Santoni & Co. v. Rafferty

• Decision Date: 01 March 1926
• Docket Number: No. 222.,222.
• Citation: 10 F.2d 788
• Parties: SANTONI & CO., Inc., v. RAFFERTY, Collector of Internal Revenue.
• Court: U.S. Court of Appeals — Second Circuit

10 F.2d 788 (1926)

SANTONI & CO., Inc., v. RAFFERTY, Collector of Internal Revenue.

No. 222.

Circuit Court of Appeals, Second Circuit.

March 1, 1926.

Thomas & Friedman, of New York City (Joseph H. Hazen and Stanleigh P. Friedman, both of New York City, of counsel), for plaintiff in error.

William A. De Groot, U. S. Atty., of Brooklyn, N. Y. (Howard Osterhout, Asst. U. S. Atty., of Mineola, N. Y., of counsel), for defendant in error.

Before ROGERS, HOUGH, and HAND, Circuit Judges.

HAND, Circuit Judge (after stating the facts as above).

We could dispose of this case merely by saying that the Act of February 4, 1909 (Comp. St. § 6123), did not repeal section 3 of the Foraker Act (31 Stat. 77 Comp. St. § 3749), which therefore imposed the tax, even of section 300 of the War Revenue Act of 1917 (Comp. St. 1918, § 5986a) and section 600 of the War Revenue Act of 1918 (Comp. St. Ann. Supp. 1919, §§ 5986e-5986i) did not specifically do so. The supposed repeal confessedly rests in implication, which is never favored, and which in this case depends upon the canon that a later specific statute repeals an earlier general one. That, like all other canons of statutory construction, is no more than a lamp in the dark, and is useless in a plain case. By the decision in Anderson v. Newhall, 161 F. 906, 88 C. C. A. 511, Congress was erroneously advised that section 3 of the Foraker Act did not cover bay rum. It is plain that the act of 1909 was passed to supply that casus omissus. Thus the argument, to succeed, must survive this paraphrase: Congress meant to repeal an act, which it supposed to omit a tax, by enacting another to supply the omission. The mere statement of the argument was impossible before Jordan v. Roche, 228 U. S. 436, 33 S. Ct. 573, 57 L. Ed. 908, and it becomes even colorable only by imputing retroactively to Congress acquaintance with a fact of whose opposite it had been assured when it passed the law. We decline to follow such fantastic casuistry.

Moreover, in our judgment, section 300 of the War Revenue Act of 1917 and section 600 of the War Revenue Act of 1918 of themselves impose the tax. Here the plaintiff's argument rests upon the inaptness of the phrase, "imported into" the United States, when applied to Porto Rican spirits. Certainly that was so ruled in De Lima v. Bidwell, 21 S. Ct. 743, 182 U. S. 1, 45 L. Ed. 1041, and we agree that prima facie the argument is good. Further, we assume that both sides would agree that Porto Rican bay rum was not "produced" in the United States. Downes v. Bidwell, 21 S. Ct. 770, 182 U. S. 244, 45 L. Ed. 1088; Balzac v. Porto Rico, 42 S. Ct. 343, 258 U. S. 298, 66 L. Ed. 627.

Hence it is argued to be outside the...