The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1885-1921, 1908-02-15
THOMAS FITCH TALKS
OF SAKE CASES
Continued from Page One.

ance. In February, 1907, Mr.. Mercy
nolds said, 6 am not satisfied with tn
record; it is too voluminous, and I an
not satisfied with Judge Morrow Is de
cision. 1t appears in the report of i
as being on the merits, when in truth i
was pro forma You must stipulate Il
condense the record and agree thar
Judge Morrow s decision was merely
pro forma. or else ! will dismiss the
appeal and bring another test case.
We yielded to the exaction and said TIC
McReynolds, Prepare the stipulation
you want and we will sign it and be
ready to try the case in April. We
waited in vain for him to present us
with a stipulation until April, and then
he informed us that he intended to
bring another test case anyhow
'.Then, supported by petitions from
| the Chamber of Commerce, the Board
of Trade, and the bankers and mer-
chants of Honolulu we appealed unto
Caesar. through the Treasury Depart
ment, for fair play, and Caesar
| (Which his name is Roosevelt)
bless his strenuous, fearless, Justice
loving soul-after reading the petitions
and listening patiently to our state
ments, wrote the following note:
+" Department of Justice: The Treas
ury Department thinks that this case
should be heard where it is. Please in
vestigate and report to me. Theodore
| Roosevelt
And on receipt of this highly sug-
gestive communication, Solicitor Gen
eral Hoyt did something for we
heard no more about new test case.
"Then we went to work condensing
the record along with Assistant Special
Counsel Kemp. 1t was completed early
in June and ready for submission for
the approval of Mr.. McReynolds. But
that gentleman was not available. He
was taking an outing somewhere, and
for two months he continued to take
his outing, and when he returned he
took an inning ON US for about a
month, until it was August before the
condensed record and stipulation were
signed.
Then Mr.. McReynolds insisted that
the record must not be printed until
the stipulation concerning it should be
approved by the u. s. Circuit Court of
Appeals in San Francisco. That Court
would not meet until Oct. 7th, but the
record could be printed in San Fran
cisco where the former record was
then be ready for argument at the
October term in 1907. The stipulation
was approved by the Circuit Court of
Appeals Oct. last, and the case was
set Tor hearing Oct. 80 Then Mr.. Nc
Reynolds changed his mind about hav-
ing the record printed in San Francisco
and concluded to have it done in the
Government printing Office at Washing
ton, where it would take twice as long
and cost twice as much as in San
Francisco.
"And so when October 80 came, there
were no records ready and the case
went over until Feb. 3, 1908. In De-
cember, 1907, the printing was finished
and we succeeded in obtaining few
copies from which to prepare our briefs
But the twenty copies required to be
fled in the clerk Is office in San Fran
cisco were not filed until late in Janu-
airy, and only then after repeated urging
and telegraphing by us.
"And after all these delays for the
accommodation of Special Counsel Ne
Reynolds that gentleman, when the hour
of battle came, was not on hand but
he left to u S. District Attorney Devlin
of San Francisco the labor of the com
bat and the renown-of defeat.
The rule of court which limits argu-
ments to one hour on a side was sus-
pended; we were allowed two and one
half hours each and the case was finally
submitted on Monday, Feb. 3. After
wards the District Attorney was allow
ed fifteen days in which to file an addi-
tional brief. The decision on the case
may possibly be handed down the third |
of March, but will probably not be |
delivered until the 18th of April next.
THE result? We could not lose the |
case if we tried. There never was !
time from the beginning when the !
Government had any chance to win out. /
The Board of United States General
Appraisers, two United States Circuit |
Courts, anh one United States Circuit |
Court of Appeals have decided in our /
favor, and there is no good reason |
to suppose that the tribunal which now /
has the case under advisement will |
reach any different conclusion.
The issue involved is a simple one. |
1t is whether sake most resembles wine
or beer, or has no substantial resem-
blance to either. The similitudes pre-
scribed by the customs laws are ma
terial, quality, texture or the use to /
which applied Texture is inapplicable /
TO lquld, and the use to which aP- |
piled is inapplicable to an alcoholic
beverage, for the use to which sake, !
or wine, or beer, or cider, or a high ball, |
or brandy teddy or a whisky punch,
or an eggnog is applied is to drink it |
for flavor and exhilaration. Quality is |
also inapplicable to a beverage, for
quality under the customs laws means /
degree of excellence and no witness
could intelligently testify, and no court /
could intelhgently find, that sake is |!
of greater or less excellence than wine |
or beer.
The only point of similitude there
fore is material, and this is divided into |
the original material from which an
article is made, and the finished mate
rial into which it is made, and a radical
difference in original material has been |
held to overcome similitude in finished |
material. In recent case the Circuit |
Court of Appeals held that artificial
silk yarn made from cotton waste by
dissolving celluloid with cup ammonia, !
and resembling equally silk yarn and |
cotton yarn in quality, texture and use,
must necessarily be classed as cotton
yarn, because its original material was
cotton.