Carriso, Inc. v. United States

• Decision Date: 18 September 1939
• Docket Number: No. 9098.,9098.
• Citation: 106 F.2d 707
• Parties: CARRISO, Inc., v. UNITED STATES.
• Court: U.S. Court of Appeals — Ninth Circuit

106 F.2d 707 (1939)

CARRISO, Inc., v. UNITED STATES.

No. 9098.

Circuit Court of Appeals, Ninth Circuit.

September 18, 1939.

Frank L. Lawrence and George R. Tuttle, both of San Francisco, Cal. (Charles F. Lawrence and Lawrence & Tuttle, all of San Francisco, Cal., of counsel), for appellant.

Frank J. Hennessy, U. S. Atty., and S. P. Murman, Asst. U. S. Atty., both of San Francisco, Cal.

Before DENMAN, MATHEWS, and STEPHENS, Circuit Judges.

MATHEWS, Circuit Judge.

Appellant, Carriso, Incorporated, brought this action against appellee, the United States, under § 24(20) of the Judicial Code, 28 U.S.C.A. § 41(20),¹ which provides that the district courts shall have original jurisdiction, concurrent with the Court of Claims, "of all claims not exceeding $10,000 founded upon the Constitution of the United States or any law of Congress, or upon any regulation of an executive department, or upon any contract, express or implied, with the Government of the United States, or for damages, liquidated or unliquidated, in cases not sounding in tort, in respect to which claims the party would be entitled to redress against the United States, either in a court of law, equity, or admiralty, if the United States were suable."

Appellee demurred² to the complaint³ on the ground that it "fails to state facts sufficient to confer jurisdiction upon the District Court." The court sustained the demurrer and dismissed the complaint. From the judgment of dismissal, this appeal is prosecuted.

The complaint states that appellant was at all pertinent times the operating owner of vessels which, as required by statutes of the United States, were entered and cleared at the port of San Francisco-Oakland; that between February 11, 1932, and August 13, 1937, in consequence of such entrances and clearances, the Collector of Customs at said port exacted of appellant, as entrance and clearance fees, $139.50 and, as fees for surveyors' services other than the admeasurement of vessels, $43.34, a total of $182.84; that said entrance and clearance fees were exacted pursuant to and upon the supposed authority of § 2654 of the Revised Statutes and regulations thereunder;⁴ that said surveyors' fees were exacted pursuant to and upon the supposed authority of § 4186 of the Revised Statutes and regulations thereunder;⁵ and that said fees were paid by appellant under duress and compulsion, in order to obtain clearance of its vessels, to prevent their seizure and forfeiture, and to avoid prosecution of their masters under statutes of the United States.

The complaint states further — and this, of course, is a mere conclusion of law — that §§ 2654 and 4186 of the Revised Statutes were repealed by § 4(S) of the Act of October 3, 1913,⁶ c. 16, 38 Stat. 114, 201, and by § 1 of the Act of March 3, 1933, c. 202, 47 Stat. 1428, 1431; that, therefore, said exactions were illegal; and that, having been illegally exacted, said fees should be refunded to appellant. Accordingly, judgment is prayed for $182.84.

Sections 2654 and 4186 of the Revised Statutes⁷ provided as follows:

"Sec. 2654. There shall be allowed and paid for the use of the collectors the following fees:

"First. To each collector for every entrance of any vessel of one hundred tons burden and upward, two dollars and a half.

"Second. For every clearance of any vessel of one hundred tons burden and upward, two dollars and a half.

"Third. For every entrance of any vessel under the burden of one hundred tons, one dollar and a half.

"Fourth. For every clearance of any vessel under one hundred tons burden, one dollar and a half."⁸

"Sec. 4186. The fees to be allowed and paid to surveyors shall be as follows: For the admeasurement and certifying the same, of any vessel of one hundred tons and under, one cent per ton; for the admeasurement of any vessel above one hundred tons and not exceeding two hundred tons, one dollar and fifty cents; for the admeasurement of any vessel above two hundred tons, two dollars; for all other services to be performed by such surveyor, on board any vessel of one hundred tons or upward, having on board goods, wares, or merchandise subject to duty, three dollars; for the like services on board any vessel of less than one hundred tons burden, having on board goods, wares, or merchandise subject to duty, one a half dollars; on all vessels not having on board goods, wares, or merchandise subject to duty, two-thirds of a dollar. * * *"

As applied to vessels of the United States, some, but not all, of the fees prescribed in §§ 2654 and 4186 of the Revised Statutes were abolished by § 1 of the Act of June 19, 1886, c. 421, 24 Stat. 79.⁹ So far, and only so far, as they related to the fees thus abolished, §§ 2654 and 4186 were repealed by § 1. Section 1 did not abolish fees for the entrance or clearance of vessels. It abolished fees for the admeasurement of vessels of the United States and for some, but not all, of the other services mentioned in § 4186. The complaint indicates that the surveyors' fees here involved were for services other than the admeasurement of vessels, but does not indicate the character of such services. We assume, therefore, that the fees involved were not fees which § 1 abolished. For an ambiguous pleading must, of course, be construed against the pleader. Hence, we conclude, § 1 did not repeal any pertinent provision of § 2654 or of § 4186.

Section 22 of the Act of June 10, 1890, c. 407, 26 Stat. 131, 140, provided: "That all fees exacted * * * by officers of the customs, except as provided in this act, under or by virtue of the existing laws of the United States, upon the entry of imported goods and the passing thereof through the customs, and also upon all entries of domestic goods, wares, and merchandise for exportation, be, and the same are hereby, abolished * * *." The fees referred to were those which formerly were exacted upon entries of goods. There was no mention of fees for entrance or clearance of vessels or for surveyors' services. Section 22 did not repeal § 2654 or § 4186 of the Revised Statutes, nor did it abolish any fees therein prescribed.

The Treasury Department did not interpret § 22 as repealing § 2654 or § 4186 of the Revised Statutes or as abolishing any fees therein prescribed. On the contrary, the Department continued to collect such fees, thus evidencing its belief that §§ 2654 and 4186 had not been repealed. Such collections were expressly provided for in Customs Regulations, 1908, Art. 1682, p. 697, promulgated January 2, 1908. Thereafter, § 22 was reenacted as subsection 21 of § 28 of the Act of August 5, 1909,¹⁰ c. 6, 36 Stat. 11, 102. By such reenactment, Congress approved and adopted the Department's interpretation. Brewster v. Gage, 280 U.S. 327, 336, 337, 50 S.Ct. 115, 74 L.Ed. 457; United States v. Dakota-Montana Oil Co., 288 U.S. 459, 466, 53 S. Ct. 435, 77 L.Ed. 893; Helvering v. Bliss, 293 U.S. 144, 151, 55 S.Ct. 17, 79 L.Ed. 246, 95 A.L.R. 207; Zellerbach Paper Co. v. Helvering, 293 U.S. 172, 179, 180, 55 S.Ct. 127, 79 L.Ed. 264; McFeely v. Commissioner, 296 U.S. 102, 108, 56 S.Ct. 54, 80 L. Ed. 83, 101 A.L.R. 304; United States v. Safety Car Heating & Lighting Co., 297 U. S. 88, 95, 56 S.Ct. 353, 80 L.Ed. 500; Hassett v. Welch, 303 U.S. 303, 310-313, 58 S. Ct. 559, 82 L.Ed. 858; Lang v. Commissioner, 304 U.S. 264, 270, 58 S.Ct. 880, 82 L.Ed. 1331, 118 A.L.R. 319.

Section 1 of the Act of August 24, 1912, c. 355, 37 Stat. 417, 434,¹¹ authorized the President to reorganize the customs service and provided that such reorganization should be communicated to Congress at its next regular session and should constitute, for the fiscal year 1914 and until otherwise provided by Congress, the permanent organization of the customs service. Accordingly, the President, on March 3, 1913, communicated to Congress a plan of reorganization, § 4 of which¹² provided:

"There shall be one collector of customs for each of the customs collection districts above established, who shall receive the compensation hereafter set forth, which shall constitute all the compensation and emoluments to be received by him and which shall be in lieu of all fees, commissions, salaries, or other emoluments of any name or nature * * * heretofore received by or allowed to him.

"All moneys collected or received by such collectors of customs in their official capacities, whether as fees * * * or otherwise, shall be covered into the Treasury."

The reorganization did not, expressly or by implication, repeal § 2654 or § 4186 of the Revised Statutes, nor did it abolish any fees. It did, however, require fees received by collectors to be covered into the Treasury, instead of being retained by them. To this extent only, § 2654 of the Revised Statutes was modified by the reorganization of the customs service.¹³ Section 4186 was unaffected by the reorganization.

Appellant quotes from Tariff Hearings, Committee on Ways and Means, 62d Congress, 1913, House Document 1447, pp. 6304, 6337, testimony of a witness (James F. Curtis, Assistant Secretary of the Treasury) to the effect that, in his opinion, subsection 21 of § 28 of the Act of August 5, 1909, "abolishes fees, except as specifically retained," and that the plan of reorganization which the President then¹⁴ had under consideration "will abolish the whole fee system if the President approves it." If, by this, the witness meant that, in his opinion, the fees prescribed in §§ 2654 and 4186 of the Revised Statutes had been abolished by subsection 21, or would be abolished by the proposed reorganization, he was in error. Whether that was or was not what the witness meant need not be considered.

Section 4(S) of the Act of October 3, 1913, supra, provided: "That, except as hereinafter provided, sections one to forty-two both inclusive, of the Act of August 5, 1909, supra and all Acts and parts of Acts inconsistent with the provisions of this Act, are hereby repealed: Provided, That nothing in this Act...