100 F. 442 | 9th Cir. | 1900
This is an appeal from the judgment of the circuit court (93 Fed. 954) sustaining the decision of the board of United States general appraisers that a cargo of anthracite coal imported from Wales into the port of San Francisco, Cal., which contained “less than ninety-two per centum of fixed carbon,” was subject to duty at the rate of 67 cents per ton, as provided by paragraph 415 of the act of July 24, 1897, entitled “An act to provide revenue for the government, and to encourage the industries of the United States” (30 Stat. 151-190), commonly known as the “Dingley Tariff Act.” The contention of the appellant is that the decision of the appraisers, and the judgment of the circuit court affirming it, are erroneous, in this: that anthracite coal is to be admitted free under paragraph 523 (30 Stat. 197). It is admitted that the coal in question is anthracite, and contains less than 92 per cent, fixed carbon. The respective paragraphs read as follows:
“(415) Coal, bituminous, and all coals containing less than ninety-two per centum of fixed carbon, and sbale, sixty-seven cents per ton of twenty-eiglit bushels, eighty pounds to the bushel.” “(523) Coal, anthracite, not specially provided for in this act.”
The ordinary and plain meaning of these paragraphs would seem to leave no doubt as to their proper construction. Read in pari materia, they are susceptible of but one meaning. Paragraph 415 provides a duty for all coals containing less than 92 per cent, fixed carbon. There is no exception stated, and no reference made to. other provisions of the act. There is no ambiguity or uncertainty in the language used. Paragraph 523: “Coal, anthracite, not specially- provided for in this act,” is placed on the free list. But, turning back to paragraph 415, it will be seen that all coal (which includes anthracite) that contains “less than ninety-two per centum
The customs duties imposed by the tariff acts are varied and extensive. . They necessarily cover a great variety of articles classified under different heads. It often happens that in certain paragraphs there are certain mixed articles named,, descriptive in their general character, and in other parts of the act there are other paragraphs, containing other descriptions, which might, if they stood alone, be sufficient to cover the same articles that are in the other paragraphs either generally or specifically described. In the light afforded by this condition of affairs, appellant argues that the words “containing less than ninety-two per centum of fixed carbon,” in paragraph 415, are not a specific description of any kind of coal, and cites authorities to the effect that when an article is designated by a specific name, and a duty imposed upon it by such náme, general terms in another part of the act, although sufficiently broad to comprehend such article, are not applicable to it, and contends that, inasmuch as anthracite coal is specifically designated by name in paragraph 523, it should be admitted free of duty, without regard to the question whether it contains more or less than 92 per centum of fixed carbon, and that paragraph 415 should therefore be read, “All coals containing less than ninety-two per centum of fixed carbon except anthracite coal must pay duty.” This position would be materially strengthened if the facts were as counsel asserts, that “anthracite is specifically designated, without qualification, in the free list.” But the fact is that it is not so designated. Anthracite coal is, it is true, specifically named; but it is to be admitted free, subject to the qualifying clause, “not specially provided for in this act.” This materially changes the meaning that might otherwise be attributed to it if this qualification had not been added. Appellant, however, argues that the added words do not modify the word “anthracite,” and that there are no other provisions in the act specially providing for “anthracite” by name. It is not denied that anthracite is coal, and that the words “all coal” in paragraph 415 would, if standing alone, without reference to paragraph 523, include anthracite coal; but this is met by the. statement of appellant that, in order to make the respective paragraphs harmonize from his standpoint, the words “except anthracite” must be injected into paragraph 415. But, if the court cannot see its way clear to amend that paragraph as suggested, counsel claims that the words in paragraph 523, “not specially provided for in this act,” should be either omitted from the act, or entirely disregarded by the court, in order that that paragraph might fully harmonize with paragraph 415 as amended in the manner contended for by him. We are asked to disregard these words because it may be that they were simply thrown in, as was said by the supreme court in Smythe v. Fiske, 23 Wall. 381, 23 L. Ed. 49, “out of abundant caution,” and that there was nothing for the phrase to operate on, because anthracite coal was not specifically mentioned or provided for by any other paragraph or section of the act. If “all coal” were not comprehensive enough to include anthracite as well as any other kind of coal, whether specifically named
“Wo agree with Mm as to the comprehensive character of the previous part of the sentence, if unqualified, but we dissent from his second proposition. To the latter we think there is a conclusive answer. The object of the statute was to increase The duties before imposed upon the things which it embraces. The title and the context alike show this. The preceding part of the section contains a very full enumeration of articles of silk, both manufactured and un-manufactured. It was evidently intended to be exhaustive. The last clause seems to have been added, as it is not unusual in such cases, out of abundant caution, that nothing might escape. Hence the phrase ‘not otherwise provided for’ was interposed, and meant to apply, not to preceding acts which may not have been present to the mind of the draftsman, and to which there was no necessity to recur, but to the preceding enumeration in the same section, which it supplemented. The section, thus construing this clause, covers the whole subject of silk, in all its variety of forms. It'was complete in itself. There was no need to refer generally or specially to any prior act.”
See, also, Movius v. Arthur, 95 U. S. 144, 147, 24 L. Ed. 420; Solomon v. Arthur; 102 U. S. 208, 212, 26 L. Ed. 147.
The clause in question is made in the present case absolutely clear by adding, perhaps out of abundant caution, the words “in this act,” so that no contention could possibly be made, that it applied to any other act.
There is another canon of construction, which, if strictly observed, leads with unerring certainty to the conclusion that tbe paragraphs in question mean just what the language thereof naturally imports. “The intention of the lawmakers is the law.” There are different methods of arriving at this intention. A comparison .of former legislation upon the same subject may be made for the purpose of ascertaining whether the general object and purposes of
“If the framers of the present act had not intended any change with respect to coals, other than in the dutiable rate, they would doubtless have adopted the descriptive language of the previous acts, in accordance with the long-established usage. In other words, if no change was intended, why add, in paragraph 415, the radically different language, ‘and all coals containing less than ninety-two per centum of fixed carbon,’ and in paragraph 52S the important qualifying words, ‘not specially provided for in this act’? Greenleaf v. Goodrich, 101 U. S. 281 [25 L. Ed. 845]. The protestant’s contention could not be sustained unless these new provisions were treated as meaningless.”
The board also referred to the Congressional Eecord, under date of June 30, 1897 (volume 30, pt. 2, 55tli Cong., 1st Sess., p. 2146), from which it clearly appears that the imposition of a duty at 67 cents per ton on “all coals containing less than ninety-two per centum of fixed carbon” was expressly intended by the lawmakers to cover anthracite as well as bituminous coal:
“Mr. Vest: Mr. President, as I understand this proposed amendment, it makes an entire revolution in the taxation upon coal. It puts anthracite coal upon the dutiable list, although a cursory examination of the paragraph would not leave that impression. I have not the amendment before me, but my recollection of it is that there is a duty of sixty-seven cents upon all bituminous coal, and all coal having less than ninety-two per cent, carbon, which would include anthracite coal. Mr. Allison: On coal containing less than ninety-two per cent, of fixed carbon, the duty proposed is sixty-seven cents a ton. Mr. Vest: That puts a duty upon anthracite coal.”
From whatever legal standpoint that can possibly be taken, under any authorized rules of construction of the provisions of the Dingley act, the conclusion is irresistible that congress intended that the respective paragraphs should be read just as they are written; and, so read, they are not susceptible of any other construction than that first given in this opinion.
“All cargoes of coal whatever, including all cargoes of anthracite coals as they come from the mine, or are loaded or imported in ships or dealt in commercially, contain less than ninety-two per cent, of fixed carbon, although sample lumps for custom house, picked at random from such imported cargoes, have averaged as high as ninety-four per cent, in fixed carbon.”
And it is claimed that under such facts it would convict congress of ai> absurdity to hold that It meant that ho anthracite coal should be admitted free, and that such would be the effect if the paragraphs are interpreted according to their plain meaning. The finding relied upon was not upon the material question involved in this proceeding. The controlling question was as to the percentage of fixed carbon which the cargo of coal in question contained. The court found that it was less than 92 per cent, of fixed carbon. Notwithstanding the testimony offered in this particular case, and which was to some extent conflicting, we must presume that congress acted intelligently, with full knowledge of all the facts; for it would he1 absurd for the court: to presume that congress did not know what it was doing when it passed the act in question. If it be true, as appellant claims, that no anthracite coal exceeds the per centum on which the duty is imposed, then the argument here made should be addressed to congress, with the view of securing a change in the law, instead of to the courts. We do not make the law, nor have we any right to amend it; and it is not within our province to question its wisdom, policy, or expediency. These a,re matiers that belong to an entirely separate department of the government. Our duty is accomplished when we judicially determine the interpretation of the language used by the lawmaking power. The judgment of the circuit court is affirmed, with costs.