1. The duty imposed on embroidered linen goods by the
twenty-second section of the Act of March 2, 1861, 12 Stat. 192, is
not reconsidered in the seventh section of the Act of June 30,
1864, 13
id. 209, but remains as fixed by the former
act.
2. A statute does not, by implication, repeal a prior one,
unless there is such a positive repugnancy between them that they
cannot stand together.
In 1873, Homer & Co. imported into the port of New York
certain goods, of which linen was the basis, upon which the
collector imposed and collected duties at the rate of forty
percent, under the seventh section of the Act of June 30, 1864, 13
Stat. 209. The importers insisted that they were dutiable at
thirty-five percent only, under the twenty-second section of the
Act of March 2, 1861, 12
id. 192, and brought this action
to recover the alleged excess of duties.
The plaintiffs introduced testimony tending to show that the
goods were dress patterns, or patterns for dresses, designed for
ladies' wear, each piece, or the contents of each carton,
comprising the material for a garment, either as an overskirt
(polonaise) or dress (
robe a jour), although not made up.
The size of these patterns or articles varied from about eight to
twelve yards. About the edge or above it and arranged so as to form
an appropriate ornamentation to the article when made up for wear
there was worked sometimes in cotton thread and sometimes in linen
thread, more or less embroidery. The amount of this embroidery and
its elaboration was a substantial and influential element in the
cost or value of the article.
The component material of chief value in the articles in
Page 96 U. S. 138
question was flax or linen, as embroidered; and in the condition
in which they were imported -- packed in cartons and boxes -- the
value of the goods exceeded thirty cents per square yard.
The testimony further showed that the general descriptive and
commercial names of the articles in question were polonaise and
robe, more particularly described as linen embroidered robes and
linen embroidered polonaise, &c.
The court below directed the jury to find a verdict for the
plaintiffs, and from the judgment entered upon such verdict this
writ of error is brought.
MR. JUSTICE HUNT delivered the opinion of the Court.
Sect. 14 of the Act of March 2, 1861, 12 Stat. 185, 186, imposes
duties in the following words,
viz.:
"On all brown or bleached linens, ducks, canvas, paddings,
cotbottoms, burlaps, drills, coatings, brown hollands, blay linens,
damasks, diapers, crash, huckabacks, handkerchiefs, lawns, or other
manufactures of flax, jute, or hemp, or of which flax, jute, or
hemp shall be the component material of chief value, being of the
value of thirty cents and under per square yard, twenty-five
percent
ad valorem, valued above thirty cents per square
yard, thirty percent
ad valorem; on flax or linen threads,
twine, and pack-thread, and all other manufactures of flax or of
which flax shall be the component material of chief value, and not
otherwise provided for, thirty percent ad valorem."
The twenty-second section, 12 Stat. 192, imposes a duty of
thirty percent on
"manufactures of cotton, linen, silk, wool, or worsted, if
embroidered or tamboured in the loom, or otherwise, by machinery or
with the needle, or other process not otherwise provided for."
The tenth and thirteenth sections of the Act of July 14, 1862,
12 Stat. 554-557, impose five percent additional duty on each of
the above enumerations
totidem verbis.
The seventh section of the Act of June 30, 1864, 13 Stat. 209,
imposes duties as follows:
"On brown and bleached linens, ducks, canvas, paddings, cotton
bottoms, burlaps, diapers, crash, huckabacks, handkerchiefs,
lawns,
Page 96 U. S. 139
or other manufactures of flax, jute, or hemp, or of which flax,
jute, or hemp shall be the component material of chief value, not
otherwise provided for, valued at thirty cents or less per square
yard, thirty-five percent
ad valorem; valued at above
thirty cents per square yard, forty percent
ad valorem.
On flax or linen yarns for carpets, not exceeding number eight
Lea, and valued at twenty-four cents or less per pound, thirty
percent ad valorem. On flax or linen yarns valued at above
twenty-four cents per pound, thirty-five percent ad valorem.
On flax or linen thread, twine, and packthread, and all other
manufactures of flax, or of which flax shall be the component
material of chief value, not otherwise provided for, forty percent
ad valorem."
The twenty-second section was as follows,
id., 216:
"
And provided further that the duties upon all goods,
wares, and merchandise imported from foreign countries, not
provided for in this act, shall be and remain as they were
according to existing laws prior to the 29th of April, 1864."
It will be seen by this juxtaposition, that sec. 14 of the Act
of 1861, and sec. 7 of the Act of 1864, are, in their first and
general paragraphs, nearly identical. Except as to that portion of
the Act of 1864, describing linen yarns, which is placed above in
italics, and the rate of the duty provided, they are nearly the
same, word for word. In the paragraphs following they differ. The
Act of 1861 contains the provision that
"manufactures of cotton, linen, silk, wool, or worsted, if
embroidered or tamboured, in the loom or otherwise, by machinery or
with the needle, or other process not otherwise provided for,"
shall be subject to a duty of thirty percent.
The Act of 1864 omits this provision, but contains the following
clause:
"
Provided further that the duties upon all goods,
wares, and merchandise imported from foreign countries, not
provided for in this act, shall be and remain as they were
according to existing laws prior to the 29th of April, 1864."
It seems impossible to resist the conclusion that Congress
intended by the Act of 1864 to revise the duties on brown and
bleached linens generally, increasing them from twenty-five and
thirty percent, as they were by the Act of 1861, to thirty-five
Page 96 U. S. 140
and forty percent, but on embroidered or tamboured manufactures
of linen the duties were intended to remain as they were prior to
the 29th of April, 1864.
To induce a repeal of a statute by the implication of
inconsistency with a later statute, there must be such a positive
repugnancy between the two statutes that they cannot stand
together.
McCool v.
Smith, 1 Black 459;
Wood v.
United States, 16 Pet. 342;
United
States v. Tynen, 11 Wall. 88.
In the present case, the statutes are in perfect harmony and
there is no room for the theory of repeal by implication.
The test of the rate of duty we are considering is that of
embroidery or not. The rate of duty upon plain linen goods is
reconsidered in the Act of 1864, and is fixed at thirty-five
percent where the goods are valued at thirty cents or less per
square yard and at forty percent where they are valued above that
sum. This is a higher rate of duty than that imposed by the Act of
1861, and if there were no repealing clauses, then it would
necessarily operate as a repeal of the old duty by its repugnancy.
The rate of duty on embroidered goods is not reconsidered in the
Act of 1864. This class of goods is not there mentioned, but falls
under the description of goods "not provided for in this act,"
which, it is declared, shall remain as they were on the 29th of
April, 1864. They remain, therefore, subject to the duty imposed by
the Act of March, 1861.
That this is a correct interpretation of these statutes is shown
by the later provision of the Revised Statutes of 1874, wherein the
duties are set forth in precise accordance with the construction we
have here given.
1st, at pp. 465, 466, a duty is imposed on brown and bleached
linens, ducks, canvas, &c., of thirty-five percent where the
value does not exceed thirty cents per square yard, and of forty
percent where the value is greater.
2d, flax or linen yarns for carpets are dutiable at thirty-five
or forty percent, according to their value. These duties are as
provided in the Act of 1864, and the marginal reference is to that
act.
3d, at p. 479 is the provision,
"Embroidery, manufactures of cotton, linen, or silk, if
embroidered or tamboured, in the
Page 96 U. S. 141
loom or otherwise, by machinery or with the needle, or other
process not otherwise provided for, thirty-five percent
ad
valorem. Articles embroidered with gold or silver or other
metals, thirty-five percent
ad valorem."
The rulings at the trial were all upon this theory of the laws
imposing duties, and were correct.
Judgment affirmed.
