76 F. 742 | 9th Cir. | 1896
(after stating the facts). The contention of appellant, upon the foregoing state of facts, and the various provisions of the statutes relating thereto, is to the effect that when the McKinley act went into pperation the specific rate of duty upon •ste.el raiis was changed from $17 per ton to $13.44; that this rate
The questions involved in this case have been argued with marked ability upon both sides. The authorities bearing upon the questions have been colleded and discussed at length. The various acts of congress have been thoroughly reviewed, and our attention has been called to (he entire system of tariff legislation. The contention of appellant is sustained by the decision of the court of claims in Abbot v. U. S., 20 Ct. Cl. 280. The contention of appellee is sustained by the views expressed by Attorney General Brewster 117 Op. Atty. Gen. (550), and Attorney General Ohiev January 17, 1895. Owing to these conflicting opinions, the contest in the present case is presented with the evident purpose of having the questions authoritatively settled.
In the outset, it will he conceded that revenue statutes are enacted under the general power of the government to impose a tax; that in order to sustain the tax in any given case it must affirmatively appear that the power to impose it comes within the letter and spirit of the law authorizing it; that if there are any doubts upon the question the construction should he in favor of the importer. Mr. .Justice Story, in Adams v. Bancroft, 3 Sumn. 384, Fed. Cas. No. 44, said:
‘•That laws imposing duties are never construed tieyond the natural import of the language, and duties are never Imposed upon the citizens upon doubt*748 ful interpretations; for every duty imposes a burden on the public at large, and is construed strictly, and must be made out in a clear and determinate manner from the language of the statute.”
■ The same rule has been expressed by the supreme court. Hartranft v. Wiegmann, 121 U. S. 609, 616, 7 Sup. Ct. 1240, 1244, and authorities there cited.
The same learned justice, in the earlier case of U. S. v. Breed, 1 Sumn. 169, Fed. Cas. No. 14,638, laid down the rule as to the proper construction to be given to such acts as follows:
“Revenue and duty acts are not, in the sense of the law, penal acts, and are not, therefore, to be construed strictly. Nor are they, on the other hand, acts in furtherance of private rights and liberty, or remedial, and therefore to be construed with extraordinary liberality. They are to be construed according to the true import and meaning of their terms, and, when the legislative intention is ascertained, that, and that only, is to be our guide in interpreting them.”
Such laws are more remedial than penal in their nature. They are intended to prevent fraud, to suppress public wrong, and to promote the public good, and should always be so construed as to effectually carry out the purposes and objects which they were intended to accomplish. Taylor v. U. S., 3 How. 197; Cliquot’s Champagne, 3 Wall. 115; U. S. v. Hodson, 10 Wall. 395; Smythe v. Fiske, 23 Wall. 374, 380.
The steel rails in question were imported in 1887, and entered for warehousing February 27, 1888, and the duties liquidated under the act of 1883. At that time the rights and liabilities of the importers were clear and plain. They had the right to withdraw the rails within one year by paying the duties then existing, viz. $17 per ton, or they might, after the expiration of one year, and within three years, withdraw the rails upon paying the duty of $17 per ton, and 10 per cent, additional duty. Rev. St. § 2970. Upon this point there can be no controversy. But the rails in question were not withdrawn until after the expiration of the three years, and hence, under the terms of section 2971, were to be "regarded as abandoned to the government.” But this right of the government was not enforced because the Oregon Pacific Railroad, for whose account the rails were imported, requested a postponement of the sale for three months on account of serious casualties that had occurred to its railroad. Other postponements were for like reasons made for periods of six months, and in the meantime the tariff acts designated as the "McKinley act” and the “Wilson act” were passed.
Admitting, at the threshold of the discussion, that the word "abandonment,” when first used in the act of August 5,1861 (12 Stat. 294, .§ 5), and repeated in the act of July 14, 1862 (12 Stat. 560, § 21), during the existence of war was then used in the broad sense of divesting the importer or owner of any title or interest in the goods, it does not necessarily follow that the same interpretation is to be .given to it in the provisions of section 2971. The fact is that by the act of July 28, 1866 (14 Stat. 330, § 10), the provisions of the act ■of August 6, 1846, were re-enacted, so that thereafter the law provided that, after the sale of the merchandise, the excess, after de
Without repeating the respective arguments of counsel in their review of the tariff legislation, the policy of the government in the collection of revenue duties on imported goods, and the rights of the importers to withdraw from bonded warehouses imported merchandise therein stored, we are of opinion that, after an extended examination thereof, it may safely he said that, throughout the entire legislation of this country upon the subject, the intent of congress to limit the right of the importer to withdraw his goods within a certain time, and to impose condition for his failure so to do, is made manifest. If there were no provisions in the statute for the sale of the goods by the government, it will readily he seen, as was said by Brown, J., in U. S. v. De Visser, 10 Fed. 642, 649, that:
“Tlie time for the payment of duties on all warehouse goods would be practically considerably enlarged, since payment of duties could always be safely deferred until the government was ready to effect a sale. To avoid this practical extension of the period for payment of duties, and to secure prompt payment within the time intended to be limited by the warehouse acts, some provision of this kind was necessary. Moreover, the handling of the vast amount of warehoused goods, the orderly collection of the duties upon them ■through the proper subordinate officers, and the necessity of a transfer of the goods to different hands, for the purpose of a government sale, — in other words, the convenience of the public business, — also required that a period be fixed when the importer’s right to pay the duties and to control 1he goods should cease, and when tlie government might proceed to sell without inconvenience and without question. The various acts passed since the adoption of the warehouse system show, I think, that the purpose of the statute in question was not only for convenience in the transaction of the public business, but especially, also, to secure the prompt payment of duties within the prescribed period.”
The argument of appellant, that the action of the secretary of the treasury in authorizing the various postponements of the sale of the rails had the effect to nullify the provisions of section 2971 with reference to the abandonment of merchandise remaining in the bonded warehouse beyond the period of three years, ought not to be sustained. It is true that, under the revenue laws, the secretary of the treasury, in the collection of the revenues, is invested with much discretion in the exercise of his administrative functions. He has the power to prescribe rules and regulations as to the modes of collection, etc.; but he cannot, in the exercise of this power, alter or amend the provisions of the revenue laws. “All he can do is
The action of the secretary of the treasury in postponing the sale of the merchandise after the expiration of three years did not have the effect of giving the importers any new privilege or right, or release them from any liability which existed by law. The regulation of the treasury department of February 27, 1884, that, “within the three years during which goods remaining in bonded warehouse may be withdrawn, collectors of customs will notify the parties concerned of the date on which the period limited by law will expire. After such date, and at any time before the goods are listed for sale, the collector may allow a withdrawal entry for consumption, to be made on payment of all charges and expenses, and the duties, regular and additional, which may have accrued,” — is consistent with the provisions of sections 2971 and 2972, and does not in any manner change or affect the rate of duty and the charges and expenses to which the merchandise had become liable. It is, in effect, the same as if a sale of the goods had been provided for. Attorney General Brewster, in reply to the third question of the secretary of the treasury, as to “whether, under section 2971, Rev. St., goods are to be sold at the expiration of three years from the date of importation, notwithstanding the fact that duties may have been already paid thereon,” said:
“While X am of opinion that your third, question should be answered in. the affirmative, and so answer it, I deem it proper to add that I perceive no legal objection to the existing practice of your department respecting the disposition of goods which have remained in bonded warehouse beyond three years. The objects'and requirements of the provisions of section 2971, last above adverted to, are, in my judgment, sufficiently met by that practice whereby, in lieu of a formal sale of goods, the owner, consignee, or agent is permitted to pay the duties, charges, etc., that have accrued thereon, and take them away. In ease of a sale, the owner, consignee, or agent of the merchandise would (under' section 2972) become entitled to receive the proceeds, after deducting therefrom the duties, charges, and expenses. The practice referred to accomplishes the same end, and is, indeed, a virtual sale of the goods under the power given the secretary of the treasury by the statute.”
The act of the secretary of the treasury in allowing the withdrawal of the rails in this case is not inconsistent with the provisions of section 297Í, .with reference, to the abandonment of the merchandise. The, secretary, in his letter to the collector of customs allowing the. withdrawal, expressly stated that a reference to the decisions of the department for a long series of years shows that it has .uniformly held that, the duties fqund .due .qn the, warehouse.
“It may bo that duties will be so paid under protest in order that the exaction of duty may be reviewed by the board of general appraisers. Should this prove to be the case, you are further authorized to delay the sale of the remaining property until a decision has been reached.”
Surely the importers cannot claim that they were released from any existing liability by reason of this extended favor. The withdrawal of a small portion of the goods was allowed in order to test, not to create, the liability of the Importers and the rights of the government in the premises.
The cose of Abbot v. U. S., 20 Ct. Cl. 280, decided April 27, 1885, is cited in support 91, and is conceded to he an authority in favor of, the position contended for by appellant. In that case the claimants were, on July 1, 1883, the owners of 66,575 pounds of wool lying in the United States bonded warehouse at Boston. The wool was imported from England, March 8, 1880, and placed in the warehouse, where it remained until August 31, 1883. It was then removed by the claimants. The duties were paid March 7, 1881. The claimants made a demand upon the collector of the port for $(565.75, a sum equal to the difference between the duties that had been levied and paid and the duty to which the wool was’ subject under the tariff act of March 3, 1883, and the court held that the claimants were entitled to the refund. The court, after quoting section 10 of the act of 1883, said:
“The language of this section, so far as it relates to goods upon which the duties had been paid, is very general. Taken by itself, it fully sustains the claimants’ demand, for their goods were in bonded warehouse when the act wont into effect, and the duties had been paid. The defendants, however, contend that the claimants can derive no benefit from this section, because their goods, having been in the bonded warehouse for more than three years, were abandoned to the government under section 2971, Iiev. St. This section provides that ‘any goods remaining in public store or bonded warehouse beyond three years shall be regarded as abandoned to the government, and sold under such regulations as the secretary of the treasury may prescribe.’ Standing by itself this section might support the defendants’ position. It implies that the title of the original owners, by lapse of time and operation of law, has become divested, and the government has succeeded to the ownership. The original act of .inly 14, 18(12 (12 Stab 5(50), from which this section is taken, was based upon that theory, and so it provided that the proceeds of sale should be paid into the treasury. The character of this provision and purpose of the government have been entirely changed by the act of July 28, 1808 (14 Stab 330), now section 2972, which provides that ‘the secretary of the treasury may pay to the owner, consignee, or agent of such merchandise, the proceeds thereof, after deducting duties, charges, and expenses.’ Since This enactment, the goods are no longer to he regarded as abandoned by the owner to the government. The ownership continues with*752 out change,- but after the sale attaches to the net proceeds instead of the goods. ' The two sections, construed together, provide a mode for the collection of duties and charges and the clearance of the warehouses. When the goods have remained in bond more than three years, the government acquires a right to sell them for the purpose named, but cannot pocket the proceeds. Hence the practice has arisen in the treasury department to allow the owner, at a:ny time before the goods are advertised for sale, to remove the sanie upon the payment of duties and charges.”
After quoting with approval the views of Attorney General Brewster as to the practice of the department allowing the owner to withdraw the goods upon the payment of duties, the court further said: ■
“Apparently congress intended that all goods remaining in the bonded warehouse .July 1, Í883,' and which, according to the construction and practice of the department' under sections 2071 and 2972, might be withdrawn by the consignee upon payment of duties and charges, should go upon the market with no heavier burdens than were to be imposed, under the new tariff, upon later importations.”
In so far as this opinion declares that the provisions of section 2971 have been changed by section 2972, so as to allow the importer to remove the goods, after they have been in the bonded warehouse beyond the period of three years, "upon the payment of duties and charges,” it is not opposed to the views we have expressed. The claimants in the present case were allowed to withdraw the goods in question upon payment of the duties and charges demanded by the collector. The question is, what amount of duty were the goods subject to?
The court, in the Abbot Case, seemed to be of opinion that, because of the provisions in section 2972, and the practice of the department in allowing the goods to be withdrawn, it was the intention of congress that the goods “should go upon the market with no heavier burdens than were to be imposed, under the new tariff, upon later importations.” In this respect we decline to accept the conclusions reached by the court of claims. The opinion is entitled to and has received respectful consideration, but it is not of controlling authority, and ought not to be followed unless its reasoning and .conclusion are deemed to be correct.
The case of In r.e Schmid, 54 Fed. 145, cited and relied upon by appellant; is different in its facts from the case at bar in this, that the goods in question in that case had not been in bond for a period of three years, and hence did not come within the provisions of section 2971.
Is section 2971 repealed by the subsequent tariff acts? We have already quoted at length in the statement of facts the various sections and provisions of the laws which are relied upon by appellant to' sustain his contention. They need not be again repeated in full. Section 29 of the administrative act repealed in direct terms several sections of the Revised Statutes, but among them section 2971 is not mentioned. It was not in direct terms repealed. The same section of the act also repealed “all other acts and parts of acts inconsistent” with its provisions, with a saving clause that such repeal or modification of the existing laws “shall not affect any act done, or any right accruing or accrued, * * * but all rights and liabilities under said laws shall continue and may be enforced
“The question then arises whether the sixty-sixth section oí the act of 1799 (chapter 22), has been repealed, or whether it remains in full force. That it has not been expressly or by direct terms repealed is admitted, and the question resolves itself into the more narrow inquiry whether it has been repealed by necessary implication. We say by necessary implication; for it is not sufficient to establish that subsequent laws coyer some, or even all of the cases provided for by it, for they may be merely affirmative, or cumulative, or auxiliary. But there must be a positive repugnancy between the provisions of the new law and those of the old; and even then the old law is repealed by implication only pro tanto, to the extent of the repugnancy. And it may be added that, in the interpretation of all laws for the collection of revenue, whose provisions are often very complicated and numerous to guard against frauds by importers, it would be a strong grouud to assert that the main provisions of any such laws, sedulously introduced to meet the case of a palpable fraud, should be deemed repealed merely because, in subsequent laws, other powers and authorities are given to the customhouse officers, and other inodes of proceeding are allowed to be bad by them before the goods have passed from their custody, in order to ascertain whether there has been any fraud attempted upon the government. The more natural, if-not the necessary, inference in all such cases is that the legislature intend the new laws to be auxiliary to and in aid of the purposes of the old la,w, even when some of the cases provided for may equally be within the reach of each. There certainly, under such circumstances, ought to be a manifest and total repugnancy in the provisions to lead to the conclusion that the latter laws abrogated and were designed to abrogate the former.”
See, also, Aldridge v. Williams, 3 How. 1, 25; The Distilled Spirits, 11 Wall. 356, 365; Fabri v. Murphy, 95 U. S. 196. 196.
In Fabri v. Murphy, the question was whether the merchandise was subject to the additional duty oC 10 per cent, imposed by the act of March 14, 1866 (14 Stat. 8). The goods were imported in November, 1869, and were stored in the bonded warehouse until March 20, 1871, when they were withdrawn for consumption. The court held that the goods were subject to the additional duty of 10 per cent, imposed by the act of 1866. In discussing certain acts relating to the revenue, the court said:
“Acts of congress of the kind are often very complex in their provisions, in order to enable those charged with their execution to protect the treasury against the constant attempts of importers to evade the payment of new duties or increased taxation. .New regulations often become necessary to enable the officers of the custom to defeat such designs, and the rule is that in*754 such cases there ought to be a manifest and irreconcilable repugnancy to warrant the conclusion that the old law is abrogated, or that the new law was intended to supersede the antecedent provision.”
In the light of these cardinal rules of construction, and of the history, policy, and intention of the revenue laws as hereinbefore discussed, we are of opinion that the provisions of section 2971 are not inconsistent with the various sections of the subsequent tariff acts hereinbefore referred to.
Attorney General Brewster, February 7, 1884, in reply to the question of the secretary, whether section 10 of the act of 1883 is necessarily limited to goods which had not been in bonded warehouses more than three years at the date said act went into operation, among other things, said:
“That, the first clause of this section, which deals with imports whereon, the duties have not been paid, applies only to such merchandise remaining in the public stores or bonded warehouses on the day the act takes effect as may then lawfully be entered for consumption, is indicated by the words ‘upon entry thereof for consumption,’ used therein. These words plainly show that the benefits of the provision were meant for merchandise in bond, which, at the time mentioned, the importer is entitled thus to enter, and for none other. * * * Thus, by the then and still existing law, goods in bond can be entered for consumption and withdrawn at any time during the period of three years from the date of original importation. Upon the expiration of this.period, however, the privilege so to enter such goods ceases, and (by section 2971, Rev. St.); they are to be ‘regarded as abandoned to the government, and sold under such regulations as the secretary of the treasury may prescribe,’ etc. It follows that merchandise whereon the duties have not been paid, which had been in the public stores or bonded warehouses more than three years on the day the act of 1883 took effect, does not come within the operation of section 10 of that act. * * * Under section 2977, Rev. St., merchandise upon which duties have been paid may thereafter remain in bonded warehouse in custody of the customs officers at the expense and risk of the owners. But the period during which it may thus remain subject to withdrawal by him is limited: for, unless withdrawn for consumption or exportation within three years from the date of original importation, it becomes liable to be sold as abandoned to the government. Rev. St. § 2971. * * * I am thus led to the conclusion that the whole of the section is inapplicable to merchandise which, on the day the act of 1883 took effect, had remained in bonded warehouse more than three years from the date of original importation, and were then, in contemplation of law, abandoned to the government. In direct answer to your first question I accordingly reply, that, in my opinion, section 10 of the tariff act of March 3, 1883, extends only to goods which had not been in bonded warehouse more than three years at the date that act went into operation. * * * The provision in section 2971 * * * has, I think, a double purpose: First, to enforce the collection of duties, charges, etc., upon the goods; and, second, to relieve their customs service from the care and custody thereof. * * Yet, as already observed, the privilege thereby conferred of letting the goods remain in warehouse in custody of the custom officers after payment, of the duties thereon is subject to the limitation of three years from the date of original importation under the operation of the above mentioned provision in section 2971. At the end of that period they are to be regarded as abandoned to the government, and sold.”
If section 2971 is consistent with the provisions of section 10 of the act of 1883, how can it consistently be said that it is repugnant to the sections of the McKinley or Wilson acts which we have cited? The preamble in the tariff acts must be read- in the light of what is contained in other parts of the laws, especially of the provisions
“Tliis merchandise was entered for consumption and delivered after August 1, and before August 28, 1804. when the act in question became a law. It was ‘ subject, then, to the rates of duty imposed by the law in force at that time, namely, the act of October 1, 1890, and the duties were properly assessed by the collector under that law, unless some provision to the contrary Is to be found in the act of August 28, 1891.'’
After quoting the preamble in the first section of tbe act of 1894, the court continues:
“The contention is that, the language of that section being free from all obscurity and ambiguity, there is no room for construction, and that the court is imperatively required to conclude that it was the intention of congress that the act should have a retrospective operation as of August 1, 1894, although it did not become a law until after that date. It is conceded that the general rule is, as stated in U. S. v. Heth. 3 Cranch, 398, 413, that ‘words in a statute ought not to have a retrospective application unless they are so clear, strong and imperative that no other meaning can be annexed to them, or unless the intention of the legislature cannot be otherwise satisfied,’ and that the usual course in tariff legislation has been, inasmuch as some time is necessary to enable importers and business men to act understandingly, to fix a future date at which the statutes are to become operative. The question is not one of construction, but of intention as to the operative effect of this act because of the existence of the particular date in section 1. In view- of the general rule and the admitted policy in respect of such laws, is there anything on the face of the act which raises such a doubt in the matter as justifies the court in considering whether the language used in lhat particular section must be literally applied in the case before it? And upon the threshold we are met with the fact (hat the act of October 1, 1890, was not repealed in 1erms until August 28, 1894, and that the repealing section of the latter act kept in force every right and liability of the government, or of any person, which liad been incurred or accrued prior to the passage thereof, and thereby every sueli right or liability was excepted out of the effect sought to bo given to the first section. The right of the government to duties under the tariff law which existed between August 1st and' August 28th was a right accruing prior to the passage of the act of 1894 (that is, the date when the bill became a, law); and the obligation of the importers between August 1st and August 28th to pay the duties on their entries under existing tariff law was a liability under that law arising prior to the passage of the act of 1894; and, if congress intended' that section' 1-*756 should relate back to August 1st, still the intention is quite as apparent that the act of October, 1890, should remain in full force and effect until the passage of the new act on August 28th, and that all acts done, rights accrued, and liabilities incurred under the earlier act, prior to the repeal, should be saved from the effect thereof, as to all parties interested, the United States included. The duties under consideration were paid August 8th, and the' merchandise delivered on August 11th, but it was not until August 28th that the fact was stamped on the entry that the goods were liquidated as entered. There was no change in the classification, and no additional duty was demanded or collected, and the payment made at the time of entering the merchandise for consumption was the payment of duties. Barney v. Rickard, 157 U. S. 352, 15 Sup. Ct. 642. The original assessment of duty was right, and the final liquidation was the same, and there was no specific provision in the act of 1894 requiring a liquidation at the rates under that act. How, then, can it be held that the act of October 1, 1890, was intended to be repealed by retroaction? Moreover, in arriving at the true intention of congress, we cannot treat section 1 as if it constituted the entire act, but must deduce the ’ intention from a view of the whole statute and from the material parts of it. * * * Again, a higher rate of duty was imposed on many articles by the act of 1894 than under the prior act, and a lower rate of duty on others, while some that were free were made dutiable, as, for instance, the article of sugar! Must duties paid between August 1st and August 28th be refunded where the rate was lowered, and assessed where the rate was raised, or a duty imposed where none existed? Clearly not. These considerations lead to the conclusion that the act ought not to be construed to operate retrospectively, contrary to the general rule, and so as to turn what was intended to secure a period of time to enable business men to act understandingly under the new law into a source of confusion and mischief to the contrary. * * * And, as the act of October 1, 1S90, was not repealed by the act of August, 1894, until the latter act became a law, when inconsistent laws were declared thereby repealed, we think it cannot be doubted that congress intended the rates of duty prescribed by the act of 1894 to be levied on the 1st day of August, if the bill should then be a law, and, if not, then as soon after that date as it should become a law. On the 1st day of August the duties prescribed by the first section of the act of 1894 could not be lawfully levied, and, so far as the importations in this case are concerned, and others similarly situated, the law required the exaction of the duties prescribed by the act of 1890. As to such importations the first section of the act of 1894 could not be literally carried out, unless by holding it to operate as a retroactive repeal, notwithstanding the saving clause, and this we consider altogether inadmissible. The language of section 1 was that on and after the 1st of August there ‘shall’ be levied, and of the second section that on and after the 1st day of August certain enumerated articles when imported ‘shall’ be exempt from duty. In our judgment, the word ‘shall’ spoke for the future, and was not intended to apply to transactions completed when the act became a law.”
Appellant relies upon tlie words “or withdrawn for consumption,” as found in the preamble of the Wilson act, to sustain the position that the rate of duties therein prescribed apply, not only to merchandise thereafter imported from foreign countries, but also to merchandise that had remained in the bonded warehouse for a period of moré than three years which should thereafter be “withdrawn for consumption.” It may be admitted that such a construction could and should be given to the language of the preamble, if its interpretation was to be drawn from that section alone. But it is the duty of the court to examine the entire act, or, at least, the provisions which have any special bearing upon the question, and also to examine the provisions of other acts which are to be construed in pari materia therewith. The entire revenue laws in force must not be overlooked. All acts not repealed must be taken into considera
Attorney General OIney, in a letter dated January 17, 1895, to the secretary of the treasury, with reference to rates of duty chargeable on certain goods which were originally imported while the provisions of the McKinley tariff act of 1890 were still in force, but remained in the custody of the government until after the passage of the Wilson tariff act of 3891, expressed views which we believe to be correct and directly applicable here. He said that, by the express language of section 3. of the act of 1894:
‘‘The new rat.es apply, not to all warehoused goods, as by section 50 of the act of 3890, but only to ‘articles [thereafter] imported from foreign countries, or withdrawn for consumption.’ The latter clause should be construed with the prior legislation above quoted, so as to consütute a harmonious whole. In my oitinion, therefore, goods imported and entered for warehouse prior to the act of 1894, and not withdrawn for consumption within three years from the date of original importation, are unaffected by the new rates of duty: and the ‘duties’ mentioned in section 2972 of lie Keyised Statutes are the duties to which they were previously subject, whatever be the construction to be put upon this section in other respects. My opinion applies, not only to goods imported within three years before the act of 1894 took effect, but to all goods theretofore imported and then subject to the tariff rates of 1890.”
For the reasons herein given we are of opinion that the contention of the appellee is correct. The judgment of the circuit court is affirmed, with costs.
