author: DUNIWAY, Circuit Judge: SNEED, Circuit Judge

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Gabriel MARTINEZ-TAPIA, Defendant-Appellant.
    No. 73-2121.
    United States Court of Appeals, Ninth Circuit.
    July 1, 1974.
    Robert L. Boles (argued), Federal Defenders, Inc., San Diego, Cal., for defendant-appellant.
    Harry D. Steward • (argued), U. S. Atty., San Diego, Cal., for plaintiff-appellee.
    Before DUNIWAY and SNEED, Circuit Judges, and SWEIGERT, District Judge.

       The Honorable William T. Sweigert, Senior United States District Judge for the Northern District of California, sitting by designation.

   OPINION

DUNIWAY, Circuit Judge:

We postponed submission of this ease pending decision by this court in banc of a number of cases involving applications of the decision of the Supreme Court in Almeida-Sanchez v. United States, 1973, 413 U.S. 266, 93 S.Ct. 2535, 37 L.Ed.2d 596. Those cases have now been decided.

Martinez-Tapia was driving westward in a 1959 Ford Ranchero car on Highway 94 in Southern California. He was stopped by a border patrol agent, Mathie, who learned from Martinez that he was a Mexican National illegally in this country. Mathie then searched the car and, by removing a right rear corner panel, found a quantity of marijuana.

Martinez was charged with possession of the marijuana with intent to distribute it in violation of 21 U.S.C. § 841(a)(1). His motion to suppress the marijuana was denied, he was tried and convicted, and he appeals. We reverse.

This was a stop by a roving patrol, just as in Almeida-Sanchez, supra. As to a pending case on direct appeal, such as this one, Almeida-Sanchez, is retroactive. United States v. Peltier, 9 Cir., in banc, 1974, 500 F.2d 985. Moreover, under Almeida-Sanchez, the agent had no right to stop Martinez, absent a founded suspicion. United States v. Brignoni-Ponce, 9 Cir., 1974, in banc, 499 F.2d 1109.

As is its wont, the government urges that the officers had a founded suspicion, justifying the stop and inquiry and, as a result thereof, the search. We cannot agree.

These are the specific, articulable facts, known to the agents, on which the government relies as creating a founded suspicion:

(1) The highway, a main east-west road, is only 1% miles from the border with Mexico at the point where Martinez was first seen by agent Wells just west of an intersection with Indian Road. The latter is a dirt road running to a point on the border where the fence is often cut by smugglers entering the country. The general area is one in which considerable smuggling occurs. However, Martinez was not seen on Indian Road. Wells thought that he might have come from there because he was going slowly, picking up speed, and shifting gears.

These facts are not enough. Highway 94 traverses rough country — it winds and goes up and down hill. That an old car is travelling slowly and shifting gears indicates only that the driver is doing what a driver is likely to do under these circumstances. Martinez was still going slowly farther along the highway when Mathie, who had received the foregoing information by radio from Wells, stopped him. Merely driving slowly along a highway in an area where there is considerable smuggling does not justify a stop, nor do the additional facts here known to the stopping agent.

(2) The agents testified that Martinez’s vehicle was of a type often used by smugglers. This kind of testimony, however, is of dubious validity, as is shown by the testimony of the agents in this case. One of the agents testified that in seventeen and one-half years on the force he had stopped only one such vehicle that had contraband in it. The other agent testified that he had stopped quite a few of these vehicles but he had never uncovered contraband in one of them. This is hardly ground for a founded suspicion that Martinez’s vehicle contained contraband. The fact that someone is driving a particular make or model of car is no better ground for a stop than the fact that the driver looks like a Mexican. See United States v. Mallides, 9 Cir., 1973, 473 F.2d 859, 861. The motion to suppress should have been granted.

The judgment is reversed.

SNEED, Circuit Judge

(dissenting):

I respectfully dissent. The majority here fails to recognize that a police officer, like other human beings, does not look at facts in isolation, but rather derives his “founded suspicion,” if such exists, from the pattern of all the facts and observations at his disposal. Thus, I can not agree with the use of an analytic technique which attempts to evaluate each element in the calculus independently without considering the whole. In the present case, the border patrol agents possessed the following information: (a) appellant’s vehicle was stopped by an agent at a point near the intersection of the highway and Indian Road, a small dirt road l1/^ miles in length which leads directly to the Mexican border; (b) while appellant’s vehicle was not actually seen on Indian Road, it was observed accelerating at a point immediately past the intersection, thus leading agents to believe that appellant had just turned onto the highway; (c) only three residences are located on Indian Road between the highway and the border, and the agents knew that appellant did not reside at any of the three; (d) Indian Road was frequently used for smuggling aliens and contraband into the United States; and (e) although the majority is correct in stating that the particular agents involved in this case had, themselves, little direct knowledge of an association between the type of vehicle involved and smuggling activities, the record also reveals that on four or five occasions during the year prior to the stop at issue here various border patrol agents had stopped similar vehicles in the area and discovered contraband. The case, I admit, is close. Nevertheless, these facts, when taken as a whole, are sufficient in my judgment to create a founded suspicion as that term was applied in Wilson v. Porter, 361 F.2d 412 (9th Cir., 1966).


source: Caselaw Access Project

author: PER CURIAM:

license: Public Domain

text:
    The UNITED STATES of America, Plaintiff-Appellee, v. Ernest Wesley MILLER, Defendant-Appellant.
    No. 73-1083.
    United States Court of Appeals, Fifth Circuit.
    July 8, 1974.
    Ray Gene Smith, Wichita Falls, Tex. (Court-appointed), for defendant-appellant.
    Anthony J. P. Farris, U. S. Atty., Robert G. Darden, Asst. U. S. Atty., Houston, Tex., for plaintiff-appellee.
    Before BROWN, Chief Judge, and WISDOM, GEWIN, BELL, THORN-BERRY, COLEMAN, GOLDBERG, AINSWORTH, GODBOLD, DYER, SIMPSON, MORGAN, CLARK, RONEY and GEE, Circuit Judges.
   PER CURIAM:

The Court has considered the petition for rehearing en banc with respect to the retroactivity issue only, and is of the opinion that the decision of the panel 5 Cir., 492 F.2d 37 is correct. The petition for rehearing is in all other respects denied by the panel.


text:
    Walter HIRSCH v. The UNITED STATES.
    No. 397-71.

    United States Court of Claims.
    July 19, 1974.
    Michael B. Roger, San Francisco, Cal., for plaintiff; Victor J. Van Bourg, San Francisco, Cal., atty. of record. Levy, Van Bourg & Hackler, San Francisco, Cal., of counsel/
    Gerald L. Schrader, Washington, D. C., with whom was Asst. Atty. Gen. Carla A. Hills, for defendant.
    Before LARAMORE, Senior Judge, and DAVIS and BENNETT, Judges.
   OPINION

PER CURIAM:

Plaintiff is regional director of educational research in the San Francisco office of the Office of Education of the Department of Health, Education and Welfare. The regional office is headed by a regional assistant commissioner.

In March 1968 and for some time thereafter plaintiff was denied a promotion from grade GS-14 to GS-15 and he now sues for the difference in pay between the two grades, claiming that the denial of promotion was discriminatory. He has since been promoted to grade GS-15.

Plaintiff does not claim that he was discriminated against because of race, color, creed, sex, age, national origin or any other ground which is the subject of executive order or statute, and for this reason the Civil Service Commission would not entertain his appeal from the denial of promotion. The Commission offered to entertain his appeal as a position classification appeal, that is, a proceeding to require that his position should be reclassified at the higher grade. Plaintiff refused. He was seeking, he said, “an adjudication based on overwhelming evidence that I have been denied advancement in my job situation here solely as the result of repeated discriminations against me — discriminations not based on race, color or creed, but just plain old-fashioned discrimination in the form of varied actions (covert and overt) utterly extraneous to civil service merit considerations.”

Plaintiff was employed as regional director of educational research in July 1967, with a personal commitment from the program officers for regional educational research in the Office of Education that he would be recommended for promotion when, as was expected, the position would be classified at grade GS-15.

The position was in January 1968 reclassified at both GS-15 and GS-14. His superiors in the educational research field at headquarters felt he was qualified and deserved promotion, and recommended the promotion of plaintiff and of several other regional directors of educational research in other regions.

Such recommendation was made at least three times, between January and November of 1968. Others in like position — regional directors of educational research — but not all regional directors were recommended for promotion at the same time as the plaintiff. Each time the others were promoted, and plaintiff was not.

The first time the reason for the non-approval was the expression of an opinion by the Director of Personnel that he, plaintiff, had been involved in a conflict of interest case against the officer who had recommended him for promotion. If this opinion meant that plaintiff was somehow tainted by a conflict of interest charge, it was without merit. The charge of conflict of interest had not been made against the plaintiff; it had been made, and the accused officer cleared, before plaintiff joined the agency and plaintiff’s involvement was only minimal, as a witness, and in all respects proper.

The second and third recommendations failed because of the opposition, or at least the nonapproval, of the regional assistant commissioner, plaintiff’s nominal and administrative superior in San Francisco, who had the support of his superiors in the Office of Field Services at headquarters in Washington. There seems to have been a long-standing dispute between the two groups — the research program officers, who recommended plaintiff’s promotion, and the line officers. The regional assistant commissioner, chief of the San Francisco regional office, felt that plaintiff was not active enough in covering his territory. Plaintiff’s program supervisors in Washington, however, wanted him to be just as active or inactive as he was in fact. He was not, they instructed him, to overstimulate the area into presenting more proposals for aid than funds could provide. In a direct conflict over plaintiff’s qualifications for promotion the director of educational research in Washington rated plaintiff’s performance high, and the regional assistant commissioner rated him not responsive to the needs of the region. Essentially, plaintiff was an innocent victim of a jurisdictional dispute between his superiors at headquarters in Washington and the officers at headquarters in charge of regional offices.

Eventually the acting commissioner ordered an informal investigation of the dispute over the recommendation for plaintiff’s promotion. The result was that it was felt that plaintiff had been unfairly treated and should be promoted.

Unhappily, however, conditions had by this time changed. Funds expected to be forthcoming for regional educational research had not materialized, the contemplated staff could not be hired in the contemplated number, the program was curtailed and the position of regional director of educational research could not justifiably be filled by a GS-15. Indeed, the agency now determined that the position warranted only a GS-14 rating and planned to fill any vacancies with GS-14 officers. Conditions apparently changed again, and in November 1970 plaintiff was promoted to the grade of GS-15 pursuant to new job descriptions reclassifying the job as a GS-15.

It thus appears, as indicated earlier, that for over 2 years plaintiff was denied promotion for reasons extraneous to plaintiff and his work and thus in consequence he failed to occupy a higher grade and earn its pay from about March 1968 to November 1970. It has not, however, appeared that those whose nonapproval brought about the denial were acting dishonestly, in bad faith or in excess of their jurisdiction. Absent a showing by strong proof, it is presumed, and on the evidence it has thus been found, that the officers who withheld their approval of the promotion acted in good faith. See Greenway v. United States, 175 Ct.Cl. 350, 362, cert. denied, 385 U.S. 881, 87 S.Ct. 167, 17 L.Ed.2d 108 (1966); Knotts v. United States, 121 F.Supp. 630, 631, 128 Ct.Cl. 489, 492 (1954).

The recommendation for plaintiff’s promotion was disapproved by honest, if possibly mistaken, officers of his agency who were entitled to oppose the promotion. Even if the facts be held to constitute not,a delay in promotion but a flat denial of a deserved promotion for reasons later found to be erroneous, no wrong has been done for which a remedy lies in the courts.

The judgment of the officers involved may have been bad, but theirs was the discretion to make both good and bad decisions on personnel matters. There has been no proof that they abused their discretion or acted in an arbitrary or capricious manner. The courts cannot substitute their judgment for those in the Executive Branch entrusted with the discretionary duties of appointment, supervision and promotion of the officers in the Executive Branch. See Keim v. United States, 177 U.S. 290, 20 S.Ct. 574, 44 L.Ed. 774 (1900); Eberlein v. United States, 257 U.S. 82, 42 S.Ct. 12, 66 L.Ed. 140 (1921). To grant the relief requested would be a judicial grant of a promotion discretionary with the administrative authorities. This the courts will not do. Desmond v. United States, 201 Ct.Cl. 507, 526 (1973); Allison v. United States, 451 F.2d 1035, 196 Ct.Cl. 263 (1971).

Plaintiff has no claim upon which relief can be granted, and his petition should be dismissed.

       This opinion incorporates that of Trial Judge David Schwartz, with some modifications. There are also some changes in the trial judge’s findings which we adopt in the main.


author: NICHOLS, Judge.

text:
    Mercy N. CLINCHER et al. v. The UNITED STATES, STATES OF MONTANA AND ARIZONA, Third-Party Defendants.
    No. 25-73.

    United States Court of Claims.
    July 19, 1974.
    As Amended on Rehearing and Rehearing En Banc Denied Oct. 4, 1974.

      Marvin J. Sonosky, Washington, D. C., for plaintiffs. Richard A. Baenen, Washington, D. C., atty. of record for plaintiffs.
    David W. Miller, Washington, D. C., with whom was Asst. Atty. Gen. Wallace H. Johnson, for defendant.
    Robert W. Corcoran, Helena, Mont., with whom was Edward Jene Bell, Helena, Mont., of counsel, for the State of Montana.
    James D. Winter, Phoenix, Ariz., with whom was Gary K. Nelson, Phoenix, Ariz., of counsel, for the State of Arizona.
    Before SKELTON, NICHOLS and KASHIWA, Judges.
   NICHOLS, Judge.

Plaintiffs are seven American Indians who are, or have been, United States employees on Indian reservations. Invoking McClanahan v. Arizona State Tax Comm., 411 U.S. 164, 93 S.Ct. 1257, 36 L.Ed.2d 129 (1973), they bring this suit to recover amounts withheld from their wages by the United States for state income taxes and paid over to either the State of Montana or the State of Arizona. They did not protest the withholdings, which ceased after McClanahan, and they have not requested refunds under state practice. Pursuant to Rule 41, Montana and Arizona have been added to the suit as third party defendants. The United States moves for summary judgment. Also it prays for judgment against these third party defendants in the amount of any judgment that may be entered in the plaintiffs’ favor against the United States. Arizona and Montana have filed motions to dismiss plaintiffs’ petition. We have subject matter jurisdiction pursuant to 28 U.S.C. § 1491, since the plaintiffs are suing for amounts due them as pay earned during their United States Government employment. Ray v. United States, 453 F.2d 754, 197 Ct.Cl. 1 (1972).

Plaintiffs ask that this case be certified as a class action or form of a class action. In the alternative they have filed a motion for leave to add 15 additional parties plaintiff, all of whom are employed by the United States on Indian reservations not within the boundaries of Arizona or Montana.

In the recent case of Quinault Allottee Ass’n v. United States, 453 F.2d 1272, 197 Ct.Cl. 134 (1972), 14 A.L.R.Fed. 751, we held that we have the power to entertain class actions. In that case we decided not to adopt a rule complementary to Rule 23 of the Federal Rules of Civil Procedure. Recognizing that F.R.C.P. 23 is controversial, and that our needs are unlike those of the District Courts, we decided in Quinault, to handle class actions on a case by case basis, deferring promulgation of a rule of our own. See, also, Annot., “Maintenance of Class Actions In United States Court of Claims”, 14 A.L.R.Fed. 760 (1973); Iadarola, Class Suits And The Court of Claims — Is The Court Now Ready For A Rule, 31 Fed.B.J. 225 (1972).

It is certainly fairer to the members of the class not to invite them on board a sinking ship, as this, we hold infra, is. Moreover, the class, according to plaintiffs, numbers about 7,000, employed on different reservations in several different states. It appears to be common ground that liability, if any, of the United States passes through to the third party defendants. Should we hold, as we do not, that the United States can be initially liable as a stakeholder who paid the wrong party, the paramount issues would then become the liability of each individual state in light of relevant treaties and statutes. McClanahan, supra, 411 U.S. at 173, 93 S.Ct. 1257, 36 L.Ed.2d 129. Issues might be different for different states, and for different tribes or reservations in the same state. Attorneys General of different states might employ different strategy. Thus the class action as proposed would be an unwieldly mass with the single common initial issue outweighed by a multiplicity of subsequent diverse issues. Quinault, supra. The normal and presently ongoing pursuit of refund claims before state agencies and courts appears cleaner, simpler, and more economical. The request for class action status is denied.

For the same reason we also deny plaintiffs’ motion to add additional parties plaintiff. Such motion seeks to add individuals from Oregon, Idaho, South Dakota, California and Colorado. If we granted this motion the United States asks that we add the states listed above as third party "defendants prior to ruling on the merits. Undoubtedly, these states would want to express their views to this court. This would unnecessarily complicate and delay the present litigation. As stated, we perceive no assurance that the legal issues will be the same for other states as they are for Arizona and Montana.

The test case, brought by one or a few plaintiffs, has been the traditional method of litigating rights of Government employees in this court. We see no reason why the method is not sufficient here.

The plaintiff, McClanahan, was a Navajo Indian who resided on, and derived all her income from within the Navajo reservation. She sued in -the state courts to recover $16.20 withheld from her wages as Arizona State income taxes, and losing there, went to the United States Supreme Court. Relying upon Federal statutes, and a treaty between the United States and the Navajos, the Supreme Court held that Arizona was without jurisdiction to tax her income earned on the reservation.

Plaintiffs argue that where the United States owes money to one party but mistakenly pays it to another party, the first party is entitled to recover those sums from the United States. Cited as authority are Fireman’s Fund Ins. Co. v. United States, 421 F.2d 706, 190 Ct.Cl. 804 (1970); Stamer v. United States, 148 Ct.Cl. 482 (1960) and Central Nat’l Bank of Richmond v. United States, 91 F.Supp. 738, 117 Ct.Cl. 389 (1950). These cases are not relevant to the case at bar, since none concerns the situation where the United States as an employer, withholds state income taxes. No case has been cited to us, nor have we been able to find any cases holding that an employer is liable to its employee for income taxes erroneously withheld from the employee’s wages. Looking the other way, but not directly in point, is Lung v. O’Cheskey, 358 F.Supp. 928 (D.N.Mex., (3 judge court)), aff’d 414 U.S. 802, 94 S.Ct. 159, 38 L.Ed.2d 39 (1973).

The United States withholds state income taxes from its employees as a result of contracts entered into with states pursuant to 5 U.S.C. § 5517. In relevant part that statute provides as follows:

§ 5517. Withholding State income taxes
(a) When a State statute—
(1) provides for the collection of a tax by imposing on employers generally the duty of withholding sums from the pay of employees and making returns of the sums to the State; and_
(2) imposes the duty to withhold generally with respect to the pay of employees who are residents of the State;
the Secretary of the Treasury, under regulations prescribed by the President, shall enter into an agreement with the State within 120 days of a request for agreement from the proper State official. The agreement shall provide that the head of each agency of the United States shall comply with the requirements of the State withholding statute in .the case of employees of the agency who are subject to the tax and whose regular place of Federal employment is within the State with which the agreement is made. * * *
(b) This section does not give the consent of the United States to the application of a statute which imposes more burdensome requirements on the United States than on other employers, or which subjects the United States or its employees to a penalty or liability because of this section. An agency of the United States may not accept pay from a State for services performed in withholding State income taxes from the pay of the employees of the agency.

We are certain that Congress could not have intended this provision to be interpreted so as to impose a greater burden on the United States than that imposed on' a private employer. This is evident from subsection (b) of the statute.

We hold that .the United States is not liable to its Arizona and Montana Indian employees for state income taxes erroneously.withheld from their salaries because a private employer would not be under either Arizona or Montana law. Such liability is expressly eliminated by Ariz.Rev.Statutes § 43-188(g), and Rev. Codes of Montana § 84-4947:

Ariz.Rev.Statutes, § 43-188
(g) Liability for failure to withhold; penalty for failure to remit.
(1) The employer shall be liable to the tax commission for the payment of the tax required to be deducted and withheld under this section, and the employee shall not thereafter be liable for the amount of any such payment, nor shall the employer be liable to any person or any employee for the amount of any such payment. For the purpose of making penalty sections of this title applicable, any amount deducted or required to be deducted and remitted to the commission under this section shall be considered the tax of the employer and with respect to such amounts he shall be considered as a taxpayer. (Emphasis supplied.)
Rev.Code of Montana, § 84-4947
84-4947. Amount withheld considered as tax collected. All amounts deducted and withheld shall be considered as a tax collected under the provisions of this act, and no employee shall have any right of action against his employer in respect to any moneys so deducted and withheld from his wages and paid to the state of Montana incompliance or intended compliance with this act. (Emphasis supplied.)

These provisions are apparently patterned after I.R.C. of 1954, § 3403, or its predecessor I.R.C. of 1939, § 1623. The former is set out below:

Internal Revenue Code, 1954,
§ 3403
Sec. 3403. Liability "for tax.
The employer shall be liable for the payment of the tax required to be deducted and withheld under this chapter, and shall not be liable to any person for the amount of any such payment. (Emphasis supplied.)

Arizona also provides that a taxpayer, from whose pay sums are withheld, has the same remedies as other taxpayers § 43-188 (i). This appears to be implicit as to Montana. At any rate, in this court it was not denied .that the involved Indians had available to them the customary and usual remedies to recover state income taxes withheld contrary to McClanahan, to the extent state statutes of limitations have not run. Both states are actively processing refund claims based on McClanahan, though the position of Montana, not yet .tested administratively, or in its courts, is to deny McClanahan full retroactive effect.

Should there be any state that expressly or by implication imposes upon the private employer the duty to monitor the tax liability of its employees, and refrain from any withholding contrary to correct views as to the employee’s tax liability, whether or not the employee has so requested, that would present us with a situation not before us here, and one as to which we express no opinion. "What we have here is a ease where the collection of a refund of any excess of withholding over tax liability is entirely between the taxpayer and the state. The plaintiffs are not incompetent. As their counsel admitted, there is nothing in their claims, if valid, that would not be equally valid for any non-Indian Government employee, if despite some legal immunity from state taxation, the Government withheld moneys and paid them over to the state in error as state taxes.

Plaintiffs’ proper remedy is' to follow the administrative procedures prescribed by the two states. In both states a taxpayer is required to file a claim for refund with a state administrative taxing authority. Ariz.Rev.Statutes § 43-184(b)(l); Rev.Codes of Montana § 84-4956. A condition to a taxpayer’s obtaining judicial review in both states is inter alia a denial of the taxpayer’s claim for refund by the administrative taxing authority. Ariz.Rev. Statutes §§ 43-184(b) (1), 43-186(b); Rev.Codes of Montana §§ 84-4922, 84-4923.1. Plaintiffs apparently have never filed a claim for a refund with either of the state taxing authorities.

We therefore grant the United States’ motion for summary judgment, and .third party defendants’, States of Arizona and Montana, motions to dismiss. The plaintiffs’ motion for summary judgment is denied. The petition is dismissed.


author: COWEN, Chief Judge.

text:
    EMERY AIR FREIGHT CORPORATION v. The UNITED STATES.
    No. 390-71.
    United States Court of Claims.
    July 19, 1974.
    As Amended July 26, 1974.

      Eldon H. Crowell, Washington, D. C., atty. of record, for plaintiff. Michael J. Petrina, Jr., and Reavis, Pogue, Neal & Rose, Washington, D. C., of counsel.
    John Charles Ranney, Washington, D. C., with whom was Asst. Atty. Gen. Carla A. Hills, for defendant.
    Before CO WEN, Chief Judge, and DAVIS and KUNZIG, Judges.
   OPINION

COWEN, Chief Judge.

Emery Air Freight Corporation operates as an “indirect air carrier,” as defined in Section 101(3) of the Federal Aviation Act of 1958, 49 U.S.C. § 1301(3) (1970), engaging in the air transportation of property as a common carrier while not directly participating in the operation of aircraft. Emery is commonly known as an air freight forwarder. In this capacity, Emery contracted with various governmental agencies to provide transportation for freight shipments.

This case involves the payment for 458 shipments which were received by Emery between 1964 and 1969 and transported to their proper destinations under Government bills of lading. Between 1968 and 1971, the General Accounting Office issued notices of overcharge with respect to the payment for these shipments by authority of Section 322 of the Transportation Act of 1940, 49 U.S.C. § 66 (1970), and deducted the amount of the stated overcharges from funds otherwise payable to Emery. Plaintiff asserts that the defendant was billed in accordance with the applicable tariffs on file with the Civil Aeronautics Board (CAB) and that the deduction of the claimed overcharges was improper.

With minor exceptions, the parties have stipulated the material facts. In order to simplify the issues, the parties have agreed to divide the 458 shipments involved here into two categories: (1) those which were transported between cities of origin and destination for which Emery maintained point-to-point tariff rates at the time of shipment; (2) those for which Emery had no effective point-to-point or through tariffs covering the movement from origin to destination at the time of shipment.

For the purpose of this action, the parties have stipulated that four shipments are representative of the first category (Item Nos. 163, 271, 324, 338). In handling these shipments, Emery did not route shipments between airports where it had point-to-point tariff rates in effect. Plaintiff transported the shipments using other airports or ground transportation for parts of the transportation. Item No. 163 was scheduled to move from Chicago, Illinois, as the point of origin, to Pueblo, Colorado. Emery had a point-to-point tariff rate on file between these points. The General Accounting Office records indicate that the shipment actually moved by air from Chicago to Denver, Colorado, and from Denver to Pueblo, Colorado, by motor carrier. Item No. 271 had Bethpage, New York, listed as a point of origin and the destination was Huntsville, Alabama. Plaintiff maintained a tariff rate between these points. This shipment actually traveled from Bethpage to New York City (probably by motor carrier); from New York City to Atlanta, Georgia, by air; and then from Atlanta to Huntsville, Alabama, by surface carrier. Item No. 338 had Middletown, Pennsylvania, as its origin, and its destination was Cheyenne, Wyoming. Emery had a tariff rate on file between these points. This shipment moved from Middletown to Philadelphia, Pennsylvania (probably by motor carrier); from Philadelphia to Denver, Colorado, by air; and from Denver to Cheyenne, Wyoming, by motor carrier.

Emery billed and was paid by defendant in each case on the basis of the through point-to-point air freight rates on file with the CAB. It was not until the General Accounting Office audited defendant’s payments that the charges were found to be excessive, and the payments were reduced (by means of setoff) to the rates calculated on the basis of the published air freight rates, plus the motor carrier rates over the actual route of movement. The issue presented by the first factual situation is the proper interpretation of Emery’s Tariff Rule 65 on file with the CAB, with respect to the circumstances under which Emery was authorized to substitute other than direct air service.

The parties have also stipulated that three shipments (Item Nos. 17, 34, and 424) illustrate the second category of shipments. In these shipments, although plaintiff had no tariffs in effect from origin to destination, plaintiff had on file tariffs covering shipments between named cities that were located on a segment of the route between the origin and destination of the shipments. Emery did not ship the freight by air between the points on the segment of any route over which it maintained a point-to-point tariff. Instead, it chose a different route and charged the air freight rate for the segment of the route covered by one of its tariffs and then added the air transportation or motor freight charges from that intermediate point to destination. Item No. 17, which is typical of this category, originated in Dover, Delaware, and its destination was Burlington, Iowa. Emery had no point-to-point tariff from Dover to Burlington on file with the CAB; however, Emery did have a tariff in effect from Philadelphia, Pennsylvania, to Burlington, Iowa. The defendant asserts, and it is not disputed by plaintiff, that the shipment moved by motor carrier from Dover, Delaware, to Philadelphia, Pennsylvania; from there to Chicago, Illinois, by air; and from Chicago to Burlington, Iowa, by motor carrier. Emery billed the Government for the cost of the movement by motor carrier from Dover to Philadelphia, and then charged the air freight rate on file from Philadelphia to Burlington. Emery’s position is that for the segment of the shipment between Philadelphia and Burlington, plaintiff is required to assess the transportation charges on the basis of the point-to-point tariff rate on file, regardless of the actual route of movement. Defendant, on the other hand, argues that, in this situation, the Government is only required to pay the lower air and motor carrier charges that accrue over the actual route of movement. The remaining two items in this category evidence a similar pattern of movement, and the legal issue is the same.

I

Under the Federal Aviation Act, Emery is required to file its tariffs with the Civil Aeronautics Board, showing all rates and charges for air transportation between points it services and showing its classifications, rules, regulations, and practices for such air transportation service (to the extent required by the CAB). 49 U.S.C. § 1373(a) (1970). In compliance with this requirement, Emery filed the following Tariff Rule 65, commonly referred to as the “substitute service” rule:

ROUTING AND RE-ROUTING
A. Forwarder reserves the right to route or re-route shipments via the air carrier which in its judgment will provide the most expeditious service to destination.
B. When, for any reason, including temporary suspension of air service, refusal or inability of air carrier to perform services requested, embargoes, strikes or other causes, diversion of shipments to other means of transportation is necessary, the Forwarder shall have the right to use his best judgment as to the means of transportation to be selected. No reduction or refund of charges will be made when, under the provisions of this rule, it becomes necessary to utilize other than air transportation in order to expedite the shipment. Emery Air Freight Corporation, Air Freight Rules Tariff No. 2, C.A.B. No. 45, 6th Revised Page 8 (emphasis added).

While plaintiff relies on Tariff Rule 65 as a broad statement of its right to provide substitute service at its discretion, the Government argues that Emery may employ “substitute service” only in situations of necessity or emergency similar to those listed in part B and that the phrase “for any reason” does not authorize plaintiff to charge its point-to-point air freight rates when substitute service is provided for other reasons.

The tariffs on file with the CAB, if valid, are the controlling factor with respect to the services provided by the carrier. See Tishman & Lipp, Inc. v. Delta Air Lines, 413 F.2d 1401, 1403 (2d Cir. 1969). Cf. Slick Airways, Inc. v. United States, 292 F.2d 515, 519-520, 154 Ct.Cl. 417, 424-426 (1961); United States v. Associated Air Transport, Inc., 275 F.2d 827, 832-833 (5th Cir. 1960). The interpretation of a tariff ordinarily presents a question of law. See W. P. Brown & Sons Lumber Co. v. Louisville & N. R. R., 299 U.S. 393, 397, 57 S.Ct. 265, 81 L.Ed. 301 (1937); Great Northern Ry. v. Merchants Elevator Co., 259 U.S. 285, 290, 42 S.Ct. 477, 66 L.Ed. 943 (1922); Penn Central Co. v. General Mills, Inc., 439 F.2d 1338, 1340 (8th Cir. 1971); Great Northern Ry. Co. v. United States, 352 F.2d 375, 376-377, 173 Ct.Cl. 453, 455 (1965). In interpreting air tariffs, as with railroad tariffs, the terms of the tariff should be given their ordinary commercial meaning, Western Pacific R. R. Co. v. United States, 388 F.2d 312, 315, 181 Ct.Cl. 869, 873 (1967); Atchison, Topeka & Santa Fe Ry. Co. v. United States, 181 Ct.Cl. 315, 322 (1967); Chesapeake & Ohio Ry. Co. v. United States, 161 F.Supp. 403, 407, 142 Ct.Cl. 204, 212 (1958), and strained or unnatural constructions are not permitted. See Southern Pacific Transportation Co. v. United States, 197 Ct.Cl. 143, 151, 454 F.2d 740, 745 (1972) and cases cited therein.

Tariff Rule 65 expressly states the forwarder’s right to utilize other means of transportation “for any reason” when it believes it necessary to expedite that shipment. In the ordinary sense, the listing of possible reasons for substituting other means of transportation would not limit the forwarder’s right to the use of this “substitute service” provision to emergency situations.

By Order No. E-26605 and Order No. E-26929, the Civil Aeronautics Board ordered that an investigation be instituted to determine whether the substitute service rule in plaintiff’s tariff (and in the tariffs of other carriers) was unjust, unreasonable, unjustly discriminatory, unduly preferential, unduly prejudicial, or otherwise unlawful. In the first of the two orders mentioned, the CAB declared that “[Substitution may be made by the forwarder for any reason in accordance with his judgment.” This characterization was an express reference to plaintiff’s Rule 65. In the second order of June 17, 1968, the Board found that Emery’s substitute service rule was almost identical to rules contained in the tariffs of several of its competitors. In that connection, the Board stated:

Under their current tariff rules, Barnett, Emery, General, and Wings and Wheels, may use substitute service for any reason.

Pursuant to the Board’s order, an investigation was made and an Initial Decision was rendered on June 24, 1969, by Administrative Law Judge E. Robert Seaver of the CAB. He found that with a few exceptions, the carriers’ tariff rules and practices in connection with their substitution of surface transport for air carriage were not unjust or unreasonable, unjustly discriminatory, nor contrary otherwise to the Federal Aviation Act of 1958, as amended. His decision sets forth the following reasons why Emery and other freight forwarders used substitute service:

The first general type of situation is that where surface service is substituted on an occasional basis in order to overcome a temporary, unusual, or unforeseen condition at a particular point which prevents the movement of cargo by air as originally planned. These conditions include bad weather, mechanical trouble or other factors affecting the operation of the aircraft, as well as instances where a shipper tenders outsize cargo or restricted articles such as acids or toxic material, or where other problems related to the nature or volume of the cargo arise unexpectedly.
The second set of circumstances involves a more pre-planned operation, where the carriers provide substitute service for cargo moving between certain pairs of points on a consistent or recurring, though seldom exclusive, basis in order to move the cargo by truck between a secondary or tertiary point and a hub city where freighter or large combination passenger-cargo service is available to provide the long-haul movement. Typically, the demand for passenger service at the point has not grown to a level that justifies the number of flights or the type of aircraft required to transport the volume of cargo offered, or the passenger schedules will not satisfy the need of cargo for late evening departures.
* -* * * * *
Mechanical trouble, bad weather, strikes, and similar emergencies that cause flights to be canceled are relatively infrequent causes. Airport restrictions on the weight of individual shipments at some of the small airports, dimensional problems, restricted articles, backlogs exhausting the available lift, schedules not suitable for late evening pickup, and other factors not associated With the flight of aircraft are not classified as emergencies. These latter problems occur more frequently. * * * Initial Decision of Examiner E. Robert Seaver in Substitution of Other Service for Air Transportation Rule Proceeding, Docket 19797, June 24, 1969 at 6-8 (hereinafter cited as Initial Decision).

The Initial Decision indicates that the substitute service rule was commonly used in other than emergency situations, and there is no suggestion that such a practice was contrary to Tariff Rule 65.

Defendant has correctly pointed out that the administrative law judge found that plaintiff’s Tariff Rule 65 was vague and indefinite and, to that extent, unjust and unreasonable. However, the Initial Decision has not yet become final, and it is well established that neither the Board nor the courts have the authority, by statute or common law, to make a retroactive determination of the reasonableness of the tariff rule. The power to invalidate such a rule is prospective only. Tishman & Lipp, Inc. v. Delta Air Lines, 275 F.Supp. 471, 476 (S.D.N.Y.1967), aff’d, 413 F.2d 1401 (2d Cir. 1969); Scheinman v. Eastern Airlines, 66 Misc.2d 44, 318 N.Y.S.2d 992, 994 (1971). Moreover, we do not have the authority to refer the issue of the reasonableness of plaintiff’s past charges to the Board. Campbell “66” Express, Inc. v. United States, 302 F.2d 270, 271, 157 Ct.Cl. 365, 369 (1962).

It is quite clear from the Board’s orders (referred to above), and the Initial Decision that both the Board and the administrative law judge construed plaintiff's Tariff Rule 65 as authorizing it to substitute service when, in the judgment of the carrier, this was necessary to expedite the shipment. Under the circumstances, we find that the Board’s reading of the rule and the statements contained in the Initial Decision to be persuasive on the only issue before us — the construction and application of the tariff rule to the shipments in the first category.

The tariff in issue is similar to the one discussed in Rosch v. United Air Lines, Inc., 146 F.Supp. 266 (S.D.N.Y.1956). In that case, United was being sued for loss of a dog as a result of the carrier’s deviation from the routing shown on the airbill. The plaintiff challenged United’s use of the substituted service because of the carrier’s alleged knowledge at the time of shipment that an embargo by Braniff International Airways, Inc. would necessitate shipment via a different route than the one indicated on the airbill. The court stated:

The attainment of the national public policy here requires that the plaintiff and defendant air carrier be bound by the latter’s filed tariffs. * * * Those tariffs, among other things, permit the carrier to deviate from any route shown on the airbill when necessary in its opinion to expedite delivery via any air carrier or other transportation agency [Rule 3.8(b)]. Id. at 267 (emphasis added).

The Rosch opinion presents another instance in which the tariff allowed substitute service when it is necessary to expedite shipment in the opinion of the carrier. Indeed, such a practice seems to have been followed in the industry and to have contributed to the development of air cargo service by avoiding delays in shipment.

The Government argues that Emery provided substitute service because it was less expensive than direct air carrier service and that plaintiff is using the rule to allow it to charge the higher tariff rate. While this contention is not beyond all possibility, there is no direct evidence to support such a claim. The Initial Decision of the administrative law judge concluded that, as a general rule, carrier’s use of substituted service was not motivated by cost savings or greater profits and that carrier costs are generally higher when substituted service is used. Initial Decision at 9, 19, 20, 22, 53. Defendant has not showed that Emery actually provided substitute service in the shipments under discussion for a purpose other than the expeditious movement of cargo; such a purpose is expressly allowed by the tariff. In addition, the Government’s reliance on the ejusdem generis doctrine to the effect that the general words “for any reason” should be limited to the type of situations subsequently listed is unfounded. In Gooch v. United States, 297 U.S. 124, 128, 56 S.Ct. 395, 397, 80 L.Ed. 522 (1936), the Supreme Court stated:

The rule of ejusdem generis, while firmly established, is only an instrumentality for ascertaining the correct meaning of words when there is uncertainty. Ordinarily, it limits general terms which follow specific ones to matters similar to those specified; but it may not be used to defeat the obvious purpose of legislation.

See also United States v. Alpers, 338 U.S. 680, 683, 70 S.Ct. 352, 94 L.Ed. 457 (1950); United States v. Baranski, 484 F.2d 556, 566-568 (7th Cir. 1973); Reich v. Webb, 336 F.2d 153, 158-159 (9th Cir. 1964), cert. denied, 380 U.S. 915, 85 S.Ct. 890, 13 L.Ed.2d 800 (1965). Here, the general language in question precedes the specific language and we are not convinced that the items included after the general term were intended to delimit the scope of that term, rather than to give examples of its application.

Plaintiff’s tariff, including Rule 65, has been properly filed pursuant to 49 U.S.C. § 1373 and has not been rejected by the CAB. The rule was in effect at the time of the disputed shipments, continues to be valid and enforceable, and must be accepted and applied by the courts until it has been set aside by the CAB. Alco-Gravure Div. of Pub. Corp. v. American Airlines, Inc., 173 F.Supp. 752, 755 (D.Md.1959).

Since we have concluded that Emery complied with Tariff Rule 65 in choosing a substitute means of transportation for the shipments in issue, it follows that Emery was required to charge and the Government was required to pay the rates specified in Emery’s point-to-point air tariffs. The rule states:

No reduction or refund of charges will be made when, under the provisions of this rule, it becomes necessary to utilize other than air transportation in order to expedite the shipment.

This restriction is binding. See 49 U.S. C. § 1373(b)(0) (1970); 14 C.F.R. § 221.3(b) (1972); Tishman & Lipp, Inc. v. Delta Air Lines, supra, 413 F.2d at 1403.

II

With respect to the second category of shipments, it is important to emphasize that Emery did not have a lawfully filed tariff that covered any of the shipments from origin to destination, and therefore, that it has no tariff which has direct application to the shipments in this ease. Plaintiff seeks to combine the rates paid under tariffs charged by motor carriers with plaintiff’s air tariff covering a segment which was not even a part of the route of movement. None of the shipments in issue moved by air over the segment covered by the tariffs plaintiff seeks to apply. To decide the issue, we must compare the claimed charges with those charges for the air and motor carriage transportation that were in effect over the actual route of movement. Plaintiff asserts that the point-to-point tariffs it charged for an unused segment of the route apply just as in the case where there is a through tariff on file from origin to destination. We disagree.

The question to be decided is which combination of rates applies to the shipments in the second category. In contrast to the shipments in the first category, plaintiff has no tariff in effect which clearly or specifically applies to the shipments in the second category. Defendant argues that it is entitled to the benefit of a combination of the air freight and motor carrier rates in effect over the actual route or routes of movement. Such a combination provides lower rates than those charged by plaintiff. Neither party has cited any provision of the tariff, the contract of carriage, or other authority which controls. In such a situation, we hold that the issue should be resolved by resort to the rule that when either of two tariffs may be applied in a given situation, the shipper is entitled to the tariff which gives him the benefit of the lower rate. In determining whether to apply a domestic or an export tariff to freight shipments by rail, this court has stated: “It is a familiar principle' in construing freight tariffs that when two tariffs are equally appropriate, the one which provides the shipper with the lower rate is to be applied.” Western Pacific R. R. Co. v. United States, 279 F.2d 258, 264, 150 Ct.Cl. 1, 11 (1960). See Union Pacific R. R. v. United States, 163 Ct.Cl. 473, 478-479 (1963). The principle of allowing the shipper the lower rate is also applied in tariff classification cases, where two tariff descriptions are equally appropriate. See United States v. Gulf Refining Co., 268 U.S. 542, 546, 45 S.Ct. 597, 69 L.Ed. 1082 (1925); Hayes Freight Lines, Inc. v. United States, 163 Ct.Cl. 265, 277 (1963); Union Pacific R. R. Co. v. ORE-IDA Potato Products, 252 F.2d 505, 507 (9th Cir. 1958); Buch Express, Inc. v. United States, 132 F.Supp. 473, 476, 132 Ct.Cl. 772, 777 (1955), cert. denied, 351 U.S. 940, 76 S.Ct. 837, 100 L.Ed. 1467 (1956). Here, Emery could and should have assessed its charges according to the tariffs applicable to the air and motor carriage over the actual route of movement. If it had done so, the General Accounting Office found that, for the shipments in question, the charges would have been less, and we hold that the charges should have been so computed.

Ill

For the reasons stated above, it is concluded that plaintiff is entitled to recover on its claims based on the shipments in category one, and this part of the case is remanded to the trial division to determine the amount of the recovery. With respect to the shipments in category two, plaintiff is not entitled to recover, and the petition is dismissed as to the claims based on the shipments in the second category.

      . For a discussion of the role of the freight forwarder, see Comment, Intermodal Transportation and the Freight Forwarder, 76 Yale L.J. 1360, 1362-71 (1966-1967).

      . The term “point-to-point tariff rates” means the published rate for transportation service between two cities listed in Emery’s tariffs filed with the CAB.

      . Although the parties have not stipulated the actual route of movement, defendant’s response to plaintiff’s amended request for admission of facts contains the General Accounting Office Records concerning the routes of movement. The plaintiff has not objected to defendant’s statement of the actual route of movement, except for Item No. 163 which plaintiff characterizes as unsubstantiated. The General Accounting Office Records do provide substantiation for defendant’s statement as to the actual route of movement for Item No. 163, and plaintiff appears to accept the GAO records as to the actual route of movement for the remaining shipments in issue.

      . GAO records do not indicate how Item No. 324 is representative of the first category of shipments.

      . We are informed that a petition for review of this Initial Decision was filed and no action has yet been taken on the findings and recommendations of the administrative law judge.


author: PER CURIAM: FLETCHER, Trial Judge:

text:
    BROWN-FORMAN DISTILLERS CORPORATION v. The UNITED STATES.
    No. 332-70.
    United States Court oí Claims.
    July 19, 1974.
    N. Barr Miller, Washington, D. C., attorney of record, for plaintiff; J. Marvin Haynes, Walter D. Haynes and David L. Miller, Washington, D. C., of counsel.
    Allan C. Lewis, Washington, D. C., with whom was Asst. Atty. Gen. Scott P. Crampton, for defendant; Joseph Kovner and Gilbert E. Andrews, Jr., Washington, D. C., of counsel.
    Before COWEN, Chief Judge, and NICHOLS and KASHIWA, Judges.
   OPINION

PER CURIAM:

This case comes before the court on plaintiff’s motion, filed May 10, 1974, moving that the court adopt the recommended decision, filed April 5, 1974, by Trial Judge Lloyd Fletcher, pursuant to Rule 134(h), as the basis for its judgment in this case, defendant having filed no notice of intention to excépt thereto and the time for so filing pursuant to the Rules of the court having expired. Upon consideration thereof, without oral argument, since the court agrees with the said recommended decision, as hereinafter set forth, it hereby affirms and adopts the same as the basis for its judgment in this case. Therefore, plaintiff is entitled to recover and judgment is entered for plaintiff with the amount of recovery to be determined pursuant to Rule 131(c)..

OPINION OF TRIAL JUDGE

FLETCHER, Trial Judge:

In this case plaintiff seeks a refund of income taxes for the fiscal year ended April 30, 1963. The plaintiff’s claim arises out of the disallowance by the Commissioner of Internal Revenue of amounts which plaintiff claimed as investment credit on the cost of six whiskey maturation (or aging) facilities placed in service by the plaintiff during the fiscal year involved.

The sole question involved is whether plaintiff’s facilities for the maturation and storage of its bourbon whiskey qualify for the investment credit in their entirety, as plaintiff contends, or whether certain components of those facilities (walls, roof, and floors) should be excluded from qualification for the investment credit because such components are “buildings” or “structural components” of “buildings”, as defendant contends. It is plaintiff’s position that its facilities are not “buildings” for investment credit purposes because they are specially designed to function as mild ovens for maturing the whiskey stored therein by cycling the temperature of the whiskey and controlling the humidity, they contain no work space, and the enclosure must be retired contemporaneously with the other principal equipment with which they are integrated. In my opinion, plaintiff’s position is well-taken and, accordingly, plaintiff is entitled to recover.

The facts of this case are set forth at length in the findings of fact. Here they will be summarized only as necessary to explain the basis for the conclusion reached in this opinion.

Plaintiff is engaged in the alcoholic beverage business. During the period in question, it engaged in two principal types of activities. One was the business of distilling, aging (or maturing), bottling, and marketing of bottled bourbon whiskey. Its principal premium brands of bourbon whiskey are “Old Forester” and “Early Times” which are distilled, aged, bottled, and marketed exclusively by plaintiff. It also engaged in the purchase of a variety of distilled spirits (other than bourbon), wines, and cordials, all of which it bottled and distributed for sale. The controversy herein involves only the production of the plaintiff’s premium brands of bourbon.

During its 1963 fiscal year, plaintiff placed in service six maturation facilities. There facilities were used for maturation of bourbon whiskey prior to the bottling, labeling, and marketing thereof as 4-year-old bourbon whiskey. Plaintiff has previously been allowed the investment credit on part of the cost of these facilities but claims entitlement to the credit on the entire cost thereof as tangible depreciable property with a useful life of more than eight years.

Prior to marketing its whiskey, plaintiff carries out five processes: (1) mashing, (2) fermentation, (3) distillation, (4) maturation (commonly called “aging”), and (5) bottling and labeling of the mature whiskey product for distribution. A number of variables determine the quality and character of such whiskey. Of importance among the several variables are the conditions under which the distillate is aged in the maturation facilities.

The fresh distillate from which bourbon whiskey is produced will be clear in color but harsh and unpalatable to the taste. As the result of chemical changes which occur in the whiskey during its maturation, the raw or fresh distillate eventually becomes finished whiskey. In the course of this processing, fresh distillate is barreled in newly charred white oak barrels. Under Federal' regulations, the distillate must be aged or matured in such barrels in order to be labeled and marketed as “bourbon whiskey”. It must be aged for two or more years to be labeled and marketed as “straight bourbon whiskey”. Plaintiff, however, requires that the fresh distillate which it bottles and markets as bourbon whiskey be aged and matured in such barrels for not less than four years.

During the maturation process, the whiskey-distillate acquires its mellow taste, aroma, and color. It undergoes chemical changes as well. Maturing is brought about by cycling, which is the alternate expansion and contraction of the whiskey into and out of the “red layer” formed underneath the char on the oak barrels. A rise in temperature causes the whiskey to expand into the layer and a lowering of the temperature causes a contraction of the whiskey. Alternate expansion and contraction set up a “push-pull” process within each barrel and through contact with the red layer, the raw distillate gradually acquires the characteristics of mature bourbon whiskey. At the same time, air is drawn into the barrels as a result of the partial vacuum created by the whiskey contraction, and the oxygen from this air heightens the changes occurring in the distillate. The chemical processes of maturation that give bourbon whiskey its characteristic color, taste, and aroma consist of (a) oxidation, (b) extraction of wood components from the barrel, and (c) chemical reactions between the liquid components. These chemical processes require heat, and, as a rule of thumb, for each 10-degree increase in temperature, the rate of chemical reactions within the distillate doubles. As the temperature drops, these chemical reactions slow down and if the temperature gets sufficiently cold, both the oxidation process and the other chemical reactions tend to come to a halt so that no maturity results. On the other hand, plaintiff believes (without contradiction on this record) that if the whiskey is overheated (temperature in excess of 90 degrees Fahrenheit), excessive amounts of wood materials are likely to become dissolved in the whiskey with a consequent decrease in quality.

By traditional means of maturation, the barrels of raw distillate are held for aging or maturation in' unheated facilities under conditions in which no artificial temperature or air circulation controls are provided. See, for example, the distilling process described in Heaven Hill Distilleries, Inc. v. United States, 476 F.2d 1327, 201 Ct.Cl. 423 (1973), particularly finding 7. The only available changes in temperature for initiating a cycle of expansion and contraction of the distillate within the barrels are those provided by natural climatic conditions such as changes of the season and the velocity and direction of the outside air. During summer, the whiskey expands into the charred barrel staves and then contracts back into the barrel with the coming of cooler weather, resulting in one cycle. If there is an early hot spell in the spring, followed by cooler weather before the onset of summer, another cycle may be achieved. At best, two cycles per year are all that can be expected by distillers who mature their whiskey under uncontrolled conditions. There is no doubt the maturation process takes place under these uncontrolled conditions; however, the distillate in different areas of such facilities mature at different rates because of the uneven temperature and air flow within the area and around the barrels. The usual means through which uniformity of quality is achieved by producers who use unheated maturation facilities is the rotation of the location of the barrels within the storage area.

Dissatisfied with this uncontrolled method of maturation, the plaintiff, after years of maturation experiments, developed a process for artificial cycling of its barreled distillates. In its opinion this process results in a more uniform, mature whiskey with a greater mellowness and a more pleasing taste. Thus, in 1961, the plaintiff, with the aid of outside architects, developed the design of the facilities in question to carry out its artificial cycling maturation process. These six facilities were designed to achieve an even flow of air around all barrels of distillate and to perform a greater number of controlled cycles of higher and lower temperature of the air circulated in the enclosure in accordance with plaintiff’s method of maturation. The new design also provided for a greater number of barrels per cubic foot of space, improved fire protection for the whiskey, elimination of some mechanical equipment for moving the barreled distillate, and greater convenience for the entry and removal of the barreled distillate.

During maturation, approximately 14 percent of the contents of each barrel evaporates into the air surrounding the barrels in each facility. Over the four-year maturation period, this results in evaporation in each facility of approximately 182,000 gallons. As a result of evaporation, the proof (or alcohol content) of properly matured whiskey will increase because the white oak used to make the whiskey barrels will allow water molecules to evaporate through to the outside surface of the barrels and evaporate faster than alcohol molecules. Plaintiff usually enters its whiskey in the barrel at 103 proof and after four years of maturation it will come out at 112 proof or better.

Evaporation also provides an airspace which assists in the oxidation process. Plaintiff must remove the excessive humidity caused by this evaporation through the use of ventilation systems in each of the facilities in issue. If the humidity in the facilities is permitted to get too high, the evaporation from the barrels would not take place and maturation would not proceed satisfactorily; if there were an excessively wet atmosphere, there could actually be a loss of proof (rather than the desired gain) because water would be drawn into the barrel. Excessive humidity would also slow down the oxidation in the barrel or cut it off completely. In addition, with excessive humidity, the hoops on the barrels would rust, and mold would grow all over the wall surfaces, rick timbers, and the barrels themselves. If mold gets into the whiskey through the pores of the barrels, it is not marketable.

The interior of each of plaintiff’s facilities is a massive honeycomb of wooden “ricks” constructed of heavy timbers. They serve to hold barrels of whiskey during the maturation period. Each facility is 172 feet by 270 feet in size and holds approximately 26,000 barrels of distillate. The facilities have front and back doors and a reinforced concrete center path between the two doors. This path runs between the two enormous grids of seven-tier high ricks and is used for loading and unloading distillate into and out of the facility.

The plaintiff’s maturation facilities were constructed from the inside out. The ground level was first prepared with a predetermined slope for the movement of air and the drainage of moisture from the sprinkler system or broken barrels. On this inclined ground, parallel rows of concrete risers (dwarf walls) were installed at eight-foot intervals across the entire area of the enclosed facility. The honeycomb of ricks which supports the barrels was constructed on the top of the dwarf walls. These dwarf walls support the ricks and provide space and channels for the circulation of heated air beneath the lowest tier of barreled distillate and into the rick area above.

On the floor between the dwarf walls, three-inch concrete slabs were poured on polyethylene sheets. With the exception of the reinforced five-inch concrete center aisle, however, none of such concrete slabs contain reinforcement and are not designed to support any load. The only true flooring in the enclosure is the center aisle. The function of the sloping slabs is to seal out ground moisture, radiate heat upwards, and insure proper drainage in case of barrel leakage or sprinkler activation. Sufficient air space is left between the barrels in the ricks to permit balanced cycling of heat and control of temperature. There is a “wet pipe” sprinkler system attached directly to the ricks to protect the maturing whiskey from fire. Electric lighting is provided only in the center aisle and the catwalk surrounding the ricks.

The heating system in the facility is composed of steam pipes suspended from the ricks in the space between the dwarf walls located underneath the ricks. The heating system permits the temperature and humidity (as a function of temperature) of the air circulating around the barrels to be controlled to obtain the desired cycling activity within the barrels. Heat is circulated and controlled with the aid of a series of exhaust fans and vents located in each facility.

This grid-like complex of ricks and related equipment is fully enclosed. The top cover or roof of the structure is supported by the hundreds of vertical posts of the ricks which extend above the top tier of the maturing distillate. The roof consists of planking nailed to timbers laid on top of these numerous vertical posts. On top of the planking, the roof contains one-half inch of insulation and a built-up outer cover of tarpaper, tar, and gravel. Air vents are located along the full length of the roof edge to aid in the movement of air. The roof is totally dependent on the vertical posts of the ricks for support. There are no rafters or vertical trusses to support it otherwise.

The walls of the structure are especially designed to insulate and control the growth of mold and mildew caused by the entrance of water vapor into the wall material. The construction is of four-inch brick on the exterior surface, a two-inch air space between the outer and inner surface, and a special type of highly impermeable clay building block on the inner surface. In the plaintiff’s facilities some of the horizontal timbers of the ricks are connected to the walls. The ricks are designed with a pattern of diagonal cross-bracing that makes them rigid. Thus, by such connection, the rigid ricks are used to help support the walls. The roof which rests upon and is supported by the ricks also helps support the walls. Accordingly, both the top and sides of the enclosure depend upon the ricks for support. If they were removed, the roof of the maturation facility would collapse, and the walls which rely on the roof and to a lesser degree the ricks, would likewise eventually give way. Thus, it will be seen that all facilities in question are fully integrated structures entirely dependent upon the ricks for ultimate support.

These specialized facilities are the core of the plaintiff’s controlled maturation processes. During the year, they enable the plaintiff to cycle its aging distillate through nine or ten cycles of expansion and contraction into and out of the “red layer” of the barrels. Throughout the colder months, generally November to April, the temperature in the facilities is raised so that the distillate in the barrels reaches a temperature of about 85 degrees, and this temperature is maintained for about a week. This is the expansion process which forces the whiskey into the red layers. The facilities are then cooled until the temperature of the distillate in the barrels is reduced to 65 degrees. This is the contraction process, and it creates a partial vacuum in the barrel which pulls the whiskey back out of the red layer in the barrel staves together with dissolved caramelized wood sugars and tannins as well as fresh air (oxygen).

The cooling process is carried out by drawing in cool outside air through the use of power-operated vents, roof vents, and exhaust fans. Except for the roof ridge vents which are controlled manually by chains reached from the center aisle, controls for operating these vents and exhaust fans are located outside the enclosed facility. From October to the following April, the heating process is carried out through the use of steam pipes running throughout the facilities and located underneath the ricks and between the dwarf walls.

Because of the enormous quantity of liquid distillate in each facility, the heat required to raise the distillate temperature 20 degrees (65 degrees to 85 degrees) is much greater than would be necessary to heat only the air in the facility. Plaintiff presented proof at trial to substantiate that the heat required to increase air temperature by 20 degrees in a facility the size of plaintiff's is less than two-tenths, of one percent of the amount of heat required to raise the temperature of whiskey the same amount. As designed and used by plaintiff, the facilities are similar in function to ovens and refrigerators used for the purpose of bringing about changes of temperature in the products contained therein.

During the warmer months of the year, the plaintiff tries to prevent the whiskey in the facilities from overheating. Even though the walls and roof are insulated, the whiskey will heat up during a period of prolonged high temperatures. Plaintiff utilizes the cooler night air by starting the fans, exhausting the warm air from within the facility and replacing it with cooler air. During these months, plaintiff also opens the ventilators along the ridge of the roof and leaves them open until artificial heating is begun in the fall. In this manner, plaintiff keeps the distillate in the barrels from heating to more than 80 to 85 degrees during the summer.

Satisfactory humidity control is achieved by plaintiff through its ventilation system. Relative humidity at 70 to 80 percent levels is achieved through the use of the ventilation system even during the summer months. This system produces the type of whiskey the plaintiff wants and also eliminates the mold problem.

Work carried on in the facilities in question by plaintiff’s employees is minimal at the most and is incidental to the main purpose of these structures. Entry is made into the facilities by small work details to deposit barrels of raw distillate and to remove them when matured. From time to time whiskey in the barrels is tested, two men search for leaks and repair them when found, and an employee will open some manually operated vents, as required. The controls for the heating and power-operated ventilating systems are located outside the facilities so that activity necessary to cycle the distillate in the maturation process does not require entrance into the facilities. Few laborers and supervisors were required for the work done in the facilities. As of 1973 when plaintiff had 21 such facilities, in addition to the two leak hunters, two supervisors, four guards, and a security force, the plaintiff hired two seven-men crews to load and unload the facilities. For entering and removing barrels, ricking machines are used to raise and lower the barrels to and from the ricks. A crew will spend from 45 minutes to an hour loading or unloading a hundred barrels from a truck into the ricks or from the ricks to a truck. In heavy bottling seasons, eight truckloads of one hundred barrels each might be removed from the present 21 Utica facilities each day. In the winter, an employee enters each facility at least once every two weeks to check on temperatures. Except for such checks, that facility might be kept completely locked and no entries made. During the summer, there may not be anyone in the facility except to check temperature and humidity once a month.

As with all other alcoholic beverage aging facilities, the maturing distillate is held in the facilities under Federal Government bond as required by the Internal Revenue Code and regulations. Entrance to the facilities, even though owned by plaintiff, may be gained only under supervision of employees of the Alcohol, Tobacco, and Firearms Division of the Internal Revenue Service who keep the keys to the locks on the facilities.

In order to qualify for the investment credit, it is necessary for plaintiff to show that the above-described maturation facilities fall within the definition of “section 38 property” as that term is defined in section 48 of the Code, reading, in pertinent part, as follows:

(a) Section 38 Property.'—
(1) In general. — Except as provided in this subsection, the term “section 38 property” means—
(A) tangible personal property, or
(B) other tangible property (not including a building and its structural components) but only if such property
(i) is used as an integral part of manufacturing, production, or extraction * * *, or
(ii) constitutes a research or storage facility used in connection with any of the activities referred to in clause (i). * * *

In addition, to qualify as “section 38 property,” section 48(a)(1) of the Code also provides that the property must be depreciable property and have a useful life of four years or more.

Plaintiff contends that its whiskey maturation facilities qualify under both subparagraphs (1) (B) (i) and (1)(B) (ii) of paragraph (a) of Section 48 because such facilities are used as an integral part of the plaintiff’s manufacturing and production of bourbon whiskey and, at the same time, constitute storage facilities used in connection with such manufacturing and production and finally, they are not buildings as the term “building” is used in Section 48.

Defendant responds with a threefold argument; first, that the facilities in question are specialized buildings rather than storage facilities; second, that they are not items of equipment; and, third, that they are not enclosures which have to be retired contemporaneously with the equipment being housed. These positions are premised essentially on what might be called a “look-alike” argument, i. e., since the facilities look like buildings, they must be ipso facto “buildings” as that term is used in section 48(a) (D(B).

Strangely enough, this position is in direct contradiction to a consistent pattern developed by defendant’s own ruling. In Rev.Rul. 68-132, 1968-1 C. B. 14, for example, the Service examined a facility for bulk storage of potatoes and concluded:

Accordingly, notwithstanding its outward physical appearance as a building, the * * * facility * * * is a storage facility for investment credit purposes.

Similarly, in Rev.Rul. 68-209, 1968-1 C. B. 16, the Service denied the credit to an overhead movable crane shelter and stated:

Thus, the definition of the term “building” for investment credit purposes is stated in terms of function rather than physical appearance.

To the same effect, see Rev.Rul. 69-557, 1969-2 C.B. 3 and Rev.Rul. 71-489, 1971-2 C.B. 48.

The Service ruling in Rev.Rul. 69-557, supra, is particularly noteworthy because of the remarkable similarity of the facts there considered and the ones now before the court. Thus:

In order to accomplish the moisture removing process under controlled conditions, the taxpayer uses a facility known as a “dry-kiln.” Essentially a dry-kiln facility includes a structure into which green lumber is placed, a heating system that provides the necessary temperature to draw the moisture from the lumber, and an exhaust system to remove the moisture from the enclosed structure.
The taxpayer * * * constructed and placed in service four dry-kiln facilities during 1968. The structure of each of these facilities has a concrete base, two sides of tile, two sides composed of large sliding doors, and a built-up roof. They are 20 feet high, 44 feet long, and 210 feet wide. The width is divided into six chambers each 35 feet wide, sharing common walls and sealed off from one another. Each chamber contains heating coils, a spray system for steam, a sensing unit for control, fans for circulating the air, metal duct work for uniformly removing the moisture-laden hot air, and forced air venting fans. There is also a sprinkler system for fire protection.
* * « * * *
The dry-kiln structures in the instant case are generally indistinguishable, except for their large size, from the shells or chambers of ovens. No work other than automatic processes is performed within the structures. The structures are entered by working personnel only to make repairs or adjustments to the equipment or machinery housed in the structure.
Accordingly, it is held * * * that the taxpayer’s dry-kiln structures (including the control room Structures) are not “buildings” under section 1.48-l(e)(l)(i) of the regulations, but are essentially items of machinery or equipment qualifying as “section 38 property” for investment credit purposes.

The similarities between the above-described drying kiln and one of plaintiff’s whiskey maturation facilities are striking. Both have a concrete base, sides that include tile as a component, a built-up roof, heating coils, air circulation fans and a sprinkler system. Both function to apply heat and to control the humidity of the air in the facility in connection with the processing of a product. Both, except for their large size, are indistinguishable from ovens or chambers for applying controlled heating processes.

The courts are in accord with the foregoing administrative interpretation. Thus in Robert E. Catron, 50 T.C. 306 (1968) the United States Tax Court (in a decision reviewed by the entire court) held that one-third of a quonset-type structure, a specialized facility used solely for the cold storage of apples, qualified as a storage facility and was not a building under section 48(a) (1) (B). The remaining two-thirds of the structure were held to be a building. The Tax Court emphasized that appearance was in no way conclusive and looked to the function and use of the facility involved. Said the court at pages 310-311:

Section 1.48-l(e) (1), Income Tax Regs., defines “building” in terms of common experience and understanding. The gist of the definition is that a structure in question is a building if it encloses a space within its walls, is covered by a roof, and has as its purpose the furnishing of shelter or housing, or of working, office, parking, display, or sales space. The regulatory section provides in pertinent part as follows:
(e) Definition of building and structural components. (1) Buildings and structural components thereof do not qualify as section 38 property. The term “building” generally means any structure or edifice enclosing a space within its walls, and usually covered by a roof, the purpose of which is, for example, to provide shelter or housing, or to provide working, office, parking, display, or sales space. The term includes, for example, structures such as apartment houses, factory and office buildings, warehouses, barns, garages, railway or bus stations, and stores.
There would seem to be relatively few structures not falling within the scope of this broad definition. Yet the statute itself (in the case of research and storage facilities), and the regulations (in the case of structures which are essentially items of equipment) certainly suggests that various structures which might arguably be considered buildings in a generic sense are not always buildings within the meaning of the statute. * * *
The regulations resolve the dilemma to an extent by engrafting a functional test which limits slightly the broad scope of our common understanding of “building.” Thus, under section 1.-48-1 (e)(1) of the regulations, supra, the basic definition of “building” is a structure with walls and a roof, but a “building,” it is declared, typically provides space for certain purposes. The enumerated purposes, as mentioned, are the furnishing of shelter or housing, or of working, office, parking, display, or sales space. * * *

Likewise, in Central Citrus Co., 58 T.C. 365, 372-373 (1972), the Tax Court again applied the function or use test to allow the credit for speciali2;ed “sweet rooms” which functioned to control “shrinkage, ripening, color and the overall quality of the fruit.”

On similar reasoning, a U.S. District Court in Kentucky has recently concurred with these decisions and held that sheds used solely for the aging and storing of tobacco in hogshead containers were section 38 property. Again, while the structures involved looked like “buildings,” they were not so treated on the basis of the function and use test. Factors noted as important by the District Court were that the facilities provided no working space except as incidental to their main function as storage facilities (i. e., loading, unloading, and necessary maintenance), that they functioned only as storage facilities during the processing of tobacco products, and the fact that they were not reasonably adaptable for any other use. The external appearance of the structures was ignored. Brown and Williamson Tobacco Corp. v. United States, 369 F.Supp. 1283 (D.C., W.D.Ky., 1973), aff’d per curiam 491 F.2d 1258 (6th Cir. 1974).

Defendant’s other arguments are, in the main, irrelevant. The fact that plaintiff’s facilities have features in common with buildings has been shown not to be determinative under the ratiocination of the cases and rulings. The real inquiry is whether they are functioning or being used as “buildings” in the taxpayer’s hands. In this connection a major inquiry has been whether the structures provide working space for employees that is more than merely incidental to the principal function or use of the structure. See, for example, Brown and Williamson Tobacco Corp. v. United States, supra, and Adolph Coors Co., 27 T.C.M. 1351 (1968).

From the foregoing, it can be readily seen that defendant’s reliance on Sunnyside Nurseries, 59 T.C. 113 (1972) is entirely misplaced. There it was held that taxpayer’s greenhouses, while important to the processing of growing plants, were nonetheless “buildings” because of the substantial amount of employee activity which took place in them. They were therefore not entitled to the investment credit. The court observed at pp. 119-120:

* * * A corps of petitioner’s employees regularly spent full workdays inside the structures, engaging in a broad range of activities related to the processing of commercially marketable plants. As many as 50 persons sometimes worked in a greenhouse at once, often making use of an assortment of machinery and equipment. All of these characteristics are associated with “buildings” as that term is commonly understood.

Unlike the present case, the greenhouse facilities in Sunnyside plainly served as working areas in conjunction with their function of conditioning the environment. The case thus reinforces plaintiff’s position. Here no substantial employee activity takes place in the maturation facilities. The basic activity consists of loading and unloading of goods, together with some maintenance and repair, all occurring at infrequent intervals of time.

As a last resort, defendant appears to rely upon dictionary and architectural definitions of “building” in support of its contention that plaintiff’s maturation facilities are simply a specialized type of building. However, those definitions are of little help in the task of construing the statutory word and merely serve to introduce further ambiguity at best. The testimony shows that the architect tends to define “building” in terms of a common-features rationale rather than on a consideration of the structure’s function or use which, as shown above, is the more important criterion. Likewise, the dictionary definition is (to use a currently popular word) counterproductive. While it defines “building” as a permanently constructed edifice with roof and walls, it clearly distinguishes it from a structure “not designed for occupancy * * * ”. Webster’s Third New International Dictionary (1966 ed., p. 292). Thus, we are reminded once again of Learned Hand’s wisdom when he said in Cabell v. Markham, 148 F.2d 737, 739 (2d Cir., 1945), aff’d 326 U.S. 404, 66 S.Ct. 193, 90 L.Ed. 165 (1945):

But it is one of the surest indexes of a mature and developed jurisprudence not to make a fortress out of the dictionary.

Finally, in addition to qualifying as storage facilities under section 48(a) (1) (B) (ii), plaintiff’s maturation facilities are also qualified for the investment credit under section 48(a) (l)(B)(i). That section includes within the definition of “other tangible property” (not including buildings or their structural components) property that:

(i) is used as an integral part of manufacturing, production, or extraction * * *

Reg. section 1.48-l(d)(2) defines “manufacturing, production, and extraction” in pertinent part as the:

* * * making of property * * * by processing, manipulating, refining, or changing the form of an article, * * *. Thus, section 38 property would include, for example, property used as an integral part of * * * the processing of * * * foodstuffs; * * *.

Reg. section 1.48-l(d)(4) provides as follows with respect to the definition of “integral part”:

Property is used as an integral part of one of the specified activities if it is used directly in the activity and is essential to the completeness of the activity. Thus, for example, in determining whether property is used as an integral part of manufacturing, all properties used by the taxpayer in * * * processing raw materials into the taxpayer’s final product, would be considered as property used as an integral part of manufacturing. * * *

The plaintiff’s facilities obviously satisfy these regulatory criteria. They function as low temperature ovens during the cold months, temperature control units during the warm months, and humidity control chambers throughout the year. All of these functions are integral parts of the processing of the plaintiff’s finished product — an alcoholic beverage which, in the broad sense, falls into the category of foodstuffs. But, for the reasons already discussed, even if the court were to disregard the active and integral part that the facilities play in the maturation of the distillate into plaintiff’s particular brands of bourbon whiskey, the structures would still qualify as section 38 properties because of their additional function or use as storage facilities.

Accordingly, judgment should be entered for plaintiff with the amount thereof to be determined under Rule 131(c).

CONCLUSION OF LAW

Upon the findings of fact and the foregoing opinion, which are adopted by the court and made part of the judgment herein, the court concludes as a matter of law that the plaintiff is entitled to recover, and judgment is entered to that effect, with the determination of the amount of recovery to be reserved for further proceedings under Rule 131(c) in accordance with this opinion.

       Whereas the court adopts the Trial Judge’s separate findings of fact, which are set forth in his report filed April 5, 1974, they are not printed herein since such facts as are necessary to the decision are contained in his opinion.

      . The term “4-year-old bourbon whiskey” as used herein means bourbon-designated distillate which has been matured or aged after entry into new charred white oak barrels for a minimum of four years before being dumped for bottling.

      . Referred to in Heaven Hill, supra as “[T]he pot . . . being stirred by the invisible hand of nature.” 476 F.2d 1335, 201 Ct.Cl. 436.

      . Proof designates the percentage of ethyl alcohol found in the distillate. Proof is approximately twice the pure alcohol percentage. Thus, 100 proof distillate is comprised of 50 percent alcohol.

      . The cost of converting these specialized facilities to general purpose warehouses would approximate two-thirds of their original cost.

      . This is in contrast to the one or two cycles which would occur naturally under the so-called “uncontrolled” method.

      . For allowance of the investment credit on 100 percent of the cost of “Section 38 property,” Section 46(c)(2) of the Code provides that useful life of the property to the taxpayer must be eight years or more. There is no dispute between the parties that the useful life of the facilities and each of their components for purposes of computing depreciation is in excess of eight years.

      . “If the Treasury is to behave in a responsible and mature manner, it should not say one thing in administration and then say precisely the opposite in litigation.” Eisenstein, A Critical View of the Treasury, 15 N.Y.U. Inst. 23, 24 (1957).