575

U

orqer or was a direction. for the partition of an through a suit brought there; and that the decree should have been attacked by s.ppeal, or in some direct action,. and cannot be. assailed, ppllaterally. We no error in tbe record ',o.f t4e ciJ:cu'it, be affirmed, at the coat of.,tAe plaintid"in error.

ALLENtI. UNtTED STATJ!S.

'(DIstrict OOtlirt,N. D. OaHfornia. 'September 29,1892.)

ctr8TOlIS

UsBl> BY AMBRIOAN VSssllLs. of ScheduleN of the tari¢ act .of :"lowing (as 8m6tldedby the act 01 .Tune 19,1886, 24 St. Large. p. 81) a drawback ot 75 cents per ton on imported'cOM' afterwards ullM'by steam veSsels of the United States toreig,n, cioDlJl1.erce or the COa$ting traqe, was not repealed' by: the proVlslon Schedule'N',of the act of.. October 1, 1890, which merely imposeS ,8 duty of 75 cents pe.r totI'OIi 1m.p.orted 00&;' but the draWback, leS8 1 per cent-thereof, is continued' . i in by,t4,l' to section 25 ot .aid act, relating to l'&11owed under exist.lnglaw."

At SUit by Charles R. Allen against the United States to recover a drawback on certil.iIl imported coal. On demurrer to the complaint.Overmled. ' " Page k for plaintiff. . States District Attorney, for

Law.

JJas,

Ross, District Judge. but .aaingle question' presented demurrer to the complaint this case, and that is, does the act of congress of October 1, 1890, (26 8t. p. 600,) commonly known as the" MeJ{inley IUll,".repeal the provision of the act of March,3, 1883, (22 St. p. 511,) 8s i amended by the act of June 19, 1886, (24 St. p. 81,) grant-ing a drawback in certain Cases upon bituminous coal imported into the United State$? That portion of)he act of March 3, i883, fixing a duty on coal'is fdund in ScheduleN of the act, reads as follows:
"Coal, shale, seventy-five cents per ton of twenty-eight bushel". eigllty pounds to tbe bushel. A drawbaQk of seventy-five cents per tQn sAall be allo;wed on all bituminous coal imported into the United States whlC,b .llSed for fuel on board of vessels propelled by steam which are engaged in the coasting trade of tbe United States, or in tbe trade with foreign countries. to allowed and . paid under sucb regulations as tbe aecretary of the treasury shall prescribe."

By section 10 of the act of June 19, 1886, it was declared"That ,tbe'provisions of N of · An act to reduce internalrevenue taxation. and forotherpurposes.' approved March 3. IS83. allowing a drawback, on bituminous co(l1 used for fuaIoD vessels propelled blsteam. shall be CODstruedto apply onl.r to vessels of the United States."

FEBERAL REPORTER', vol. 52.

"An iac*'w l'educe

portion

for <>thet purposes,l!' reads: . . , bftumino,us an,dishale,. cents ton bUsbels, eighty poUnds te ·tbe, bushel. {Joill slack or'cuhn,sucb as wlil pass through a half-i nch screen, thirty cents per ton' ot eighty pounds to the bushel."

'of the act of' October: 1,' 1890, snd duties on

If there was nothing more in the act of October 1, 1890, upon the subject in question, there would be no difficulty in reaching the conclusion announced by the attorney general in an opinion given by him in answer to a similar que!ltioQpropounded to him by the secretary of the treasury, (19 Op. Attys. Gen. U. S. 687;) for, as he there says, and as Fed. Rep. was said, in substance,J?y Judge LACOMBE in 4522, the act of October 1, 1890, was manifestly intended as a complete revision of the tllriff laws, and therefore the law upon .the subject in hlind is to beasgerliained by reference to the terms and . provisions of that'Mi. ,.Al;ld thl:l ohii§siQn from, that portion of Scbfldule N of the act' of imp<>sing,a duty of 75 cents atoD on bituminous COlloI, in to such co8J.contained in the aot.ofgMarch 8r'l:883,:a.sarrtended byse<Jtion June 19, 1886, would, in the absence of any other or further prOVision upon the subject, manifest theintentiM 0(co l1 gres8 8uGh drawback; But the a.ct 1, declares in imported materfals on' duties have paId ,are used. in the manufacture of articles manufactured or produce(].jn Unit!ld States, there shall be allowed, t;he of such. a,rLjcles', a drawback equal in amount to the dutiespald'on tbe'mat'erlals used, less I per centum of such duties: provided that, when the articles exported are made in part from .dortestic theiwp()rted J the parts ,of the articles made from such matl:)tials" .so, appear In trie, that.thequantity or measurelllent,then!of may be ascertained: and that the drawbadk on 'any article allowed under existlnglaw'shall be continued at the rate herein provided'l'that the: imported materials used in the manufacture <>1' pl'oduqtio,n Qf articlllll eutitledto drawback of 'customs duties when ported, shall., in all, cases ",\,lere drawback:pf du,tiespaidoQ such,materials is claimed, be 14entijieu, of su«;h.materials used, and thea,mount of duties paid thereon shall ascertained, t1,!e facts lDanufactureor pro.duction of snch articles in the United States, and their exportation therefrom, shall bedeterl1)iJlled, and the-drawback due thereon shall be paid to the man·ufactllrer, producer, on exporter, to the agent ofeitherj or to the person to whom sucb manufacturer, producer, exporter, or agent, shall in writing order·sucb drawback paid, under such regulations as the secretary of the , treasury ,shall prescribe." "
It istlp6n the true construction of this section that the decision in the present pase, ill opinion, hinges. , It is urged on the part of the government. that section 25 deals exclusivelywith drawbacks upon exports, and that the word "article" in the secoiidpl'oviso "ineans and refel's to an exported artiple, and to no {)ther." 'Arillnalysis of the not'sustllin, the contention. The section provides in distinct terms for a: drawbrack-First, on all ar-

ALLEN". UNITED STATES.

577

ticles 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 plaintifFs 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 rl\turned shall be that of the duty paid, less 1 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 proviso of section 25 of the act of October 1, 1890, continued, but at the rate provided in that section, to wit, the amount ofduty paid, less 1 per centum. This, it seems to me, is the natural.andordinary 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 w9rd "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 !;lold 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 it terms. or in the subject it deals with, indicating an intention to 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 the 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., 113 U. S. 313, 5 Sup. Ct. Rep. 491The laws existing at the time of the passage of the act of October 1, 1890, allowing drawbacks, were not uniform. In some cases the drawv.52F.no.6-37

578

REl'OWi'ER,

vol. 52.

back paid,lessl0 per cent.; in the deduction was 1. per cent.; by: tbe act of March 3, 1883, the fwon coalwas allowed ,as ,a drawback. &lv. St. §§ 8026; 18 St. p.MO; 23 St. p. 57. By the .second proviso of see;f;iqn.,25 of the act of. pctober 1, 1890.< the ,amount of drawback &llo,wed i,.!lplaced on,aU articles ,at a uniforIprl1te,'with certain ex<reptionsspecially for elsewhere in"the act, as,. for example, in paragraph 322, St.p. 588,).itj. relation to salt. The provision of the act of March 3,1883, in regard. to that article, was as follows: "Salt in sacks" !:larrels, and other packages, twelve cents per one hundredpoundi3: in per onehundre.d pounds: ·provided, exporters of meats, whetber l1l:l,cked or smoked, whIch have been cured In the United States with impbrted salt, shall,uponsatisfactory proof, under such ll'eglllations as the:sooretiiryot the;'treli8ury shall 'that such meats have been cured with importedsalti have:refunded totbem from the treasury the duties paid ot) the.E1alt so ,used in curiQg such expcrted meats in amounts not less than provided, fu,r,tber, that imported salt in bond Ill,aybe usedio, cl!rlng fish taken by vesselsJigensed to engage in the fisheries. and ihcufing'ftsh'On the shores of the navigable waters ofthe United States, under such ri:;gU1ations as the secretary of, the treasury shall prescribe; and, upon: proof toat tbelsalt'has been'used: foreithel' of the purposes stated in tbis proviso, the duties on the s.ame shall be remitted." 22 St. p. 514. By the act of Oct6bE!1' 1, 1890, 'the order of the enactment is SOll'lewhat changed, but it the same, and is as follows: Salt in bags, sacks, or other pac1l:ages, twelve cents per one hundred pounds; in bulk, eight cents perone hundred pound's: provided, that imported salt in bond may be used inclldng fish taken ,by'vessels licensed to engage 10 theflsberies,81ll1iocuring fish on the shores of the navigable waters of the UI\ited States, under, allch regulations ,a.s the of. the treasury shall prescribe; and, upop proof the salt has ,for either of the purposes stated ,in proviso, the duties on the same shall be remitted: provided,fnrther,- tl,lat exporters of meats, whether packed' or smoked, which have been cured 111 the United 8tatelnvith' impor.tetl:sldt, shall, upon satisfactory proof, under such regulations. as the secretary,of the treasury shall prellCribe. that 1Dej&ts have: been, cured with imported salt, have refunded t() tbemJromthe treasu)'ythe duties paid on the salt so used in curing such meats, in alllounts not less, .than one hundred dollars.'; .26. St. p; 588. '" . . . " '!'liia is cited on of the as ilJ.ustrative of the method and pUrsUEld.1:>Y act of Oct,ober 1, 1890, when providing for of existing drawback rights in respect to imarticles into home. consumption, an,d not exThe tpis is that, the case of the use of imported a bondedware1}()useln Quring fish not exported, as permitted by the tirst provisiOlf9f t,he l,tbove-Qited paragraph of the act of 1890, tlr,ere is a of not the allowance. of a ,drawback; which latter necessarily implies of duty; and in the case of drawback the',secpnd provision of the paragraph on imported salt used in curing meats afterwards exported, the provision is that there sQall .be frOlIl }he treasury the duties paid on the salt so used incud l1g auch exported meats, in amounts not less than

MARINE v. PACKHAM.

579

$100. It is manifest that these provisions could not be brought within the general language employed in the second proviso of sectiqIl 25 of the act declaring that drawbacks allowed "undei: e:x.isttng law on any article shall be continued at the. rate herein providedj" that is to. say, the amount returned shall be that oithe duty paid, lessl per centumjand therefore a special provision in relationw salt became a necessity. Demurrer overruled, with leave to the defendant to answer within the usual time. .

MARINE, Collector,

fl"'ircuit Court

11.

PACKHAM et al.

Of Appeals, Fowrth. CircuU. October 11,1892.)
No. 14.

CUSTOMS DUTIES-CLASSIFICATION-CONSTRUCTION Oll' LAWS-GLASS BOTTLES.

Empty bottles and demijohns are not dutiable at 1 cent and 17' per pounel, according to size, under paragraph 103 of. the tariff act .of October 1. 1890, when such duties would amount to less than 40 Per cent. ad val.o"'''m, but at 40 per cent. ad valorem, under the proviso of paragraph 104. SIMON'l'ON, District JUdge, dissenting.

Appeal from the Circuit Court of the United States for the District of Maryland. This was an appeal by William M. Marine, collector of the port of Baltimore, from the decision of the board of general appraisers, reversing the action of the collector in levying certain duties on empty bottles and demijohns. The decision of the appraisers was affirmed by the circuit court, and the collector appealed. Reversed. Wm. A. Maury, Asst. Atty. Gen., for appellant. Wm. S. Tlwmas, (John L. Tlwmas, on the brief,) for appellees. Before GOFF, Circuit Judge, and HUGHES and SIMONTON, District Judges. GOFF, Circuit Judge. Packham, De Witt & Co.. on December 6, 1890, imported into the port of Baltimore, from Hamburg, a lot of empty bottles and demijohns, upon which duty was assessed by the collector at the rate of 40 per centum ad valorem. Paragraphs 103 and. 104 of the" Act to reduce the revenue and equalize duties on imports, and for other purposes," approved October 1, 1890, under which the collector acted, read as follows: bot"(103) Green and colored, mOlded or pressed, and flint and lime tles, holding more than one pint, and demijohns and carboys, (covered or uncovered,) and other molded or pressed, green or colored, and flint or lime bottle glassware, not especially prOVided for in this act, one cent. per pound. Green and colored, molded or pressed, and flint and lime glass bottles, and 'Vials holding not more than one pint, and not less than one quarter of a pint, one and one half cents per pound; if holding less than one fourth of a pint, tlfty cents per gros&.