ERROR TO THE CIRCUIT COURT OF THE UNITED STATES FOR THE SOUTHERN DISTRICT OF NEW YORK.
MR. JUSTICE BRADLEY delivered the opinion of the court.
This is a suit to recover alleged excess of duties exacted on certain cargoes of asphaltum in cakes, imported by Bradbury, the plaintiff below, from Antwerp, in May, 1883. Two questions are presented in the case for our determination: First, whether the 7th section of the act of March 3d, 1883, entitled "An act to reduce internal revenue taxation, and for other purposes," 22 Stat. 488, c. 121, went into effect at the time of the passage of the act, or not until the 4th of July following; Secondly, if it did go into effect at the time of the passage of the act, whether, under the circumstances of this case, the plaintiff below was entitled to the benefit of that section.
Prior to the passage of the act referred to under the 2907th and the 2908th sections of the Revised Statutes, (which were taken from the 9th section of the act of July 28th, 1866, 14 Stat. 330, c. 298,) the collector, in determining the "dutiable value" of merchandise, was required to add to the cost, or actual wholesale price or general market value, at the time of exportation, in the principal markets of the country whence the goods were imported, the cost of transportation, shipment and transshipment, with all the expenses included, from the place of growth, production, or manufacture, to the vessel in which shipment was made to the United States; also the value of the
sack, box, or covering, and commissions and brokerage; which additions were to be regarded as part of the actual value, and a penalty was imposed for not including them. These sections were repealed by the 7th section of the act of March 3d, 1883. They are repealed by words in the present tense, thus: "That sections twenty-nine hundred and seven and twenty-nine hundred and eight . . . be, and the same are hereby, repealed, and hereafter none of the charges imposed by said sections, or any other provisions of existing law, shall be estimated in ascertaining the value of goods to be imported." We do not see how there can be any doubt that this repealing section went into immediate effect. The law itself went into immediate effect, although, it is true, various provisions of it, contained in other sections, were postponed to take effect, some on the first of July and some on the first of May. But where such postponement was intended it was expressed, and only referred to the parts that were so postponed. It did not affect the section in question. And such was the understanding of the Treasury Department itself at the time. In a Treasury circular of March 12th, 1883, addressed to the collectors of customs, the Secretary, referring to the act in question, then just passed, said: "Various sections recite the date when each shall go into effect, and, so far as concerns these sections, those dates control. Section 7, however, names specifically no date when it is to go into operation, and the department holds that it takes effect from and after the date of the passage of the act." This cotemporaneous construction is entitled to some weight in favor of importers. United States v. Johnston, 124 U.S. 236, 253. At all events it was undoubtedly the correct construction.
The question then arises whether the plaintiff below, by anything that took place in the entry of the goods at the customhouse, or by any omission to do what the law required, precluded himself from being entitled to the benefit of this statute.
Under the old law, the cost or value of the goods at the place of production was often merged for convenience with the costs of transportation of the place of shipment and the other charges, and the aggregate was called the price or value "free
on board" of the vessel in which the goods were shipped to the United States. This price or value, free on board, or f.o.b., in the absence of fraud, represented the "dutiable value," subject, of course, to correction by appraisement. When the vessel arrived, and the consignee presented the entry at the custom-house, it was accompanied with the invoice, showing this price or value.In the present case, although the goods were shipped in April, the consignors in Europe, not being aware of the passage of the act of March 3d, 1883, repealing sections 2907 and 2908, made out the invoices in the usual way, stating the price of the goods as free on board at Antwerp, including therein the original cost of the goods at the mines, near Neufchatel, Switzerland, their cost of transportation from Neufchatel to Antwerp, and the other charges required by the repealed sections. This invoice was duly certified by the consul at Mannheim, Germany. Before the entry of the goods, a corrected supplementary invoice had arrived, in answer to a telegram, and was presented at the time of the entry; but it had no consular certificate -- that being supplied afterwards. On the trial of the cause, the plaintiff introduced evidence tending to show these facts. He produced the entry, which described the importation as "12,000 cakes, 300,000 kilometers asphaltum, marks 15,750, $3749," with the usual consignee's oath that the invoice and bill of lading produced with the entry were the true and only ones received, and that the invoice exhibited the actual cost or fair market value at Neufchatel of the goods and all charges thereon. The invoice, certified by the consul, on which the entry was based, was also produced in evidence, representing the goods as "a quantity of asphaltum, 300,000 kilograms, at 52.50 marks per 1000 kilograms, 15,750 marks, free on board -- Antwerp." There was attached to this invoice on making the entry, and when produced in evidence, the uncertified, supplementary invoice before referred to, which represented the goods as "a quantity of asphaltum, 300,000 kilograms; value at the mines, 34.50 marks per 1000 kilos., M 10,350. Freight and charge from the mines to Antwerp, free on board, at 18 marks per 1000 kilos., 5400. Free on board Antwerp, marks 15,750."
Attached to the consular invoice was the oath of the owner of the goods, which stated, among other things, that said invoice contained the actual cost and quantity thereof and of all charges thereon. The certificate of the consul attached to said invoice was dated 20th of April, 1883, and certified, among other things; that the invoice, "in which are mentioned and described certain asphaltum, amounting with the charges thereon to the gross sum of, marks, 15,750, was produced to him by the owner," and that the actual market value of the goods (except as corrected by him) was correct and true.
The plaintiff further offered evidence to show that, being charged with duties on the entire amount of 15,750 marks, he protested against the assessment on the ground that the defendant "assessed duty upon the cost of transportation, shipment and transshipment, with all expenses included, from the place of production and manufacture to the vessel in which the shipment was made to the United States, contrary to section 7 of the act of March 3, 1883," claiming "that said charges were not subject of appraisement or duty;" and on a second ground that the weigher's return showed a less ...