Gossler v. Goodrich

10 F. Cas. 836, 3 Cliff. 71

• Court: U.S. Circuit Court for the District of Massachusetts
• Decided: May 15, 1867
• Status: Published

Opinion

CLIFFORD, Circuit Justice.

Raw sugar’, called “muscovado,” and brown sugar, not advanced beyond the raw state, under the act of the 2d of March, 1861, was subject to a duty of three fourths of one cent per pound. Refined sugars were subject to two cents per pound, whether loaf, lump, crushed, or pulverized. 12 Stat. 479. All goods, wares, and merchandise, under the act of the 5th ot August, 1861, entitled “An act to provide increased revenue from imports,” which were actually on shipboard and bound to the United States, were subject to pay only such duties as were provided by law before, and at the time of the passage of that act, 12 Stat. 293. Rates of duty on sugars were increased by the act of the 24th of December, 1861; and the parties agree that the rates of duty assessed and collected in this case, are those expressed in that act, which went into effect at the date of its passage. The language of the provision is, “that from and after the date of the passage of this act, in lieu of the duties heretofore imposed by law, on articles hereinafter mentioned, there shall be levied, collected, and paid on the goods, wares, and merchandise herein enumerated and provided for, imported from foreign countries, the following duties and rates of duty, that is to say,’’tea, coffee, and sugars, as therein classified and provided.

Observe that these “duties and rates of duty” are imposed in lieu of the duties heretofore imposed by law on the articles therein mentioned. Direct repeal would be no stronger, as it is expressly enacted that the increased duties and rates of duty shall be imposed in lieu of the duties heretofore imposed by law. Terms more explicit and comprehensive could not be employed, and the provision neither contains any exception, nor admits of any, without the necessity of resorting to positive legislation'.

Goods actually on shipboard, and bound to the United States at the date of the prior act, were specially exempted from its operation, and were only required to pay such duties as were previously provided by law; but the act of the 24th of December, 1861, under which the duties in this case were assessed and collected, contains no such exception, and there is nothing in any other act of congress which affords any support to the theory ot the plaintiffs.

Reference is made to the joint resolution of the 11th of January, 1862, as affording support to that theory, but it is clear that it cannot be construed to have any such effect, as it is expressly limited to goods warehoused at the date of the passage of the act, entitled “An act to increase the duties on tea, coffee, and sugar.” Viewed as a provision for one class of goods only, and that a different one from the importation in this case, the argument from it is rather against the theory of the plaintiffs than in their favor. “Expressio unius est exelusio al-terius.”

Suppose it were otherwise, however, and that it can be admitted that the provision in the prior law, exempting goods actually on shipboard, and- bound to the United States ax the date of the new enactment, -was in full force, still we are of the opinion that the plaintiffs ought not to prevail, because it is clear, we think, that the goods constituting the importation in this case were not, on the 5th of August, 1861, bound to the United States. Plaintiffs concede that they cannot prevail, unless the agreed statement shows that the goods were actually on shipboard at that date, and bound to the United States.

Having come to the conclusion that the goods were not at that date bound to the United States, it is not necessary to decide whether, on the facts agreed, they were, or were not, actually on shipboard, and we express no opinion on that point. Undoubtedly the case shows that the person who purchased the goods expressed an intention to make the purchase, and ship the goods to the United States; but the record contains the most plenary evidence that he changed his mind, and that the goods were actually purchased, shipped, and forwarded to Falmouth, without any definite intention to import them here, and with the right expressly reserved to discharge at London, Hamburg, or Bremen. They were invoiced in the name of a foreign house, and consigned to Berenberg, Gossler & Co., of Hamburg. Bills of lading were signed by the master, wholly inconsistent with the theory of the plaintiffs, and the vessel actually cleared for Falmouth, and for orders. The shippers were bound by the charter-party to make their election before the ship sailed, and they made it as required, and gave notice in writing.

Other questions were discussed at the bar, but in the view of the case we have taken It is not necessary to examine them, as the points actually decided dispose of the controversy. The duties were correctly computed and properly collected, and according to the agreement of the parties, there must be judgment for the defendant, with costs.