49 F. 561 | 6th Cir. | 1892
The question of law presented by the record in this case is whether the duty on reimported whisky, once exported, of the product or manufacture of the United States, should be levied and collected on the quantity thereof imported and entered into a customs warehouse under bond, or upon the quantity actually withdrawn from such warehouse. The material facts of the case on which this question arises are the following: Five barrels of whisky, having the serial numbers 1168, 1169, 1170, 1171, and 1172, and manufactured in the United States, were exported to a foreign country before any internal revenue tax had been assessed and paid thereon. This whisky was re-imported into the United States on January 6, 1890. The importers executed a warehousing bond, as required by law, and the spirits were entered into the customs bonded warehouse at Louisville, Ky., in January, 1890. The 5 barrels, as gauged by the customs gauger at or about the time of such entry in the warehouse, were found to contain 162 taxable gallons. The appellant, as the importer and consignee thereof, withdrew said 5 barrels of whisky from the bonded warehouse on November 28,1890, and was required to pay the tax on 162 gallons, the original quantity entered into warehouse, at 90 cents per gallon, amounting to $145.80. n The actual quantity in the 5 barrels at the time of the withdrawal was 155 gallons, 7 gallons having evaporated or been lost while in the customs warehouse. The appellant, as the 'importer, insisted that it was not liable to any tax or duty except on the 155 gallons shown by the regauge to be in the 5 barrels at the date of their withdrawal. The surveyor of the port at Louisville, acting as the collector of customs, decided that appellant should pay duty on the 162 taxable gallons originally entered into the warehouse, and that it was not entitled to any deduction or allowance on account of the loss of the seven gallons between the date of entry and withdrawal of the whisky. The appellant paid the tax or duty of 90 cents per gallon on said 7 gallons of lost spirits under protest, claiming that the exaction was unauthorized and illegal, because the provisions of the Revised Statutes of the United States required the tax to be assessed by the weight of the goods, and by the fiftieth section of the act approved October 1, 1890, known as the “McKinley Bill,” it was provided that, when duty is based upon the weight of merchandise deposited in any public or private-warehouse, said duty shall be levied and collected upon the weight of said
After said board of general appraisers had, in obedience to its order, made this return to the circuit court as provided by the said act, which,
The appellee or attorney for the United States has moved to dismiss said appeal because this court has no jurisdiction to entertain the same. In support of this motion, it is insisted that under the foregoing provisions of the fifteenth section of the act of June 10,1890, the lower court could only allow the appeal to the supreme court of the United States. Said section did not confer any absolute right of appeal on the part of the applicant for review from the decision of the circuit court; but said court, or the judge making the decision, was authorized and empowered “to allow an appeal to said supreme court” in case the court or judge should be of opinion that the question involved was of such importance as to require a review of the decision by the supreme court of the United States. When said act of June 10,1890, was passed, and went into operation, appeals could be taken and allowed from decisions of the circuit courts to the supreme court alone. No other court had or possessed appellate jurisdiction in respect to such decisions. By the act approved March 3,1891, the circuit court of appeals was established and invested with appellate jurisdiction to review by appeal or by writ of error final decisions in the district and circuit courts, in all cases other than those provided for in the fifth section of said act, “unless otherwise provided by law.” By the fifth section of said act the cases are defined and enumerated in which appeals and writs of error may be taken from the district and circuit courts direct to the supreme court. It is not claimed that the present is one of the cases therein enumerated, which have to be taken for review to the supreme court; but it is claimed that it does not come within the provisions of the sixth section of said act, because, while not embraced in the fifth section, it is “otherwise provided by law” that the appeal shall be allowed, if at all, to the supreme court,— in other words, that the appeal to the supreme court under the fifteenth section of the act of June 10, 1890, is excepted from the jurisdiction of this court under the sixth section of the act of March 3, 1891, by force of the words, “unless otherwise provided by law.” This construction of the two acts would lead to the result of practically depriving this
Upon the merits of the case the appellant has assigned the following errors as grounds for reversal of the judgment below; in that the court erred in sustaining the demurrer; in approving and affirming the decision of the collector and hoard of general appraisers in holding that the customs duty imposed by law upon such whisky is not “based upon the weight of merchandise;” in deciding that the duty upon the whisky should ho collected upon the quantity thereof at the time it was entered into bond, and not upon the actual quantity at the time of withdrawal for consumption; and in dismissing the application for review of the decision of the customs officers. These assignments of error involve only the one general question, whether, under the law, the appellant was properly chargeable with the 90 cents per gallon tax on the 7 gallons of the whisky lost between the date of entry into bonded warehouse and the withdrawal of the 5 packages or barrels. While the amount immediately involved is small, it appears that the present is a test case upon the question, which involves large amounts. The general proposition contended for by appellant is that the duty to he levied, collected, and paid upon the reimported whisky in question is to he ascertained by the quantity of taxable gallons thereof at the time of withdrawal, and not at the time of entry into bonded warehouse. By the tariff acts of March 8, 1883, and October 1,1890, it is provided—
“That upon reimported articles, once exported, of the growth, product, or manufacture of the United States, upon which no internal tax has been assessed or paid, * * * there shall be levied, collected, and paid a duty equal to the tax imposed by the internal revenue laws upon such articles.”
The duty on the five barrels of whisky reimported by appellant is thus made “equal” to that imposed by the internal revenue laws; and it is claimed by appellant in support of its position that as, by the provisions
“That on and after the day when this act shall go into effect, (October 6, 1890,) 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 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 1st. day of October, 1890, may be withdrawn for consumption at any time prior to February 1, 1891, upon the payment of duties at the rate 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 mer-. eha'ndise at the time of its withdrawal.”
The five barrels of whisky in this case were reimported while the act of March 3,1883, was in force, and were deposited in bond in the customs warehouse prior to October 1, 1890, and being withdrawn prior to February 1,1891, were subject to the rate of duty prescribed, not by the act of October 1,1890, but by the act of March 3, 1883, under the first’ of the above provisions.. It is therefore a question by no means free from doubt whether'the second proviso of said section, which may have reference to importations under the act of October 1, 1890, has any'-application to the present case. But, conceding that it does, the ques-tion is presented whether the duty imposed on reimported whisky, either under the tariff act of 1883 or 1890, is based upon the “weight” thereof,within the true import or meaning 'of said second proviso. Both 'of1' said acts .contained in almost every schedule thereof numerous articles' in respect to which the duty was based upon the weight of such articles, according to the avoirdupois standard, such as pounds, tons,' 'etc!' The terms of said provision, “when duties are based upon the weight of-merchandise,” may therefore find ample subjects of application if taken in their usual and ordinary sense, or if the word “weight” is given in its primary and ordinary meaning, such as the quantity of heaviness,' the quality of being heavy, or the degree and extent of downward pressure under the influence of gravity, or the quantity of matter as estimated by the balance or scale. ‘ ;
Counsel for'appellant, however, argues with much ingenuity that the words “weight of merchandise,” as employed in said proviso, embracé' and include all quantity measure depending upon the specific, gravity of-the matter, article, or thing measured; that, under the internal revenue law, there'is a difference between'“proof-gallon” measure and “gallon” measure, in this: that the latter is a measure by quantity of volume or bulk* while the former is a measure of quantity, not by
It is urged that under the authority of Brown v. Maryland, 12 Wheat. 447, defining the time when the power of the state to tax imported goods attached, the court should so interpret the customs laws as to make the duty attach at the time of withdrawing the goods for consumption, rather than the date of entry into bonded warehouse. The tariff legislation of congress has not been heretofore so construed by the supreme court of the United States. On the contrary, the general rule has been recognized and, enforced that the assessment of duties on im