UNITED STATES v. EDWIN S. HARTWELL LUMBER CO.; SAME v. JOHN SPRY LUMBER CO.; JOHN SPRY LUMBER CO. v. UNITED STATES, 142 F. 432

BAKER, Circuit Judge, after stating the case as above, delivered the opinion of the court.

Section 2774 of the Revised Statutes [U. S. Comp. St. 1901, p. 1862] allows the master of a vessel from a foreign country 24 hours within which to report the arrival.

Section 2785 [U. S. Comp. St. 1901, p. 1867] gives the consignee 15 days after the report of the master within which to present a written entry of his goods to the collector. From these provisions the importers contend that, the lumber having arrived within the collection district and part of it being “in port” before the new law took effect, they had 15 days in which to make entry, and therefore were entitled to enter the lumber free on the 26th irrespective of the effect of their tenders of entry on the 23 d and 24th. These sections are a part of the general .provisions concerning the collection of duties.

They apply generally to collections under any tariff law, and no doubt gave these importers 15 days in which to enter duty-free all lumber imported by them while the tariff law of 1894 was in force, unless the tariff law of 1897 cut off that part of the 15 days which extended beyond the time of the taking effect of the new law.

Section 33 of the new law (Act July 24, 1897, c. 11, 30 Stat. 213 [U. S. Comp. St. 1901, p. 1701]), provided: “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, * * * shall be subjected to the duties imposed by this act and to no other duty * * * And the first

section began: “That on and after the passage of this act, there shall be levied,” etc. The argument of the importers is this, briefly: The act became effective on its passage; that is, at 3:06 Chicago time, July 24th.

Section 33 requires the prior entry of goods, in order to escape the new duties, only in case of those imported previously to the-day on which the act took effect, namely, July 23d, and earlier days. This lumber was imported on July 24th, while the old law was in force.

The importers had the right under that law to enter the lumber duty-free, and the general statute giving them 15 days, applied because July 24th was not previous to July 24th, the day on which the new act took effect; and Congress meant this and expressed it deliberately by using the word “day” instead of “time”; because if, after a tariff act has passed both houses, the President should sign the act at 6 p. m., the customs houses closing at 4 p. m., an importer whose goods arrived at 4:10, who would have ample time to make his entry before 6 o’clock, would be deprived of his right of free entry under the then existing law by the mere circumstance that the custom house was closed.

The argument strikes us as being extremely forced and fanciful. What if the President should sign such

an act in the forenoon before the custom houses were open? What difference in right or in hardship could Congress have had in mind, on account of which q distinction should be made between goods arriving one minute before and those arriving one minute after midnight preceding the hour and minute the act should be signed? The general rule of law is that there are no fractions of a day. According to that rule the act of 1897 was in force throughout every one of the 24 hours of July 24th. . Congress, according to that general law, neither left nor intended to leave any hiatus of time between the end of July 23d and the minute of July 24th, at which the act was signed.

Section 33, by that rule, would require importers, in order to escape the new duties, to have their goods both “imported” and “entered” on or before July 23d. And courts have always acted on that rule whenever the parties have been unable or have omitted to show a narrower punctum temporis for a transaction. But there is an exception to the application of the rule: If it is necessary, in order to protect a completed act or to save a vested right, to prove the time by shorter measurement than days, the interested party may do so if he can. U. S. v. Stoddard, 91 Fed. 1005, 34 C. C. A. 175; U. S. v.

Iselin, 95 Fed. 1007, 36 C. C. A. 681; Nunn v. Brewing Co., 99 Fed. 939, 40 C. C. A. 190. Here, these importers, invoking the exception, have been permitted to split up the day and to prove the hour and minute when the act took effect. Having shown that the day when the act took effect was what remained of July 24, 1897, after 3:06 p. m., for one purpose, they should be held to the same day for all purposes of the case. Further, there is a reason in the history of the wording of

section 33 why it is clear that Congress in the act of 1897 intended to adhere to its established policy of requiring all goods “entered” subsequently to the taking effect of a new tariff to be subjected to the payment of the new duties, no matter when “imported.” The words of

section 33 “on and after the day when this act shall go into effect, all goods * * * previously imported for which no entry has been made * * * shall be subjected * * * ” were brought forward from previous tariff acts in which no stress could be laid upon the word “day” and in which “day” had no other significance than “date” or “time.” In the McKinley act, for instance,

section 50, Act Oct. 1, 1890, c. 1244, 26 Stat. 624, has the above-quoted phraseology of

section 33 of the Dingley act.

Section 1 provided that “on and after the 6th day of October, 1890, * * * there shall be levied, collected and paid upon all articles imported from foreign countries,” etc. ' In the McKinley act it would be impossible to juggle with the meaning of “day.” By using a stereotyped wording in the Dingley act, we think Congress never designed that “day” should 'have one meaning respecting “importation” and in the same phrase another as applied to “entry.” So the question is: Was this lumber both “imported” and “entered” before the act of 1897 became in force ?

What was the effect of the tenders of entry on July 23d and in the forenoon of the 24th? An offer to do is deemed equivalent to the act, if the offerer is under an obligation and at the time has the legal right to cancel his obligation and his adversary is under the legal ■duty to accept performance. In U. S. v. Legg, 105 Fed. 930, 45 C. C. A. 134, it was decided that, after an importation of goods was complete, a tender of entry before the Dingley act went into force was equal to an entry.

But it has never been held that a tender of entry of goods not then imported gave the consignee a vested right to be exempt of all duties save those in force when the tender was made. • The whole scheme of the tariff laws and the general statutes regulating collections contemplate that “importation” shall precede “entry.” The right of the government to duties does not accrue while the goods are at sea, even if the vessel has reached American waters and a collection district. U. S. v. Vowell, 5 Cranch, 368, 3 L. Ed. 128; Arnold v. U. S., 9 Cranch, 104, 3 L. Ed. 671; Meredith v. U. S., 13 Pet. 486, 10 L.

Ed. 258; Harrison v. Vose, 9 How. 372, 13 L. Ed. 179. Importation, etymologically the “bringing in” to this country from a foreign country, cannot be complete until the vessel has reached the end of her voyage, has performed her office of carrier or bringer with the intention of delivering her cargo to the consignees. At that moment, for the first time, accrue the right of the government to collect and the duty of the importer to pay. If the importer then tenders entry, it is the duty of the government to accept performance because the importer is under an obligation and at the time has the right to cancel it.

But these importers claim it was their right to tender entry and the collector’s duty to accept, while the vessels ■were under way. They were then under no obligation. There was nothing for them to offer to discharge. There was no debt or obligation for the collector to release. • An importer’s obligation and the collector’s duty with respect thereto come from the law; and an importer can neither make the law nor create an obligation on the government’s part without its consent.

As the lumber on the Toltec and the Miztec was not imported until after the Dingley act took effect, there is nothing in. the cross-appeal of the Spry Company. With reference to the lumber on the other vessels, it is claimed' that the importation was complete and entry tendered before 3:06-p. m. The docks at which lumber is unloaded are a long way up the Chicago river. The propeller Maine and its three barges in tow, before 3 o’clock were lying to in the harbor outside of the breakwater and were arranging for tugs to tow them to the docks.

The vessels having ceased to use their own motive power, had they ended their voyage with a view to discharging their cargoes? Was the breaking up of the tow for the vessels to be taken to the docks by tugs, equivalent to the unlading of cargo upon lighters? Waring v. Mobile, 8 Wall. 110, 19 L. Ed. 342; Gookin v. Ins. Co., 12 Gray, 501, 74 Am. Dec. 609; De Longuemere v. Ins. Co., 10 Johns. 120. Had the consignees the right to make entries before the masters of . the. vessels had officially reported the arrivals to the collector?

The respective counsel have exhibited great industry and learning in the discussion of these questions; but we find it unnecessary to formulate a determinative opinion thereon, because an affirmative answer would not affect the result in these cases. The tenders of entry at various times up to noon of July 24th were ineffectual because importation must precede entry. The record shows that the collector refused to accept the tenders and gave as his reason the fact that the vessels had not reported at the barge office.

Conceding for argument’s sake, that he-gave a bad reason and that the consignees were entitled to make their entries as soon as the vessels had concluded their independent voyages and had cast their lines to the tugs, without waiting for the-masters of the vessels to report at the barge office, it is enough to-say that the collector was under no duty to give any reason. That is, the consignees were asserting the right to enter their goods while the-vessels were at sea.

That assertion of right was unwarranted,, and' the collector’s answer in denial thereof (a bad answer being good.; enough for a bad complaint) cannot excuse the consignees from asserting a different right when, if ever, it accrued to them and the-* correlative duty on the part of the collector arose. And that is the distinction between the present case and Tacey v. Irwin, 18 Wall. 549, 21 L. Ed. 786, and other like cases, wherein there was an existent? right of the property owner, personally or by agent, to pay the tax;,, and an existent duty of the collector to accept payment when’ tendered.

The consignees in this case were mere volunteers, intruders-upon the collector’s attention. Having no right to make the entries^, they can predicate no right upon the tenders and refusal. Having no-business at the collector’s office, they cannot create an estoppel against-the government out of his remarks any more than if they had accosted him on the street a week or a year in advance of an importa.tion. To have made a tender that equaled an entry, on the theory most favorable to them they should have presented their papers after the vessels were in and should have based their demand upon that fact.

At the hearing in the Circuit Court oral testimony was given that the agents of the lumber companies remained in and about the collector’s office until it closed for the day. If this is properly in the record, it is of no avail. After the vessels were lying to, no tender was made nor was the collector advised of the change in conditions which might require him to act. On the cross-appeal of the Spry Company, the decree is affirmed; on the appeals of the government against the Hartwell Company and the Spry Company, the decrees are reversed with directions to proceed consentaneously hereto.