UNITED STATES v. ALLEN, 58 F. 864

HAWLEY, District Judge. On the 6th of April, 1891, Charles R. Allen, appellee herein, brought this action to recover from the United States, appellant herein, the sum of $93.94 alleged to be due him as drawback under the provisions of the act of congress of March 3, 1883, (22 Stat. 511,) as amended by the act of June 19, 1886, (24 Stat. 81,) on certain bituminous coal by him imported into the United States, and subsequently consumed as fuel on the Humboldt, a steam vessel of the United States engaged in the coasting trade of this country. There is no controversy as to the facts.

The merits of the case are to be disposed of by determining the legal question whether or not the right of drawback given by the statutes above mentioned is repealed by the act of congress of October 1, 1890, (26 Stat. 600,) commonly known as the “McKinley Bill.” To intelligently present this question, it will be proper to refer to certain portions of the statutes which are necessary to be considered in order to arrive at a correct construction of the act. We quote (1) that portion of

Schedule N of the act of March 3, 1883, which reads as follows: ' “Coal, bituminous and shale, seventy-five cents per ton of twenty-eight bushels, eighty pounds to the bushel. A drawback of seventy-five cents per ion shall be allowed on all bituminous coal imported into the United States which is afterwards used for fuel on board of vessels propelled by steam which are engaged in the coasting trade of the United States, or in the trade with foreign countries, to be allowed and paid under such regulations as llie secretary of the treasury shall prescribe.”

(2) Section 10 of tbe act of Juno 19,1886, declares— “That the provisions of

Schedule N of ‘An act to reduce internal revenue taxation, and for other purposes,’ approved March 3, 188.'!, allowing a drawback on imported bituminous coal, used for fuel on vessels propelled by steam, shall he construed to apply only to vessels of the United States.”

(3) That portion of

Schedule N of the act of October 1,1890, which reads as follows: “Coal, bituminous and shale seventy-five cents per ton of twenty-eight bushels, eighty pounds lo the bushel; coal, slack or culm, such as will pass through a half-inch screen, thirty cents per ton of twenty-eight bushels, eighty pounds to the bushel.”

(1) Section 25 of the act of October 1, 1890, which declares — ■ “That where imported materials on which duties have been paid, are used in the manufacture of articles manufactured or produced in the United Slates, there shall bo allowed on tlio exportation of such articles a drawback equal in amount to tlio duties paid on the materials used, leas one per centum of such duties: provided that when the articles exported are made in part from domestic materials, the imported materials, or the parts of the articles made from such materials, shall so appear in tlie completed articles that the quantity or measure thereof may be ascertained. And provided further, that the drawback on any

article allowed under existing law shall be continued at the rate herein provided.

That the imported materials used in tbe manufacture or production of articles entitled to drawback of custom duties when exported, shall in all eases where drawback of duties paid on such materials is claimed, he identified, the quantity of such materials used and the amount of duties paid thereon shall be ascertained, tlie facts of tlio manufacture or production of such articles in the United States and their exxjoviation therefrom shall be determined, and the drawback due thereon shall bo paid to the manufacturer, producer, or exporter, to the agent of either or to the person to whom such manufacturer, producer, exporter or agent, shall in writing order such drawback paid under such regulations as tlie secretory of tlio treasury shall prescribe.” The act; of October 1, 1890, was evidently intended to he a complete revision of the tariff laws.

As was said in Ee Straus, “it manifests a plain intention to substitute that tariff act in the place and stead of all prior tariff legislation, so far, at least, as such legislation lays a duty upon imported articles of any kind.” 46 Fed. 522; Letter of attorney general, 19 Op. Attys. Gen. 687. It will be observed, however, that the act does not, in direct terms, repeal the drawback on coal. The question is whether the prior acts allowing this drawback are repealed by the clause in

section 55, “that all laws and parts of laws inconsistent with this act are hereby repealed.” It will be conceded, as claimed by appellant, that the omission from that portion of

Schedule A of the act of October 1, 1890, imposing a duty of 75 cents a ton on bituminous coal, of the drawback clause in relation to such coal contained in tbe act of March S, 1883, as amended by the act of June 19, 1886, of itself, indicates the intention of congress to abolish such drawback, and, if there were no other provisions in relation to this matter, would be conclusive upon the subject. But it is apparent that the question is not solved by a reference only to that portion of

Schedule N. The true meaning and intent of the act cannot be ascertained without a careful consideration of the provisions of

section 25. What does this

section mean? What was the intention of congress in inserting the second proviso, “that the drawback on any

article allowed under existing law shall be continued at the rate herein provided?” Does this section, in its entirety, deal exclusively with drawbacks upon exports? Is the word “article,” as used in the second proviso, to be construed as applying only to an exported article? In answer to these questions, we adopt the views expressed by Judge Ross in overruling the demurrer interposed by the United States, as follows: “It is urged on the part of the government that

section 25 deals exclusively with drawbacks upon exports, and that the word ‘article,’ in the second proviso, means and refers to an exported article, and to no other. An analysis of the

section does not sustain the contention. The

section provides in distinct terms for a drawback — First, on all articles wholly manufactured from imported materials, and thereafter exported; second, for a drawback 'on all articles made partly from imported materials, and thereafter exported. This language, as said by plaintiff’s counsel, covers every possible manufacture made in this country, whether wholly, or partially only, of foreign materials, and thereafter exported. These provisions are followed by the proviso that the drawback allowed ‘under existing law on any

article shall be continued at the rate herein provided;’ that is to say, the amount returned shall be that of the duty paid, less one per centum. There could be no; clearer recognition than is here expressed of the fact, that there were at the time of the passage of the act of October 1, 1890, existing laws providing for, drawbacks.. Among them, as has been seen, was the act of March 3, 1883,; as amended by that of June 19, 1886, giving a drawback on bituminous coal' imported into this country, and used on steam vessels of the United States.' This drawback was therefore, by the express language of the second pro-' viso of

section 25 of the act of October 1, 1890, continued, but at the rate; provided in that section, to wit, the amount of duty paid, less one per centum. This, it seems to me, is the natural and ordinary meaning of plain language.

There is not only no authority in the court to interject by construction the word ‘exported,’ as the attorney for the government contends should be done, before the word ‘article,’ in the proviso in question; but it would, in effect, be so to construe that proviso as to make it apply to drawbacks on exported articles specifically provided for in the preceding clauses of the section, — that is to say, to drawbacks on articles manufactured in this country, wholly or partially of foreign materials, and thereafter exported.

The court is not at liberty to say that congress meant by the words embodied in the proviso in question to provide for the same drawbacks it had immediately before made specific provision for, nor is it at liberty to hold that the legislature, in declaring ‘that the drawback on any

article allowed under existing law shall be continued at the rate’ specified in the section, did not mean what its language naturally and plainly imports.

It is true that ordinarily the office of a proviso is to restrain or qualify some preceding-matter, and will be so restricted, in the absence of anything in its terms, or in the subject it deals with, indicating an intention to give it other and broader effect; but where, as in the present case, to restrict it to the matter preceding it would, as has been shown, make it mean precisely the same thing as the clause to which it is appended, the language employed should be given the natural and ordinary meaning it conveys as an independent clause: ‘Like everything else,

interpretation has its limits, beyond which it cannot legitimately go. Where the legislative meaning- is plain, there is not only no occasion for rules to aid the

interpretation, but it is contrary to flic rules to employ them. The judges have simply to enforce the statute according to its obvious terms.’ Bish. Writ. Law, § 72; Thornley v. U. S., 133 U. S. 313, 5 Sup. Ct. 491. “The laws existing at the time of the passage of the act of October 1, 1890, allowing drawbacks, were not uniform. In some cases, a drawback was fixed at the amount of duties paid less ten per cent.; in others, the deduction was one per cent.; and by the act of March 3, 1883, the full amount of duty paid on bituminous coal was allowed as a drawback. Rev. St. §§ 3017, 3026; 18 Stat. 340; 23 Stat. 57. By the second proviso of

section 25 of the act of October 1, 1890, the amount of drawback allowed is placed on all articles at a uniform rale, with certain exceptions specially provided for elsewhere in (he act, as, for example, in paragraph 322, (2(5 Stat. 588,) in relation to salt. The provision of the act of March 3, 1883, in regard to that article, tvas as folloAvs: ‘Salt in bags, sacks, barrels, or other packages, twelve cents per one hundred pounds; in bulk, eight cents per one hundred pounds.

Provided, that exporters of meats, Avhether packed or smoked, Avhich have been cured in (he United States Avith imported salt, shall, npon satisfactory proof, under such regulations as the secretary of the treasury shall prescribe, that such meals lwA'e been cured AAith imported salt, Inn'e refunded to them from the treasury the duties paid on the salt so used in curing such exported meats in amounts not less than one hundred dollars.

And provided, further, that imported salt in bond may he used in curing fish taken by vessels licensed to engage in the fisheries and in curing fish on the shores of the navigable Avaters of the United States, under such regulations as the secretary of the treasury shall prescribe; and upon proof that the salt has been used for either of the purposes stated in this proAúso the duties on the same shall be remitted.’ 22 Stat. 514.

By the act of October 1, 1890, the order of the enactment is somewhat changed, hut it is in substance the same, and is as folloAArs: ‘Salt in bags, sacks, barrels, or other packages, twelve cents per one hundred pounds; in bulk, eight cents per hundred pounds.

Provided, that imported salt in bond may be used in curing fish taken by vessels licensed to engage in the fisheries and in curing fish on the shores of the naA'igable waters of the United States, under such regulations as the secretary of the treasury shall prescribe; and upon proof that the salt 1ms been used for either of the purposes stated in this proviso! the duties on the same shall he remitted.

Provided further, that exporters of meats, whether packed or smoked, which have been cured in the United States, Avith im-l>orted salt, shall, upon satisfactory proof, under such regulations as the secretary of the treasury shall proscribe, (hat such meats have been cured Avith imported salt, have refunded to them from the treasury the duties paid on the salt so used in curing such exported meats, in amounts not less than one hundred dollars.’ 26 Stat. 588. “This is cited on the part of the government as illustrative of the method adopted and pursued by congress in the act of October 1, 1890, when providing- for tlxe retention of existing drawback rights in respect to imported articles passing into home consumption, and not thereafter exported.

The ansAver to this is that in The case of the use of imported salt from the bonded Avarehouse in curing fish not exported, as permitted by the first provision of the al>OAre-cited paragraph of the act of 3890, there is a remission of duties, not the allOAvance of a drawback, which latter necessarily implies the former I>ayment of duty; and, in the case of the draAvbaek permitted by the second provision of the paragraph on imported salt used in curing meats aftenvards exported, the provision is that there shall be refunded frotm the treasury the duties paid on the salt so used in curing such exported meats, in amount not less than one hundred dollars.

It is manifest that these provisions could not be brought AA'iUim the general language employed in the second proviso of

section 25 of the act declaring that draAvbacks allowed ‘under existing law on any

article shall be continued at the rate herein provided;’ that is to say, the amount returned shall be that of the duty paid, less one per centum, and therefore a special proAusion in relation to salt became a necessity.’’ The judgment of the district court is affirmed.