Reiche v. Smythe

ERROR to the Circuit Court for the Southern District of New York; the case being thus:

The 23d section of the act of March 2d, 1861, chap. 68, provides, that

'The importation of the articles hereinafter mentioned and embraced in this section shall be exempt from duty:

"Animals, living, of all kinds; birds, singing and other, and land and water fowls."

This provision being in force, an act of May 16th, 1866, was passed, which provided—

'That on and after the passage of this act there shall be levied, collected, and paid, on all horses, mules, cattle, sheep, hogs, and other live animals imported from foreign countries, a duty of 20 per centum ad valorem.'

In this state of legislation, and after the passage of the second of the above-mentioned acts, one Reiche imported into New York a lot of canary and other birds, on which the collector exacted a duty of 20 per centum ad valorem, which was paid under protest. Reiche brought this suit in the court below to recover the money. The only inquiry was whether living birds at the date of this importation were dutiable.

The court below decided that they were, and judgment being given accordingly the importer brought the case here.

Mr. B. H. Bristow, Solicitor-General, and Mr. C. H. Hill, Assistant Attorney-General, for the United States, and in support of the ruling below:

It may be urged on the other side that inasmuch as Congress, in the act of 1861, named 'animals, living, of all kinds,' and in the same section also mentioned 'birds, singing and other,' &c., the intention was to recognize a restricted meaning of the word 'animals,' as not including 'birds,' and to introduce and sanction such restricted meaning as a definition of the terms 'living animals' and 'live animals' when used in the revenue laws; so that when, in the act of 1866, a duty was imposed upon all live animals, without mentioning birds, the legislature must be understood to have intended that the latter should not be included, but should remain exempt.

The answer is, that the various duty acts are too full of examples of tautology and repetition to warrant such a conclusion; that they often show needless particularity in enumeration, accompanied by general terms plainly including the same things also mentioned in detail. Thus, in section 22 of the act of 1861, a duty is imposed upon 'articles worn by men, women, or children, of whatever material composed,' &c.; and yet, notwithstanding these comprehensive terms, there follow, in the same section, numerous particulars already clearly embraced in those terms, as 'bracelets, braids, chains, curls, ringlets, braces, suspenders, caps, hats,' &c. Like repetitions are found in the 13th section of the act of July 14th, 1862, and in schedule C, in the act of July 30th, 1846.

The phrase, all 'other live animals,' as employed in the act of 1866, is clear, comprehensive, and explicit. The addition of the designation of birds, in a single instance, in a former act, is a casual circumstance of too slight significance to warrant a practical interpolation, in the later special statute, of an exception to its plain import.

Mr. Frederick Chase, contra.

Mr. Justice DAVIS delivered the opinion of the court.