Goods arriving at the port of New York August 7, 1894, entered
at the custom house and duties paid August 8, 1891, and the entry
liquidated as entered at the custom house August 28, 1894, on which
day the Tariff Act of August, 1894, became a law without the
signature of the President, were subject to duty under the Act of
October 1, 1890, and not to duty under the Act of August 28,
1894.
The provision in section 1 of the Tariff Act of 1894, which took
effect August 28 of that year, that from and after the first day of
August, 1894, there shall be levied, collected, and paid upon
articles imported from foreign countries the rates of duty
prescribed by that act, does not apply to transactions completed
when the act became a law.
The third question from circuit court of appeals is too general,
and need not be answered.
Burr & Hardwick, importers, made an importation of cotton
laces, per the
La Navarre, from Havre. The vessel arrived
on August 7, 1894, and the goods were entered by them for
consumption at the port of New York on August 8, 1894. Duty thereon
was levied and assessed by the collector of customs at sixty
percent
ad valorem under the provisions of Schedule J,
paragraph 373, of the Tariff Act of October 1, 1890, which was then
in force. The duty was paid by the importers on August 8, and the
goods were delivered to them on August 11, 1894. On August 28,
1894, the entry of the merchandise was liquidated at the
customhouse as entered -- that is to say, without any change of the
duties from those assessed at the time of entry.
On that day, the Tariff Act of that year became a law, and on
September 7, 1894, the importers filed their protest, claiming that
said cotton laces were dutiable at fifty percent
ad
valorem under paragraph 276 of Schedule J of the Act of
August, 1894, and were not dutiable under the Act of October 1,
1890.
The board of general appraisers affirmed the decision of the
collector, General Appraiser Somerville delivering the opinion.
Page 159 U. S. 79
The importers appealed to the circuit court, and the return of
the board was therein duly filed with the record, and evidence
taken by them, together with a certified statement of the facts
involved in the case and their decision thereon. Evidence was taken
in the circuit court before one of the general appraisers as an
officer of the court as to the legislative history of the Act of
August 28, 1894, from which it appeared:
"(a) That the bill was introduced in the House of
Representatives on December 19, 1893, House Bill H.R. 4864."
"(b) That it passed the House of Representatives on February 1,
1894."
"(c) That as it then passed the House of Representatives the
date in sections 1 and 2 was as follows: 'On and after the first
day of June, 1894, unless otherwise specially provided for in this
act,' etc."
"(d) That the bill was laid before the Senate February 2, 1894,
and referred to the finance committee."
"(e) That the bill was reported by the finance committee on
March 20, 1894."
"(f) That sections 1 and 2 of said bill, when so reported,
contained the date of the 30th day of June, 1894, instead of the
1st day of June, 1894."
"(g) That said bill, as amended by the Senate, passed the Senate
on July 3, 1894."
"(h) That, when it passed the Senate, the date contained in the
first and second sections thereof was August 1, 1894, instead of
the 30th day of June, 1894."
"(i) That the bill, as amended in the Senate, finally passed the
house on August 13, 1894, without change, after a long discussion
and deliberation by the committees of conference."
"(j) That on August 15, 1894, having received the signatures of
the presiding officers of both houses, the bill was sent to the
President of the United States."
"(k) That on August 28, 1894, the bill was sent by the President
to the Secretary of State, and the following endorsement was made
thereon:"
" Note by the Department of State: The foregoing act, having
been presented to the President of the United States
Page 159 U. S. 80
for his approval and not having been returned by him to the
house of Congress in which it originated within the time prescribed
by the Constitution of the United States, has become a law without
his approval."
" H.R. No. 4864: An act to reduce taxation, to provide revenue
for the government, and for other purposes."
" August 28, 1894."
It was stipulated in the circuit court that the persons
composing the firm of Burr & Hardwick, the importers, were
James M. Burr and Charles C. Hardwick; that the merchandise in
controversy consisted of "cotton laces;" that the merchandise, if
dutiable under the Act of October 1, 1890, was dutiable at sixty
percent
ad valorem, under the provision for cotton laces
contained in paragraph 373 of Schedule J of that act, and that if
the merchandise was dutiable under the Act of August 28, 1894, it
was dutiable at fifty percent
ad valorem under the
provision for cotton laces in paragraph 276 of Schedule J of the
latter act. The cause thereafter came on to be tried in the circuit
court, and the judge holding that court, after hearing the
argument, gave an opinion January 15, 1895, 66 F. 742, reversed the
decision of the board of general appraisers and entered judgment
January 16, 1895, holding that there was error in the decision of
the board of general appraisers and that the merchandise was
properly dutiable as cotton laces at fifty percent
ad
valorem under paragraph 276 of Schedule J of the Act of August
28, 1894, and that the entry be reliquidated accordingly. From this
judgment or decree, an appeal was taken to the Circuit Court of
Appeals for the Second Circuit, and thereupon that court, desiring
the instruction of this Court, made its certificate, embodying the
foregoing facts, and submitting the following questions:
"(1) Should the assessment for duty of the merchandise described
in the foregoing statement of facts, under paragraph 373 of the Act
of October 1, 1890, be sustained notwithstanding the provisions of
the Tariff Act of August 28, 1894?"
"(2) Should the said merchandise described in the foregoing
statement of facts be assessed for duty under paragraph
Page 159 U. S. 81
276, Schedule J, of the Tariff Act of August 28, 1894?"
"(3) Should the rates of duty prescribed by the first section of
the Tariff Act of August, 1894 (unless otherwise specially provided
for in said act), be levied, collected, and paid upon all articles
imported from foreign countries or withdrawn for consumption on and
after August 1, 1894, and prior to August 28, 1894?"
MR. CHIEF JUSTICE FULLER, after stating the facts in the
foregoing language, delivered the opinion of the Court.
The Act of October 1, 1890, 26 Stat. 567, c. 1244, was in force
until August 28, 1894, when it was repealed by section 72 of the
latter act, 28 Stat. 509, c. 349, which reads as follows:
"All acts and parts of acts inconsistent with the provisions of
this act are hereby repealed, but the repeal of existing laws or
modifications thereof embraced in this act shall not affect any act
done, or any right accruing or accrued, or any suit or proceeding
had or commenced in any civil cause before the said repeal or
modifications; but all rights and liabilities under said laws shall
continue and may be enforced in the same manner as if said repeal
or modifications had not been made. Any offenses committed and all
penalties or forfeitures or liabilities incurred prior to the
passage of this act under any statute embraced in or changed,
modified, or repealed by this act may be prosecuted or punished in
the same manner and with the same effect as if this act had not
been passed. All acts of limitation, whether applicable to civil
causes and proceedings or to the prosecution of offenses or for the
recovery of penalties or forfeitures embraced in or modified,
changed, or repealed by this act shall not be affected thereby, and
all suits, proceedings, or prosecutions, whether civil or criminal,
for causes arising or acts done or committed prior to the passage
of
Page 159 U. S. 82
this act may be commenced and prosecuted within the same time
and with the same effect as if this act had not been passed,
and provided further that nothing in this act shall be
construed to repeal the provisions of section three thousand and
fifty-eight of the Revised Statutes as amended by the Act approved
February twenty-third, eighteen hundred and eighty-seven, in
respect to the abandonment of merchandise to underwriters or the
salvors of property, and the ascertainment of duties thereon."
By section 54 of the Act of October 1, 1890, it was provided
"that any merchandise deposited in bond in any public or private
bonded warehouse may be withdrawn for consumption within three
years from the date of the original importation, on payment of the
duties and charges to which it may be subject by law at the time of
such withdrawal."
This merchandise was entered for consumption, and delivered,
after August 1 and before August 28, 1894, when the act in question
became a law. It was subject then to the rates of duty imposed by
the law in force at that time, namely, the Act of October 1, 1890,
and the duties were properly assessed by the collector under that
law, unless some provision to the contrary is to be found in the
Act of August 28, 1894.
The first section of the act of 1894 reads:
"That on and after the first day of August, eighteen hundred and
ninety-four, unless otherwise specially provided for in this act,
there shall be levied, collected, and paid upon articles imported
from foreign countries or withdrawn for consumption, and mentioned
in the schedules herein contained, the rates of duty which are, by
the schedules and paragraphs, respectively prescribed, namely: . .
."
The contention is that, the language of that section being free
from all obscurity and ambiguity, there is no room for
construction, and that the court is imperatively required to
conclude that it was the intention of Congress that the act should
have a retrospective operation as of August 1, 1894, although it
did not become a law until after that date. It is conceded that the
general rule is, as stated in
United States v.
Heth, 3 Cranch 398,
7 U. S. 413,
that
"words in a statute ought not to have a retrospective
application unless they are so clear,
Page 159 U. S. 83
strong, and imperative that no other meaning can be annexed to
them, or unless the intention of the legislature cannot be
otherwise satisfied,"
and that the usual course in tariff legislation has been,
inasmuch as some time is necessary to enable importers and business
men to act understandingly, to fix a future date at which the
statutes are to become operative. The question is not one of
construction, but of intention as to the operative effect of this
act because of the existence of the particular date in section
1.
In view of the general rule and the admitted policy in respect
of such laws, is there anything on the face of the act which raises
such a doubt in the matter as justifies the court in considering
whether the language used in that particular section must be
literally applied in the case before it?
And upon the threshold we are met with the fact that the Act of
October 1, 1890, was not repealed in terms until August 28, 1894,
and that the repealing section of the latter act kept in force
every right and liability of the government or of any person which
had been incurred or accrued prior to the passage thereof, and
thereby every such right or liability was excepted out of the
effect sought to be given to the first section.
The right of the government to duties under the tariff law which
existed between August 1 and August 28 was a right accruing prior
to the passage of the act of 1894 (that is, the date when the bill
became a law), and the obligation of the importers between August 1
and August 28 to pay the duties on their entries under the existing
tariff law was a liability under that law arising prior to the
passage of the act of 1894; and, if Congress intended that section
1 should relate back to August 1, still the intention is quite as
apparent that the Act of October, 1890, should remain in full force
and effect until the passage of the new act on August 28, and that
all acts done, rights accrued, and liabilities incurred under the
earlier act prior to the repeal should be saved from the effect
thereof as to all parties interested, the United States
included.
The duties under consideration were paid August 8, and the
merchandise delivered on August 11, but it was not until
Page 159 U. S. 84
August 28 that the fact was stamped on the entry that the goods
were liquidated as entered. There was no change in the
classification, and no additional duty was demanded or collected,
and the payment made at the time of entering the merchandise for
consumption was the payment of duties.
Barney v. Rickard,
157 U. S. 352. The
original assessment of duty was right, and the final liquidation
was the same, and there was no specific provision in the act of
1894 requiring a reliquidation at the rates under that act. How,
then, can it be held that the Act of October 1, 1890, was intended
to be repealed by retroaction?
Moreover, in arriving at the true intention of Congress, we
cannot treat section 1 as if it constituted the entire act, but
must deduce the intention from a view of the whole statute and from
the material parts of it.
By section 2, it was provided that certain enumerated articles
should be exempt from duty "on and after the first day of August,
eighteen hundred and ninety-four, unless otherwise provided for in
this act," and as to those which were dutiable under the Act of
October 1, 1890, the question arises whether Congress intended such
duties should be collected, and refunded after the Act of August
28, 1894, went into effect?
By section 23, a license was provided for, and that,
"from and after the first day of August, eighteen hundred and
ninety-four, no person shall transact business as a customhouse
broker without a license granted in accordance with this
provision."
Since there was no law prior to this which authorized the
collector to require a license from a customhous broker, it was
manifestly anticipated, in using the words "the first day of
August" that the bill would become a law before that day.
By section 38, it was provided that on and after the first day
of August, 1894, there "shall be levied, collected, and paid by
adhesive stamps, a tax of two cents for and upon every pack of
playing cards;" and section 43 and 45 impose a penalty of fifty
dollars for every violation of the law incurred by making or
selling such cards without affixing the stamps prescribed. Every
dealer, if the act were treated as operating retrospectively,
Page 159 U. S. 85
would not only be liable for a tax of two cents a pack on every
pack of playing cards manufactured or sold or removed from the
place of manufacture, and upon every pack of playing cards in stock
on and after August 1st, but to an
ex post facto penalty
of fifty dollars for every pack of playing cards that he had sold
or removed between August 1 and August 28. Of course, these
sections cannot be given a retroactive effect according to the
terms employed. Again, a higher rate of duty was imposed on many
articles by the act of 1894 than under the prior act, and a lower
rate of duty on others, while some that were free were made
dutiable -- as, for instance, the article of sugar. Must duties
paid between August 1 and August 28 be refunded where the rate was
lowered, and assessed where the rate was raised, or a duty imposed
where none existed? Clearly not.
These considerations lead to the conclusion that the act ought
not to be construed to operate retrospectively, contrary to the
general rule and so as to turn what was intended to secure a period
of time to enable business men to act understandingly under the new
law into a source of confusion and mischief to the contrary.
In these circumstances, we are entitled to avail ourselves of
such light as the history of the steps taken in the enactment of
the law, as disclosed by the legislative records, may afford. By
section 895 of the Revised Statutes, it is provided that
"extracts from the Journals of the Senate, or of the House of
Representatives, and of the Executive Journal of the Senate when
the injunction of secrecy is removed, certified by the Secretary of
the Senate or by the Clerk of the House of Representatives, shall
be admitted as evidence in the courts of the United States, and
shall have the same force and effect as the originals would have if
produced and authenticated in court."
The certificate shows that the bill passed the House of
Representatives February 1, 1894, and that its first section
provided that the rates of duty prescribed should be levied "on and
after the first day of June," while the second section provided
that on and after that day, certain articles named, when imported,
should be exempt from duty.
Page 159 U. S. 86
The bill was reported to the Senate by the finance committee (to
which it had been referred) on March 20, 1894, and "the thirtieth
day of June" was substituted in sections 1 and 2 for the "first day
of June." The bill, as amended in the Senate, passed that body July
3, 1894, and sections 1 and 2 were amended by substituting the
"first day of August" for the "thirtieth day of June." The
conference committee of the house agreed to the bill as passed by
the Senate without any further amendment on August 13, and it was
sent to the President on August 15. It thus appears that at every
stage of its progress, the intention of Congress was that the
tariff provisions of the bill should operate prospectively, and
that as, by the concurrence of the house in the Senate amendments,
the bill did not go back to the Senate, the first day of August
remained in the bill, as originally fixed in the Senate, July 3,
1894.
Both houses intended that the duties imposed by section 1 and
the additions made to the free list in section 2 should not take
effect except at a point of time after the passage of the act, and
the Senate endeavored to effectuate that intention by its action on
the 3d of July, but, because of the differences between the two
bodies, the passage of the act was delayed, which delay was
terminated by the House's finally accepting the changes made by the
Senate, so that no new date in the future was specifically assigned
for section 1 to go into effect, although the intention that the
act should not operate retroactively was palpable throughout.
And as the Act of October 1, 1890, was not repealed by the Act
of August, 1894, until the latter act became a law, when
inconsistent laws were declared thereby repealed, we think it
cannot be doubted that Congress intended the rates of duty
prescribed by the act of 1894 to be levied on the first day of
August, if the bill should then be a law, and if not, then as soon
after that date as it should become a law. On the first day of
August, the duties prescribed by the first section of the act of
1894 could not be lawfully levied, and, so far as the importations
in this case are concerned and others similarly situated, the law
required the exaction of the duties prescribed
Page 159 U. S. 87
by the act of 1890. As to such importations, the first section
of the act of 1894 could not be literally carried out unless by
holding it to operate as a retroactive repeal, notwithstanding the
saving clause, and this we consider altogether inadmissible. The
language of section 1 was that on and after the first of August,
there "shall" be levied, and of the second section, that on and
after the first day of August, certain enumerated articles, when
imported, "shall" be exempt from duty. In our judgment, the word
"shall" spoke for the future, and was not intended to apply to
transactions completed when the act became a law.
We regard the third question as too general and unnecessary to
be answered, but
Answer the first question in the affirmative, and the second
in the negative, and it will be so certified.
