McKENNA
Circuit Judge.
The
facts of the case are stipulated by the parties, and are
recited in the opinion of the board of appraisers, as
follows:
'The
Bank of California, at various times between March 2 and
June 24, 1887, imported into the port of San Francisco
certain T steel rails, aggregating 5,678 tons. These rails
remained in general order unclaimed until February 27
1888, when warehouse entries thereof were made, and bonds
given by the Bank of California as the importer and
consignee. Said warehouse entries were liquidated under the
act of March 3, 1883, at $17 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 on the bonds against the merchandise.
Between September 21, 1888, and December 6, 1889, four
withdrawals for consumption were made, and the amount od
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 its 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, pending
decision regarding the legal status of the goods by the
board of
general appraisers. Under date of June 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 be entered for immediate
consumption or it could be 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 be
withdrawn for consumption. If in one year, 'on payment of
the duties and charges to which it may be subject by law at
that time'; if after one 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
goods, which was amended by section 54 of the McKinley act.
The section as amended is as follows, omitting a proviso,
with which we are not concerned:
'That
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 be subject by law at
the time of such withdrawal.'
The
difference between this section and section 2970, Rev. St.,
is that it makes but one period,-- three years,-- and
provides that the goods withdrawn any 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 and parts of acts inconsistent with the
provisions of this act are hereby repealed. But the repeal
of existing laws or modifications thereof embraced in this
act shall not affect any act done or any right accruing or
accrued, * * * but all liabilities under said law shall
continue and may be enforced in the same manner as if said
repeal or modifications had not been made. * * * '
Section
50 of the McKinley act, which is the only other one necessary
to quote in full, is as follows:
'Sec.
50. 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 the 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 act
also repealed all prior inconsistent laws, but saved all
rights which had accrued, by the same words as the
administrative act, supra. The Wilson act contained no
administrative provisions with which this case is concerned.
A claim, however, is based on its first section, which will
be referred to hereafter.
From
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 appraisers 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
withdrawal
of the merchandise for consumption; but the stipulation of
the parties is that this was to enable the right to be
tested, not to make the right. Besides, if the importers can
claim this...
