While the primary purpose of a proviso is to qualify only the
provision of the statute to which it is appended, a presumption of
such purpose will not prevail against a demonstrative test that the
legislative intent was that the proviso was of general application.
The Attorney General having construed the proviso of § 50 of the
Tariff Act of 1890 as not restricted to the matter immediately
preceding it, but as of general application, and this construction
having been followed by the executive officers charged with the
administration of the law, Congress will be held to have adopted
that construction in the enactment of § 33 of the Tariff Act of
1897 and to have made no other change except to require as the
basis of duty the weight of merchandise at the time of entry
instead of its weight at the time of its withdrawal from warehouse.
The proviso in § 20 of the Customs Administrative Act only refers
to cases in which a change in the rate of duty has been made while
the merchandise is in bonded warehouse, and not to difference in
weight.
145 F. 484 reversed.
The facts are stated in the opinion.
Page 204 U. S. 145
MR. JUSTICE McKENNA delivered the opinion of the Court.
This case involves the question whether, upon withdrawal of
imports from a bonded warehouse, duties should be collected
according to their weight then or upon their greater weight when
entered and imported into the country, the loss having been
occasioned by evaporation of moisture.
The merchandise in question was leaf tobacco imported into the
port of New York, a part before and a part after July 24, 1897. It
was entered under bond for warehousing without the payment of duty,
and withdrawn from warehouse after the present tariff act went into
effect, and was assessed by the collector for duty on the basis of
weight at the time of its entry. The importers, Falk & Brother,
protested and appealed from the decision of the collector to the
Board of General Appraisers. The board affirmed the ruling of the
collector on its opinion in In re Schmidt, G.A. 4214, T.D 19715.
Falk & Brother then instituted proceedings for review before
the Circuit Court for the Southern District of New York, and that
court sustained the decision of the Board of Appraisers. 145 F.
574. The circuit court of appeals reversed the circuit court. 146
F. 484.
The contention of the importers is that the merchandise is
subject to duty under the provisions of Schedule F of the Act of
July 24, 1897, based upon weight at the time of
withdrawal
from bond for consumption, under the provisions of section 50 of
the Act of October 1, 1890. It is contended that the proviso of the
latter act has not been repealed but is in full force and effect,
and is applicable to merchandise entered in bond subsequent to the
passage of the Act of July 24, 1897. The Board of Appraisers held
that the proviso of section 50 of the act of 1890 was repealed by
section 33 of the act of 1897.
Those sections are, respectively, as follows:
Page 204 U. S. 146
"SEC. 50. 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, and all goods, wares, and merchandise
previously entered without payment of duty and under bond for
warehousing, transportation, or any other purpose for which no
permit of delivery to the importer or his agent has been issued
shall be subjected to no other duty upon the entry or the
withdrawal thereof than if the same were imported, respectively,
after that day:
Provided, that any imported merchandise
deposited in bond in any public or private bonded warehouse, having
been so deposited prior to the first day of October, eighteen
hundred and ninety, may be withdrawn for consumption at any time
prior to February first, eighteen hundred and ninety-one, upon the
payment of duties at the rates in force prior to the passage of
this act:
Provided, further, That, when duties are based
upon the weight of merchandise deposited in any public or private
bonded warehouse, said duties shall be levied and collected upon
the weight of such merchandise at the time of its
withdrawal."
26 Stat. 624, c. 1244.
"SEC. 33. 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, and all goods, wares, and merchandise
previously entered without payment of duty, and under bond for
warehousing, transportation, or any other purpose, for which no
permit of delivery to the importer or his agent has been issued,
shall be subjected to the duties imposed by this act, and to no
other duty, upon the entry or the withdrawal thereof:
Provided, That, when duties are based upon the weight of
merchandise deposited in any public or private bonded warehouse,
said duties shall be levied and collected upon the weight of such
merchandise at the time of its
entry."
30 Stat. 213, c. 11.
The circuit court held that those sections were not repugnant.
The court said:
"Neither is general in its application, but is restricted to
merchandise previously imported for which
Page 204 U. S. 147
no entry has been made."
The court, however, sustained the decision of the board on the
ground that section 2983 of the Revised Statutes was applicable.
That section is as follows:
"In no case shall there be any abatement of the duties or
allowance for any injury, damage, deterioration, loss, or leakage
sustained by any merchandise while deposited in any public or
private bonded warehouse."
The importers denied the application of that section, and
contended that, under the law, and particularly under section 20 of
the Customs Administrative Act of June 10, as amended December 15,
1902 (presently to be stated), they were authorized to withdraw the
merchandise from warehouse upon the payment of duties and charges
based upon its weight at the time of withdrawal. The court ruled
against the contention, and said:
"It seems too plain for discussion that the word 'loss'
[referring to section 2983], coupled as it is in the disjunctive
with 'leakage,' applies precisely to such a case as the one before
us. I cannot find any sound reason for believing that the Congress
did not have section 2983 in mind when it enacted said section 20,
as amended. It is obvious that section 20, especially as amended,
refers exclusively to rate, rather than weight."
The circuit court of appeals differed from the circuit court in
the application of section 2983. It held that the loss there
provided for related solely to the loss of merchandise subject to
duty, and such loss had not occurred. The court further held that
the other terms of the section referred to actual reduction in the
value or quantity of the merchandise itself. "It is clear," it was
said, "that evaporation of moisture is not
loss' . . .
sustained by . . . merchandise." The case of Seeberger v.
Wright & Lawther Co., 157 U. S. 183, was
referred to as analogous. The court also disagreed with the
construction of the circuit court of section 20 of the Customs
Administrative Act, and held that, by virtue of the proviso added
to that section December 15, 1902 (stated later), duties should
have been assessed according to the weight of the tobacco at the
time of its withdrawal.
Page 204 U. S. 148
This history of the case exhibits the contentions of the parties
and the elements of the contentions, and, it will be seen, the case
is one of statutory construction.
First, as to
Seeberger v. Wright & Lawther Co.,
157 U. S. 183,
which is urged as controlling. The importation there was flaxseed.
The proof showed that the seed contained dust composed of clay,
sand, and gravel to an average of four percent. The case turned
upon the meaning of the word "draught" in section 2898 of the
Revised Statutes. It was assumed that the word did not apply to
impurities, and it was said that the lower court was correct in
assuming that the flaxseed in question which was made dutiable,
under the act of 1883 at twenty cents per bushel of fifty-six
pounds, less tare, meant fifty-six pounds of clean seed, or at
least seed free from any impurities such as the day, sand, and
gravel in question.
The moisture which the tobacco in the case at bar absorbed
cannot be said to be an impurity within the meaning of that
decision, even though moisture in tobacco is a variable quantity
and its amount can be estimated by weighing the tobacco at
different times. Nor can it be considered as an independent,
nontaxable substance, even though, as conceded in this case, it was
absorbed on the ocean voyage. The statutes contemplate and apply to
merchandise which may change in weight, and if the moisture in the
tobacco in this case can be regarded as an independent substance --
so much "sea water," to use counsel's graphic phrase -- a question
of the application of sections 50 or 33 could not arise. One or
other of those sections was considered applicable from the
beginning, and the importations regarded as controlled by it, as
merchandise subject to duty by weight, and necessarily there was
involved the question at what time the weight should be estimated
-- at the time of entry or at the time of withdrawal from
warehouse. To that question, then, we shall address ourselves.
It is said by counsel for the United States that, prior to
October 1, 1890, duties were uniformly demanded and collected
according to the weight of merchandise at original entry,
citing
Page 204 U. S. 149
in support of the assertion the custom regulations of 1884 and
1899. Upon that date (October 1, 1890), the Tariff Act of 1890 took
effect. Section 50 provided, as we have seen, that goods previously
imported for which no entry had been made and goods warehoused for
which no permit of delivery had been issued should be subject to no
other duty than if the goods were imported after the day the act
took effect. It was also provided that, when duties were based upon
the weight of warehoused merchandise, the duty should "be levied
and collected upon the weight of such merchandise at the time of
its
withdrawal" (italics ours). A question arose as to the
scope of the proviso -- whether it was restricted to the matter
immediately preceding -- that is, merchandise imported before the
act took effect -- or was of general application, applying as well
to merchandise imported after as before the act took effect. The
Attorney General decided that the latter was its effect. He said,
20 Ops. 81, 82:
"I am aware that, under former tariff acts the rule has been to
levy duties upon weighable merchandise according to the weight at
the date of importation, but this proviso seems to be intended to
change that rule, and there seems to be sufficient reason for such
change."
The executive officers of the government followed this
construction until the Act of July 24, 1897, known as the Dingley
Act, was passed. The construction made by the Attorney General is
disputed as applicable to section 33 of the act of 1897, and it is
urged that the whole scope and meaning of that section, when
reduced to its simplest terms, make goods theretofore entered under
bond for warehouse subject to the duties imposed by the act upon
the withdrawal thereof, when the section is construed in accordance
with the rule that a proviso refers only to the provision of a
statute to which it is appended. This may be conceded to be the
primary purpose of a proviso, but a presumption of such purpose
cannot prevail to determine the intention of the legislature
against other tests of meaning more demonstrative. We said in
United States v. Whitridge, 197 U.
S. 135, at
197 U. S.
143:
"While no doubt the grammatical and
Page 204 U. S. 150
logical scope of a proviso is confined to the subject matter of
the principal clause, we cannot forget that in practice no such
limit is observed."
And the Attorney General's opinion cannot be overlooked. The
proviso which he construed in section 50 of the act of 1890 was
reenacted in section 33 of the act of 1897. It would be extreme to
hold that Congress by doing so intended to set up the technical
rule relating to provisos against the construction of the Attorney
General, and to change that construction by repeating the very
words construed. And there could have been no oversight. The
practice of the executive officers for years gave emphasis and
materiality to the construction. A change was made, however -- a
change of one word -- a change recommended by the Treasury
Department to increase the revenues and give greater convenience to
the administration of the customs laws. The word "entry" was
substituted for the word "withdrawal," and necessarily thereafter
duties upon merchandise there provided for were to be based upon
weight at the time of
entry. Nor do we see that there is
any contradiction of this in other provisions of the statute.
Certain provisions of the Customs Administrative Act are, however,
relied upon. The provisions of that act, hereafter quoted,
originated in section 1 of the Act of March 14, 1866, 14 Stat. 8,
c. 17, and were carried into the Revised Statutes as section 2970,
which provided that merchandise deposited in warehouse might be
withdrawn for consumption within one year from the date of
importation, upon payment of the duties and charges to which it
might be subject by law at the time of withdrawal. At the
expiration of one year, and until the expiration of three years, it
might be withdrawn for consumption on payment of the duties
assessed on the original entry and charges, and an additional duty
of ten percentum on the amount of such duties. It was decided in
Merritt v. Cameron, 137 U. S. 542,
137 U. S.
550-551, that that section
"was intended to provide for cases in which a change of rate of
duty had been made by statute while the merchandise was in bonded
warehouse. "
Page 204 U. S. 151
Then came section 20 of the customs administrative Act of June
10, 1890 (26 Stat. 140, c. 407), as amended by Act of October 1,
1890 (26 Stat. 624, c. 1244), providing that warehouse merchandise
might be withdrawn for consumption within three years from the date
of the original importation, on payment of the duties and charges
to which it might be subject by law at the time of such withdrawal.
The section was amended in 1902 (32 Stat. 753, c. 1) by the
addition of the following proviso:
"Provided, That the same rate of duty shall be collected thereon
as may be imposed by law upon like articles of merchandise imported
at the time of the withdrawal."
The circuit court of appeals gave controlling force to the
proviso as fixing the meaning of the section. The court said that
it had held in
Mosle v. Bidwell, 130 F. 334,
"that the amendment of 1902 was declaratory of the meaning of
the section prior to said amendment, and that its meaning as thus
declared was that no greater or different duties could be imposed
than those to which other like goods imported at the time of
withdrawal would be subject."
Regarding this decision as conclusive the court said:
"If other like goods had been imported at the time when these
goods [the tobacco in question] were withdrawn, duty would have
been assessed thereon according to their weight at such time."
But the question in
Mosle v. Bidwell was not the same
as in the case at bar. The question now is not what rate of duty
merchandise is subject to, or whether it is exempt from duty, but
at what date its weight is to be taken as a basis of duty. And
weight is a fact independent of the rate of duty. The proviso of
section 20 of the Customs Administrative Act therefore cannot be
made paramount to the proviso in section 33 of the Tariff Act of
1897. Nor was that the purpose of its enactment. It was enacted to
nullify the effect of the decision of the circuit court in
Mosle v. Bidwell, by which section 20 was construed to
require the payment of duties which had accrued at the time of
importation, notwithstanding a change of rate or that the goods had
become exempt from duty before
Page 204 U. S. 152
their withdrawal from warehouse. This construction was contrary
to the general understanding of the section and the practice of the
Department. This, then, is our view: the Attorney General having
construed the proviso of section 50 of the act of 1890 as not
restricted to the matter which immediately preceded it, but as of
general application, and this construction having been followed by
the executive officers charged with the administration of the law,
Congress adopted the construction by the enactment of section 33 of
the act of 1897 and intended to make no other change than to
require, as the basis of duty, the weight of the merchandise at the
time of entry, instead of its weight at the time of its withdrawal
from warehouse.
Judgment of the circuit court of appeals is therefore
reversed and that of the Circuit Court is affirmed, and the case
remanded to the latter court.
MR. JUSTICE MOODY took no part in the decision of this case.