71 F. 505 | U.S. Circuit Court for the District of Northern California | 1895
The facts of the case are stipulated fey the parties, and are recited in the opinion of the board of appraisers, as follows:
“The Bunk of California, at various timos between March 2 and .Tune 24, 1887'. imported into the port of San Francisco certain T steel rails, aggregating 5,078 tons. These rails remained in general order unclaimed until February 27, 1888, when warehouse entries thereof were made, and bonds given bj the Bank of California as the importer and consignee. Said warehouse entries were liquidated under the act of March 3, 1883, at 317 per ton. and at the expiration of one year from the date of importation the additional duty of 10 per cent, prescribed by section 2970, Rev. St., was charged up ou the bonds against the merchandise. Between September 21, 1888, and .December 6, 1889, four withdrawals for consumption were made, and the amount of duties charged thereon was paid. When the bonded period of three years was about to expire, the Oregon Pacific Railroad Company, for whose account the steel rails in question had been imported, represented to the treasury department that serious casualties had occurred to ifs road by storms and floods, and requested a postponement of the sale of merchandise required under section 2971, Rev. St., whereupon the secretary of the treasury authorized a postponement of the sale for three months, without giving due notice to or having the consent of the principal or sureties on the warehouse bonds. Similar postponements have been allowed for periods of six months up to the present date, the Bank of California uniting in two instances in the application for delay. A postponement of the sale of merchandise allowed by the secretary of the treasury September 16, 1893, was conditioned upon the consent of the sureties on the bond. The final postponement was authorized by the secretary of the treasury March 25, 1895, flooding decision regarding the legal status of the goods by the board of*506 general appraisers. Under date of .Tune 30, 1890, — more than three years after the date of importation, — the secretary of the treasury authorized the collector at San Francisco to permit withdrawals for consumption of the steel' rails in question from time to time, in such quantities as might be desired’. On October 21, 1890, the treasury department decided that withdrawals might be made, under the act of 1890, by the importers, at the rates of duty, regular and additional, prescribed by the act of 1883. Notwithstanding this decision, 3,306 tons of the steel rails were withdrawn for consumption, and in addition to 10 per cent., as prescribed by section 2970, Rev. St., duties were paid thereon and accepted by the collector at $13.44 per ton, the rate prescribed therefor in the act of October 1,” 1890. All charges and expenses, including storage charges, having been paid, the importers recently offered to withdraw for consumption the remainder of the merchandise in bonded warehouse at the rate prescribed in paragraph 117 of the act of August 1, 1894. Permission to make such withdrawal has not been granted by the secretary of the treasury, but in lieu thereof authority was given the collector to permit withdrawal entry to be made by the importers of a small portion of the merchandise at the rates prescribed in the act of March 3, 1883, in order that a test case for judicial decision might be made. In accordance with the authority thus granted, entry for consumption of twenty of the rails in question (weighing about 5 tons) was made by the importers, and duty was assessed thereon by the collector at $17 per ton, and 10 per cent, additional under the act of March 3, 1883,— the act in force at the time the merchandise was imported. Against this action the importers protested, claiming that the merchandise in question, having been withdrawn for consumption after August, 1894, was properly dutiable at seven-twentieths of 1 cent per pound, in accordance with the provisions of section 1 and paragraph 117 of the present act.”
The tariff act of 1883 was in force at the time of the importation of the rails, and continued in force until the enactment of the act of 1890, known as the “McKinley Bill.” Under the latter act the duty was made $13 per ton, and under the act of August, 1894, known as the “Wilson Act,” it was made $7.84. As is well known, imported merchandise could he entered for immediate consumption or it could he entered for warehousing; and in the latter case there were certain provisions of law applicable to it. Section 2970, Rev. St., provided for the periods for which, and the terms upon which, merchandise could remain in bond without paying duty. It could remain for one or three years, ■and during such times it could he withdrawn for consumption. If in one year, “on payment of the duties and charges to which it may he subject by law at that time”; if after one year, and before the expiration of three years, “on payment of the duties assessed on the original entry, and charges, and an additional duty of ten per centum of the amount of such duties, and charges.” (The italics are mine.) After three years the permission to withdraw goods for consumption expired, and section 2971 provided that: !
“Any goods remaining in public store or bonded warehouse beyond 3 years shall be regarded as abandoned to the government and sold under such regulations as the secretary of the treasury may prescribe, and the proceeds paid into the treasury.”
But section 2972 provided that the secretary, in case of sale, may pay to the owner, etc., the proceeds thereof, after deducting duties, charges, and expenses. In 1890 congress enacted a law to simplify the collection of revenues, called the “Administrative Act,” section 20 of which provided for the withdrawal for consumption of bonded
“Thai any merchandise deposited in bond in any public or private bonded warehouse may be withdrawn for consumption within 3 years from the date of original importation on payment of the duties and charges to which it may he subject by law at the time of such withdrawal.”
The difference between this section and section 2970, Rev. St., is (hat it makes but one period, — three years, — and provides that the goods withdrawn tiny time within it shall be subject to the duty then provided by law. This act contained no provision for goods not withdrawn within three years, nor did the administrative act have such provision. If left provided for at all, it was by sections 2971 and 2972, Rev. St., supra,. The administrative act explicitly repealed a number of sections of the Revised Statutes, but not those sections, and added:
■ “And all other acts ami parts of acts inconsistent with the provisions of ihis act arc hereby repealed. But the repeal of existing laws or modifications 1 hereof embraced in this act shall not affect any act done or any right accruing or accrued, * * * but all liabilities under said law shall <•0111 inue and may lie enforced in the same manner as if said repeal or modifica! ions had not been made. * * *”
Section 30 of the McKinley act, which is the only other one necessary to quote in full, is as follows:
“See. 30. That on and after the day when this act shall go into effect all goods, wares, and merchandise previously imported, for which no entry has been made, and all goods, wares, and merchandise previously entered without payment of duty and under bond for warehousing, transportation, or any other purpose, for which no permit of delivery to the importer or his agent, has been issued, shall be subjected to no other duty upon the entry or the withdrawal thereof than if the same were imported respectively after that day: provided, that any imported merchandise deposited in bond in any public or private bonded warehouse having been so deposited prior To the first day of October, eighteen hundred and ninety, may be withdrawn for consumption at any time prior to February first, eighteen hundred and ninety-one. upon die payment of duties at the rates in force prior to the passage of this act: provided further, that when duties are based upon the weight of merchandise deposited in any public or private bonded warehouse said duties shall be levied and collected upon the weight of such merchandise at, the time of its withdrawal.”
The ad also repealed all prior inconsistent laws, but saved all rights wliieli had accrued, by the same words as the administrative act, supra. The Wilson act contained no administrative provision» with which this case is concerned. A claim, however, is based on Its first section, which will be referred to hereafter.
Prom this statement of the facts and the statutes, the question is, to what duty was the merchandise subject? The secretary of the treasury decided that of the act of 1883, or $17 per ton, and on grounds which apply to the whole importation. The board of ap: praisers decided that of 1894, or $7.84 per ton, but on grounds which confine the decision to 20 rails, or 5 tons, only. This is to be regretted, as it leaves us without the views of the board (necessarily valuable) of the relations of the acts of congress. The board based its decision on the act of the secretary in authorizing the with
The merchandise, as we have seen, was imported in 1887, and was entered for warehousing February 27, 1888, and the duties liquidated under the act of 1883, and a bond given by the importers to secure their payment. Under the law, the rights and liabilities of the importers were very plain. They could have withdrawn the merchandise for consumption in one year upon paying the duties, to wit, $17 per ton; that being the duty they were subject to, the law of 1883 being then in force. Or after said year, and within three years from June, 1887 (the date of the last importation), they could have withdrawn the merchandise upon paying such duty and 10 per cent, additional duty. Some of the merchandise was withdrawn before the expiration of three years, and the duties paid; but the greater part of it, including the rails in controversy, was not withdrawn, and on the 24th day of June, 1890, became subject to sections 2971-2973, Rev. St.; in other words, became to be regarded as abandoned to the government, and to be subject to sale by the secretary of the treasury to satisfy the then duty, to wit, $17 and 10 per cent, additional and charges. This was the status at that date — the right of the government — the liability of the merchandise indisputably, and were only not exacted or enforced because the Oregon Pacific Railway Company, for whose account the merchandise was imported; requested a postponement of the sale for three months, representing that serious casualties had occurred to its road. Other postponements by like request, the sureties on the warehouse bond consenting, for periods of six months, were given. Pending these periods, the tariff acts with the provisions, supra, were passed.
The question raised by these facts is direct: Did the right which undoubtedly accrued on the 24th of June, 1890, continue after the passage of the McKinley and Wilson acts? Or, using their saving language, was it not, regarding the government, “a right accruing or accrued”? Was it not, regarding the merchandise, “a. liability under a prior law,” continued under said acts? It seems necessarily that the answer must be in the affirmative. The government had a right, in the juridical sense of that word; that is, an enforceable claim. It came into existence in June, 1890, and existed for nearly two months before the passage of the administrative act, and might have been enforced during such time but for the solicitation!
'■‘And upon the threshold we are met witli the fact that the act of October 1. 1890, was not repealed in terms until August 28, 1891; and that the repealing section of the latter act kept in force every right and liability of the government or of any person which had been incurred or accrued prior to the passage thereof, and thereby every such right or liability was excepted out of the effect sought to be 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 rigid accruing prior to the passage of the act of 1891 (that is. the date when the bill became a law); and the obligation of the importers between August 1st and August 28(li to pay the duties on their entries under the existing tariff law was a liability under that low, arising prior to the passage of the act of 1894; and, if congress intended that section 1 should relate hack 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, rigids accrued, and liabilities incurred under the earlier act. prior to the repeal, should be saved from the effect thereof as to all jmrties interested, the United Slates included.”
This construction satisfies the natural meaning of the language of the acts, and gives effect, and consistent effect, to every provision. But without the provision of the acts saving rights and continuing liabilities accruing or accrued under prior la vs, it is disputable if the contention of the importers could be sustained under the ruling in Fabbri v. Murphy, 95 U. S. 191. In that case it appeared that sugar was imported in November, 1869, which was entered for warehousing. It was classified under the law then in force as “No. 12 Dutch Standard,” and the duty of three cents per pound assessed against it.
“That Ihe repeal of existing laws or modifications thereof embraced in this section shall not affect any act done or right accrued * * * before the said repeal or modifications; but all rights and liabilities under said laws shall continue and may be enforced in the same manner as if said repeal or modifications had not been made. * * *”
1 cannot, therefore, regal'd this case as authority.
The claimants contend that the Wilson act is even more comprehensive and conclusive than the McKinley act, and determines
“Be it enacted,” etc. “That on and after the first day of August, 1894, unless otherwise specially provided for in this act, there sliall be levied and collected and paid upon all articles imported from foreign countries or withdrawn for consumption and mentioned in the schedules herein contained, the rates of duty which are by the schedules and paragraphs respectively prescribed, namely: * * * 117. Railway bars made of iron or steel and railway bars made in part of steel T rails and punched iron or flat rails, seven-twentieths of one cent per pound.”
Section 72 repealed prior inconsistent laws, but preserved rights and liabilities which had accrued or arisen thereunder substantially in the same language quoted from the administrative and McKinley acts, supra. The efficiency of the section to the contention is in the words “withdrawn for consumption.” But what they mean has already been sufficiently explained. As we have seen, all the acts provide a period during which goods could remain in bond. ' They all fix it at three years, and it is only within this period that goods may be “withdrawn for consumption”; and hence it is to this period, and to what may be done within it, that the language of the section must be regarded as addressed. By so regarding it, no policy of the new act is. disappointed, as urged by counsel for claimants. Its policy undoubtedly was to reduce rates, but it was consistent — indeed, suitable — to have considered some things as done, some rights as having accrued, and to leave them undisturbed. Besides, we know that the authors and advocates of the measure in the house of representatives did not deem that its policy depended upon the use of the words “withdrawn for consumption” in the situation in which we find them in the act. They were inserted in the senate. Does the debate there show their purpose? Counsel say that it shows agreement between senators “presenting,” to quote counsel, “all shades of opinion on tariff policy on the following propositions: (1) That there should be the same rate for goods in bond as for those to arrive; (2) that goods withdrawn from bond should pay the same rate of duty as others; and (3) that the words of the amendment would certainly insure these objects.” Senator Hale, however, who participated in the debate, and who ought to have been in the center of its certainty and light, charged, without distinguishing by shades of tariff opinion, the most veteran senators with diversity on every proposition concerning the amendment, and said:
“While there is not anything partisan in the four simple words ‘or withdrawn for consumption,’ yet there were as ma.ny theories advanced as to what the amendment meant, and whether it ought to be in the bill or out, and as to whether it is found in áome other section of some other law, as there were senators who rose in their seats to discuss the matter.”
And, addressing the advocates of the measure' specially, he said:
“But let us at least be relieved from uncertainty; aftout what ought to be the plainest provision; and I appeal to the senator from Missouri [Mr. Vest], and through him to the senator from Arkansas [Mr. Jones], and through both of them to the senator from Tennessee [Mr. Hawes], and through all three of them to the senator from Texas [Mr. Mills], to let this matter go out for the present, and get together about the table in the room of the com*513 mii top, on finance, call in experts from both sides, and give us some language that is authoritative, and the meaning of which we know.”
But, assuming that agreement on the propositions stated by, counsel may be discerned in the debate, it may also be discerned what was meant by being “in bond,” and “withdrawn for consumption,” and that the amendment was only the repetition of existing law. These give us some guide to the meaning, and show that its general language was addressed to, and intended to provide for, a well-known condition, and was not intended to assimilate all conditions. See remarks of Senators Aldrich, Jones, Vest, Allison, and Sherman, Cong. Rec., May 10, 1894, p. 5430 et seq.
A question identical with the one at bar arose under the act of 1883, and was decided by Attorney General Brewster in accordance with the views herein expressed. 17 Op. Atty. Gen. 650. See, also, opinion of Attorney General Olney of January 17, 1895, substantially to the same effect.
I think, therefore, that the rails in controversy became subject to duty under the act of 1883, and to such duty the government had acquired a right before the passage of the McKinley and Wilson acts, which were preserved and continued by them. The decision of the board of general appraisers is therefore reversed.