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December 1, 1870


ERROR to the Circuit Court for Massachusetts; the case being this:The fifth section of an act of March 3, 1857,*fn1 'reducing the duties on importations and for other purposes,' imposes an ad valorem duty of 24 per cent. on unmanufactured wool, but exempts from duty such wool (being sheep's) 'of the value of 20 cents per pound or less, at the place of exportation.' Another act of the same day, amendatory of an act of 1846, allows the importer to make such addition in the entry to the cost or value of the imports, given in the invoice, as in his opinion may raise the same to the true market value in the country whence exported. The collector is then to have them appraised, and if the appraised value exceeds by 10 per cent. the value declared as above on entry, a duty of 20 per cent. ad valorem is to be added to the duty imposed by law. And the act concludes: 'Provided, nevertheless, that under no circumstances shall the duty be assessed upon an amount less than the invoice or entered value, any law of Congress to the contrary notwithstanding.' This enactment and this proviso being in force, Mr. Cobb, then Secretary of the Treasury, made in September, 1857, soon after the passage of them, a decision thus: 'In estimating the foreign value of wool, with reference to its exemption from or liability to duty, the appraisers can determine such value independently of the invoice, by prices current and other reliable means of information, of the value of the article in foreign markets, such as they employ in ascertaining the foreign values of other staple articles of import.' In this state of things, Kimball bought at Cape Town, Africa, a quantity of wool of the sort above mentioned, at 10 pence sterling (somewhat more than 20 cents Federal money) a pound. He did not, however, ship it at once, but kept it on hand at Cape Town. Some months, afterwards, that is to say in June, 1861, he shipped it to the United States; the price of wool at the date of shipment having fallen to 8 1/2 pence per pound (less than 20 cents Federal money). The wool, however, was invoiced in accordance with the requirements of law, at its actual cost, 10 pence sterling per pound, and was entered according to the invoice value, which, of course, made it dutiable at the rate of 24 per cent. ad valorem. The appraisers reported upon the invoice: 'Value correct in English weight, April 25, 1861.' This report was in accordance with a custom prevailing in their department to make invoices in this manner, in which the price stated is high enough to cover the market value; and the duties, $15,651, were accordingly assessed upon it at this value. After the appraisers had made their report, and duties had been estimated on the wool, but before payment of them by the importer, the collector requested the appraisers to make a re-examination of this wool, and a formal appraisement of its value. The appraisers, in reply, declined to make any appraisement of it at less than the invoice price, giving as a reason that they could not do this by law; but, at the collector's request, they made to him a statement in writing, which they expressly declared was not an official appraisement, in which they stated the market value of this wool in the principal markets of the country from which it was exported, to have been at the time of its exportation, 8 pence 3 farthings per pound, less than 20 cents Federal money, and a rate at which the wool would, of course, have been duty free. The decision of Mr. Cobb was not brought to the knowledge of the appraisers at the time of their appraisement of this wool. The importer having complied with all the technical and formal requirements necessary to enable him to maintain an action under the act of Congress, against the collector, for the recovery of duties illegally exacted, brought the suit below to recover these; it being agreed by the parties that if, upon the case stated, the value of this wool, as far as the laws of the United States were concerned, could be considered as less than its invoice price, then judgment should be for the importer; otherwise for the collector. The court below gave judgment for the collector, and the importer brought the case here; the question, and the only question, being whether, taking into consideration the language of the first statute of 1857, and also that of the proviso to the other act of the same day, the collector should have allowed this wool to be entered free, when the price stated in the invoice was more than 20 cents, and its actual value was less.

The opinion of the court was delivered by: Under these interpretations of the act by the Treasury Department, this importer acted, and the interpretation has been sustained as a true one in the 2d circuit (by Smalley, J.), in the case of Davison v. Draper.*fn5

Messrs. C. Cushing and W. E. Chandler, with a brief of Mr. W. E. Ingalls, for the importer, plaintiff in error:

1. The statement in the invoice, of the cost of the wool, was made as of course and in accordance with the law of Congress, of which the importer is obliged to state in the invoice the exact sum paid for the goods. But various other acts of Congress would indicate that it was the intention of that body that in determining whether wool was free or dutiable its actual value at the port and date of exportation should govern.

The act of 1832*fn2 is as follows:

'Wool unmanufactured, the value whereof at the place of exportation shall not exceed 8 cents per pound, shall be imported free of duty.'

That of 1857, under which this importation arose, is to the same effect.

A third, that of 1861,*fn3 is thus: it exempts––

'Wool unmanufactured, the value whereof at the last port or place from whence exported to the United States shall be 18 cents or under per pound.'

This court, in Peaslee v. Sampson,*fn4 decide that the day of sailing is the date when the value is to be taken.

2. Mr. Cobb's decision shows that the practice of the department under this very act was in harmony with this interpretation. Another decision, not presented in the case as stated, was issued June 15th, 1857, thus:

'On a question submitted to the department, it is decided that the time at which the value of wool at the port of exportation is to be estimated with a view to its exemption from duty under the tariff act of March 3d, 1857, is the date of exportation from the foreign port for the United States, as provided by law in reference to the appraisement of imports for the assessment of duties.'

3. Is the intent of Congress, as expressed in the first act of 1857, controlled by the proviso in the later act?

It being the rule in the construction of statutes, as declared by Lord Mansfield,*fn6 that all which relates to the same subject must be taken to be one system and construed consistently construed also, another well-known rule tells us, ut res magis valeat quam pereat–no conflict is to be allowed if it be possible to prevent a conflict. Now here no conflict will exist if we interpret things under the guidance of these rules, and reasonably.

The two statutes relate to entirely different matters. The proviso is to the 2d statute, and operates only on the class of cases which it embraces.

The first statute provides a way to determine whether an article is free or dutiable. If it is found to be free when tried by this test, then the proviso does not apply, for there is no duty to be assessed. If, on the other hand, the wool is found when tested by the first statute to be dutiable, then the last statute applies and says upon what that duty shall be assessed.

For instance, suppose this wool had been invoiced at 22 cents, and when examined its value at the port and period of exportation had been found to be 21 cents. By this last report it was dutiable, and then by the proviso the dutiable value would be 22 cents, or the price stated in the invoice.

An opposite mode of interpretation involves us in great difficulties.

First. If the proviso does control the previous statute, then it practically defeats its operation, for the intention of Congress in the statute of 1857 is clear, as has been previously shown, that the value of the import shall govern. The court must avoid, if possible, a construction which makes Congress stultify itself.

Second. By holding that this proviso controls the previous statute you hold out an inducement to merchants to make fraudulent sales to avoid the effect of such a construction. If, for example, prices fall between the date of purchase and the date of exportation so far as to exempt from duty that which was charged with a heavy duty, the owner will make a fictitious transfer at the lower price to some friend, and the goods will be invoiced anew at the lower price. The court must avoid a construction which makes Congress guilty of legislation whose effect is to cause frauds on the revenue.

4. Every consideration of equity and justice is here upon the side of the importer, and this should have great weight when the law is doubtful.

5. But if the proviso is irreconcilable with the preceding statute, the proviso it is which must give way, not the enactment. The enactment is the principal ...

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