. Certain issues thus acquire. an. importance justifying review, an importance - - which they would not otherwise have in the context of - private litigation’. The Court of Claims, a court of first - instance, would otherwise be automatically converted into’. a court also of last resort whose decisions would not be subjected to review." Ceo ie It has also been the practice of this Court to grant the . writ where the. Government though maintaining the cor- - yectness of the result, believes that the reasoning of the — _.Court of Claims cannot be sustained and is likely. to intro- “duce confusion into the law. Robertson. and Kirkhar§y © supra, pp.’ 722-723 and foojnote 4, citing Mass & Wald- stein Co. v..U. 8. 283.U. 8. 583. A fortiori, the writ should "be granted where, regardless of the Government’s belief, the decision is, as here, in fact wrong because in conflict with the principles.of.’this Court’s decisions and in fact likely to introduce confusion in the law. . © With regard to decisions of a Court of Appeals, it is ‘there stated (p. 114) that where such a decision ‘‘elearly fails to apply prior Supreme Court decisions because of error or oversight, the = Court usually grants certiorari.’’ : \ : ‘ ¥ a as | ( 14 paras oi” i a se e ae Conclusion. Because of all. these qftrorg committed by the lower Court and for these additional Teasons, as yell as fof those presented in the Petition, it is subiniitted that, in order to prevent a gross miscarriage of justice, the — for a Writ of Certiorari, Should ‘be — + | Dated Suns 9, 1950. _ Respeétfully submited, ‘SUMNER For, , £33: . ; Attorney, -for Plaintiff-Petitioner, Q. . *. . Office and Post Office Address : “ hy tee cat “15 Broad Street, ee eee age Borough of Manhattan, , | ie hoo New York § N.Y. \ hentai Assorr & Moraax, } Pav Pryror, : -"Sropparp B. Cozsy, 4 eee Tomyton vie, 3 . wee | a * Joux Cemanigay ER, JR., Pre. Of Counsel. (lx "Oe --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA04386419_0895%3A4. Public record. Not legal advice.