Kohlsaat v. Murphy

• Decision Date: 01 October 1877
• Parties: KOHLSAAT v. MURPHY
• Court: U.S. Supreme Court

96 U.S. 153

24 L.Ed. 844

KOHLSAAT v. MURPHY.

October Term, 1877

ERROR to the Circuit Court of the United States for the Southern District of New York.

The facts are stated in the opinion of the court.

Mr. Freeman J. Fithian for the plaintiffs in error.

The Solicitor-General, contra.

MR. JUSTICE CLIFFORD delivered the opinion of the court.

Repeal by implication of revenue and collection laws, except when the prior laws have been subjected to a general statutory revision, are not favored in legal decision, unless it appear that the prior provision has been re-enacted in the new regulation, or that the later act is repugnant to the former; and the Revised Statutes provide in express terms that, whenever an act is repealed which repealed a former act, such former act shall not thereby be revived unless it shall be expressly so provided. Rev. Stat., sect. 12, p. 2.

Six invoices of merchandise were imported into the port of New York, designated as embroidered slipper-patterns, being the ordinary slipper-patterns made of cotton canvas cut into strips of the size and shape for slippers, more or less embroidered with worsted and silk. Due entry of the goods described in the invoice was made at the custom-house of the port; and enough appears to show that the collector liquidated the duties at thirty-five per cent ad valorem, holding that the importations were subject to duty under the last clause of sect. 6 of the act of June 30, 1864, as other manufactures of cotton not otherwise provided for, certain articles of cotton manufacture therein previously named being declared subject to the same rate of duty. Appeal to the Secretary of the Treasury and due protest by the importers are admitted.

Payment was made by the importer under protest; and his executors instituted the present action of assumpsit in the State court, subsequently removed into the Circuit Court, and there prosecuted, to recover the excess of duty which, as they allege, the collector unlawfully exacted, and which the importer was compelled to pay to get possession of his goods. Protest was made upon two grounds: 1, That the goods were duty free under the act of March 2, 1861 (12 Stat. 195); or, 2, that the goods were subject to a duty of ten per cent ad valorem only, under the act of July 14, 1862, entitled an act increasing temporarily the duties on imports. Id. 650.

Instead of that, the United States contended in the court below, and still contend, that the decision of the collector, as approved by the Secretary of the Treasury, is correct, and that the goods imported were subject to an ad valorem duty of thirty-five per cent.

Appropriate issues being joined, the parties went to trial, and the verdict and judgment were for the defendant. Exceptions were taken by the plaintiffs, and they sued out the present writ of error.

Questions of fact were determined by the jury, and the questions of law presented for decision are the same as those raised in the protest; or, in other words, the plaintiffs still maintain the two theories there set up: 1. That the goods imported were duty free; 2. That, if they were not duty free, they were subject only to an ad valorem duty of ten per cent.

Import duties of ten per cent ad valorem were imposed by the act of June 30, 1864, on lastings, mohair cloth, silk, twist, or other manufactures of cloth, woven or made in patterns of such size, shape, and form, or cut in such manner, as to be fit for shoes, slippers, boots, bootees, gaiters, and buttons exclusively, not combined with india-rubber, which duty, it will be observed, is imposed upon the enumerated articles by name.

Extensive lists of enumerated goods made of silk or wool, as well as of cotton, are also given in the fifth, sixth, and eighth sections of the act, which are made subject to the duty or rate of duty there provided. Manufactures of silk, or of which silk is the component material of chief value, not otherwise provided for, are there made subject to a duty of fifty per cent ad valorem. Provision is also made that all manufactures of wool of every description, made wholly or in part of wool, not otherwise provided for, twenty-four cents per pound, and, in addition thereto, forty per cent ad valorem. Cotton goods, to a large extent, are placed in the enumerated list; but the further provision is, that all other manufactures of cotton, not otherwise provided for, shall be subject to a duty of thirty-five per cent ad valorem.

Goods of the kind imported, if made of cotton, were, beyond all doubt, when that act went into operation, subject to a duty of ten per cent ad valorem, under the clause enumerating that class of goods and imposing that rate of duty. 13 id. 208.

Rates of duty on these articles remained unchanged from that time until the passage of the joint resolution of the 2d of March, 1867, which repealed the paragraph in sect. 5 of the act of June 30, 1864, enumerating the articles, and imposing a duty of ten per cent ad valorem on the same. Wool is also included in the repealing clause; but that circumstance does not diminish the effect of the argument, as every article enumerated in the paragraph in question is specifically named in the repealing joint resolution. 14 id. 511.

Customs duties from that date were levied and collected on all the articles enumerated in that paragraph, if manufactured of cotton, at the rate of thirty-five per cent ad valorem; the ruling of the department being, that the repeal of the clause enumerating the articles left the same dutiable under the clause imposing a duty of thirty-five per cent on all manufactures of cotton not otherwise provided for in the same act.

Manufacturers of buttons complained that their business could not bear so high a rate of duty, and Congress, at their request, amended the joint resolution referred to, and took buttons out of its operation, the effect of which was that lastings, mohair cloth, silk, twist, or other manufactures of cloth, woven or made in such manner as to be fit for buttons exclusively, became dutiable under the clause repealed by the before-mentioned joint resolution, and only at the rate of ten per cent ad valorem.

Collated in this manner, these statutory regulations are as plain in their construction as any thing which depends upon a revenue act of Congress well can be. Cloth of the kind intended for buttons is dutiable at ten per cent ad valorem; but all the other articles of manufactured cloth, woven or made of cotton, in patterns of such size, shape, and form, or cut in such manner, as to be fit for shoes, slippers, bootees, or gaiters, are dutiable under the clause embracing manufactures of cotton not otherwise provided for, at the rate of thirty-five per cent ad valorem.

Attempt at one time was made, as indicated in the second ground of the protest, to maintain the proposition that the repeal by the joint resolution referred to, of the enumerating paragraph in the act of June 30, 1864, revived the same provision in the act of July 14, 1862, which imposed the same duty as the repealed paragraph. 12 id. 550; Butler v. Russell, 11 Int. Rev. Rec. 30.

Eminent counsel urged the proposition; but the court held otherwise, for reasons which are entirely satisfactory. Nor is it necessary to examine that question, as the plaintiffs in this case abandon that theory, and rest their case entirely upon the first ground assumed in the protest,—that the goods imported are exempt from duty; or, in other words, that the effect of the joint resolution under consideration was to repeal the paragraph in the two prior acts, to wit, the act of 1864 and the act of 1862, and to revive the corresponding...