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1883

SEC. 2505. The provuce of the forests of the State of Maine upon the Saint John River and its tributaries, owned by American citizens, and sawed or hewed in the Province of New Brunswick by American citizens, the same being. unmanufactured in whole or in part, which is now admitted into the ports of the United States free of duty, shall continue to be so admitted, under such regulations as the Secretary of the Treasury shall from time to time prescribe.

SEC. 2506. The produce of the forests of the State of Maine upon the Saint Croix River and its tributaries, owned by American citizens, and sawed in the Province of New Brunswick by American citizens, the same being unmanufactured in whole or in part, and having paid the same taxes as other American lumber on that river, shall be admitted into the ports of the United States free of duty, under such regulations as the Secretary of the Treasury shall from time to time prescribe.

DECISIONS UNDER THE ACT OF 1897.

Herring-Box Shooks.—Certain produce of the forests of the State of Maine upon the St. John River and its tributaries, owned by American citizens, which consists of herring-box shooks, being simply pieces of wood sawed longitudinally and transversely to produce sizes suitable for being made up into boxes, are "otherwise unmanufactured in whole or in part” than by sawing, within the meaning of section 20, tariff act of 1897, and are free of duty under the provisions of said section, such articles having been admitted free of duty under similar previous legislation. In re Pike, T. D. 22303 (G. A. 4718), followed. Tide Water Oil Co. v. U. S. (171 U. S., 210), U. S. v. Hathaway (4 Wall., 404), and U. S. v. Quimby (ib., 406) distinguished.-T. D. 22590 (G. A. 4800).

Section 20 of the tariff act which went into effect July 24, 1897, admitting to free entry certain produce of Maine forests upon the St. John River, sawed or hewed in New Brunswick by American citizens, " which is now admitted into the ports of the United States free of duty,” revives section 2508 of the Revised Statutes, a substantially similar provision, in full force and effect, and accords free entry to all articles which fell within the scope of its terms when it was in operation.

Herring-box shooks of a character within the language of said section 20 are entitled to free entry thereunder, notwithstanding such merchandise was dutiable under the tariff act of August 28, 1894.-T. D. 22303 (G. A. 4718).

DECISIONS UNDER THE ACT OF 1894.

Packing-Box Shooks of Maine lumber, sawed in New Brunswick, are dutiable as shooks and not free under paragraph 676 as sawed boards. rough. Sections 15 and 16 of the act of 1890 were repealed by the act of 1894, and shooks are not exempt under said sections.-T. D. 16565 (G. A. 3261).

Herring-Box Shooks, the produce of the forests upon St. John River, sawn in New Brunswick, are dutiable as shooks, and are not free under R. S. 2508. This section was contained in section 15 of the act of 1890, which was repealed by the act of 1894.-T. D. 15691 (G. A. 2872).

DECISIONS UNDER THE ACT OF 1890.

Clapboards Planed or dressed on one side in New Brunswick are further manufactured than sawed or hewed, and are not "unmanufactured in whole or in part.”—T. D. 15012 (G. A. 2589).

Sec. 37. There shall be levied and collected annually on the first day of September by the collector of customs of the district nearest the residence of the managing owner, upon the use of every foreign-built yacht, pleasure boat, or vessel, not used or intended to be used for trade, now or hereafter owned or chartered for more than six months by any citizen or citizens of the United States, a sum equivalent to a tonnage tax of $7 per gross ton.

In lieu of the annual tax above prescribed the owner of any foreignbuilt yacht, pleasure boat, or vessel above described may pay a duty of 35 per centum ad valorem thereon, and such yacht, pleasure boat, or

vessel shall thereupon be entitled to all the privileges and shall be subject 1909

to all the requirements prescribed by sections forty-two hundred and fourteen, forty-two hundred and fifteen, forty-two hundred and seventeen, and forty-two hundred and eighteen of the Revised Statutes and Acts amendatory thereto in the same manner as if said yacht had been built in the United States, and shall be subject to tonnage duty and light money only in the same manner as if said yacht had been built in the United States.

So much of section five of chapter two hundred and twelve of the laws of nineteen hundred and eight, approved May twenty-eighth, nineteen hundred and eight, as relates to yachts built outside the United States and owned by citizens of the United States is hereby repealed.

This section shall not apply to a foreign-built vessel admitted to Amer.

ican registry. 1897 (No corresponding provision.) 1894 (No corresponding provision.) 1890 (No corresponding provision.) 1883 (No corresponding provision.)

DECISIONS UNDER SECTION 37, ACT OF 1909. Tonnage Tax on the Use of Foreign-Built Yachts.

Tax on USE OF FOREIGN-BUILT YACHTS.-Billings v. U. S. (232 U. S., 261 ; T. D. 34429) followed to the effect that under section 37, tariff act of 1909, in imposing a tax on the use of foreign-built yachts there is authority to bring an action in personam against the owner for the recovery; that the tax became due on the 1st day of September next following the passage of the act; that the six months' clause applied only to the charterer and not to the owner of such a yacht; and that that statute does not violate the due-process clause of the fifth amendment.

AD VALOREM IN LIEU OF TONNAGE Tax.-The second paragraph of section 37, tariff act of 1909, giving the owner of a foreign-built yacht an option to pay an ad valorem of 35 per cent in lieu of the annual tonnage tax imposed on the use of such yacht by the first paragraph of the section, is separable from the first paragraph, and its validity is not involved in an action to recover the tonnage tax from the owner of a foreign-built yacht who has not availed of the option.

TREATY-SUBSEQUENT INCONSISTENT STATUTES.—When a treaty is inconsistent with a subsequent act of Congress the latter will prevail. The Constitution does not declare that the law established by a treaty shall never be altered or repealed by Congress; and while good faith may cause Congress to refrain from making any change in such law, if it does so its enactment becomes the law. Although the other contracting power to a treaty may have ground for complaint if Congress passes a law changing the law established by the treaty, every person is still bound to obey the latest law passed. No person acquires any vested right to the continued operation of a treaty.—Rainey v. U.S. (U. S.), T. D. 34436; T. D. 32303 (C. C.) modified and affirmed.

YACHT OWNED BY CITIZEN PERMANENTLY RESIDENT ÎN FOREIGN COUNTRY.– U. S. v. Goelet (232 U. S., 293; T. D. 34433) followed to effect that the tax imposed by section 37, tariff act of 1909, does not apply to the use of a foreign

built yacht owned by a citizen of the United States who was permanently resident and domiciled in a foreign country for more than one year prior to September 1, 1909, and to the levy of such tax.-U. S. v. Bennett (U. S.), T. D. 34435.

YACHTS USED OUTSIDE JURISDICTION OF UNITED STATES.—The tax imposed by section 37, tariff act of 1909, applies to the use of a foreign-built yacht owned by a citizen of the United States, although such yacht, for a period of more than one year prior to September 1, 1909, and to the levy of such tax, was used wholly outside of the limits and territorial jurisdiction of the United States.

INTEREST ON Tax.-The United States is entitled to recover interest upon the tax imposed upon the use of foreign-built yachts under section 37, tariff act of 1909.-U. S. v. Bennett (U. S.), T. D. 34434.

Where, on bringing into the country a foreign-built yacht, no election is made under the provisions of paragraph 37, tariff act of 1909, to pay an ad valorem duty rather than a tonnage tax, a payment of the ad valorem duty levied on subsequent entry of the yacht would not excuse the payment of a tonnage tax which had previously accrued and become a debt to the Government.-T. D. 35765 (G. A. 7784).

Billings v. U. S. (232 U. S., 261; T. D. 34429) followed to the effect that the tax on the use of foreign-built yachts imposed by section 37, tariff act of 1909, is not an unconstitutional exercise of power by Congress, and it became due for the year 1909 on the 1st day of September, 1909.

PERMANENT RESIDENCE IN Foreign COUNTRY.—The tax imposed by section 37, tariff act of 1909, does not apply to the use of a foreign-built yacht owned by a citizen of the United States who was permanently resident and domiciled in a foreign country for more than one year prior to September 1, 1909, and to the levy of such tax.-U. S. v. Goelet (U. S.), T. D. 34433.

WHEN DUE-STATUTORY CONSTRUCTION.–Under section 37, tariff act of 1909, imposing a tax on the use of foreign-built yachts owned or chartered for more than six months by citizens of the United States, to be collected annually on September 1, the tax became due on the first day of September next occurring after the act became effective; further, held, that the six months' clause relates only to the chartering of the yachts, and the word "annually” indicates continuity, and that the tax is not a sporadic one to cease after a single payment. Where words are used in a statute in their everyday sense and not in a technical one they should be so construed.

ACTUAL USE.—The use of a foreign-built yacht which renders the owner subject to the tax imposed by section 37, tariff act of 1909, is active and actual use and not the potential use arising from the mere fact of ownership.

RETROACTIVE OPERATION OF STATUTE.—The fact that a tax statute operates retroactively does not necessarily cause it to be unconstitutional. Flint v. Stone Tracy Co. (220 U. S., 107). The rule that statutes should be construed if possible so as not to operate retroactively does not authorize a judicial reenactment of the statute to save it from acting retroactively if Congress intended it so to do.

TONNAGE Tax-INTEREST.-The Government is entitled to interest on taxes on use of foreign-built yachts under section 37, tariff act of 1909, from the date when the taxes become due, and may maintain an action against the owner or charterer therefor.–Billings v. U. S. (U. S.), T. D. 34429; T. D. 32303 (C. C.) modified and affirmed.

Decided on authority of Billings v. U. S. (232 U. S., 261; T. D. 34429) ; 190 Fed., 359 (T. D. 32303) modified and affirmed.-U. S. v. Billings (U. S.), T. D. 34430).

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NONUSE OF YACHT.-Billings v. U. S. (232 U. S., 261; T. D. 34429) followed and distinguished, to the effect that the owner of a foreign-built yacht is not liable for the tax imposed by section 37, tariff act of 1909, if the yacht was not actually used at all during the preceding year.–Pierce v. U. S. (U. S.), T. D. 34431).

USE OF Yacht.-Decided on authority of Pierce v. U. S. (232 U. S., 290 ; T. D. 34431), 190 Fed., 359 (T. D. 32303) reversed.—Pierce v. U. S. (U. S.), T. D. 34432.

Section 37 of the tariff act of 1909 provides for a tonnage tax of $7 per ton upon the use of a foreign-built yacht, in lieu of which the owner of such yacht may pay an ad valorem duty of 35 per cent.

It appears that the yacht in question in this case, called La Rita II, was brought into the country under entry 15152, September 3, 1912. A tonnage duty was levied upon said yacht, which was ultimately paid by the owner of the yacht. The collector of customs, subsequent to that proceeding, levied an ad valorem duty under the second paragraph of section 37. The importer filed his protest against the payment of the duty, claiming that the law under which it was levied was unconstitutional. It has subsequently been declared constitutional with reference to the tonnage tax; the provision for an ad valorem duty seems not to have been involved. See Billings v. U. S. (232 U. S., 261; T. D. 34429), U. S. v. Billings (232 U. S., 289; T. D. 34430), Pierce v. U. S. (232 U. S., 290; T. D. 34431), Pierce v. U. S. (232 U. S., 292; T. D. 34432), U. S. v. Goelet (232 U. S., 203; T. D. 34433), U. S. v. Bennett (232 U. S., 299; T. D. 34434), U. S. v. Bennett (232 U. S., 308; T. D. 34435), and Rainey v. U. S. (232 U. S., 310; T. D. 34436).

This protest should be construed as one against the payment of the ad valorem duty of 35 per cent which was assessed. The law appears to provide that in lieu of the tonnage tax the owner may elect to have an ad valorem duty assessed. In case of no election being made, it would be the duty of the collector to levy the tonnage tax, which, having been levied, would exonerate the owner from the payment of the ad valorem duty which appears to have been exacted in this case. He was not liable for this duty, it appearing from the record that the tonnage tax was paid.-Ab. 36858 (T. D. 34908).

Customs REGULATIONS-JUDICIAL NOTICE.-Federal courts may take judicial notice of customs regulations. DOMICILE-RESIDENCE.—The terms “ domicile" and “ residence"

are not synonymous. Domicile implies residence plus animus manendi.

FOREIGN BUILT.-A foreign-built yacht, within the meaning of section 37, tariff act of 1909, imposing a tonnage tax on the use of foreign-built yachts by United States citizens, is one originally constructed outside the United States; and, though changed, altered, and repaired, it remains foreign-built if the changes, alterations, and repairs do not change its identity so that, were it a vessel built in the United States, it might be rechristened without application to the Commissioner of Navigation.

PRIVILEGE OF USE.—The tonnage tax imposed by section 37, tariff act of 1909, on the use of foreign-built yachts by United States citizens, is directed against the privilege of use, and therefore assessable to and collectible from the personal user.

NOTICE TO TAXPAYER.-In enforcing the provisions of section 37, tariff act of 1909, imposing a tonnage tax on the use of foreign-built yachts, which “shall be levied and collected annually by the collector of customs of the district nearest the residence of the managing owner," the collector must do something by way of apprising the person who is called upon to pay the tax; and one particular

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collector, namely, the one of the district nearest the residence of the managing owner, being charged with the duty of levying and collecting the tax, no other collector can lawfully perform it.

TONNAGE OF REBUILT Yachts.-In estimating the tonnage tax imposed by section 37, tariff act of 1909, on the use of foreign-built yachts, it is proper, in the case of yachts whose tonnage has been increased in rebuilding, to compute the tax on the basis of the increased tonnage.-U. S. v. Billings (C. C.), T. D. 32304.

FEDERAL TAXING POWER—CONSTITUTIONAL LIMITATIONS.--There are no limita. tions upon the right of Congress to discriminate in selecting the subjects of taxotion so long as it follows the particular constitutional provisions relating to the levying of taxes.

DUE PROCESS OF LAW.-Section 37, tariff act of 1909, imposing a tonnage tax upon the use of foreign-built yachts by citizens of the United States, is in accord with all the special constitutional limitations upon the taxing power, and can not, by reason of discriminating between foreign-built and domestic-built yachts, be held to violate the due process of law provision of the fifth amendment to the Constitution.

TAXATION OF PROPERTY OUTSIDE TERRITORIAL JURISDICTION.-The United States Government having power to afford protection to the persons and property of its citizens abroad, its taxing power is not limited by the rule that property outside the jurisdiction of a State may not be subjected to taxation there. Congress has power to tax foreign-built yachts owned by citizens and located in foreign countries.

CONSTRUCTION.—The presumption is that a tax law applies only to subjects within the territorial jurisdiction; and section 37, tariff act of 1909, levying a tonnage tax on the use of foreign-built yachts by United States citizens, does not evidence any intention on the part of Congress to tax the use of such yachts in foreign waters, either by resident or nonresident citizens.

OWNED YACHTS-CHARTERED YACHTS-Six MONTHS' LIMITATION.—The six months' limitation in section 37, tariff act of 1909, which provides that a tonnage tax “shall be levied and collected annually on the 1st day of September upon the use of every foreign-built yacht now or hereafter owned or chartered for more than six months," applies to chartered yachts only.

ACTUAL USE-PRIVILEGE OF USE.-The tonnage tax imposed by section 37, tariff act of 1909, on the use of foreign-built yachts was intended to cover the privilege of their use, and actual use is not a prerequisite to liability for the tax. It was the intention of Congress that such tax should be levied on the 1st day of every September following the enactment of the statute

TREATIES–SUBSEQUENT INCONSISTENT STATUTES.-When a treaty is inconsistent with a subsequent act of Congress the latter will prevail; and Britishbuilt yachts are therefore not exempt from the tonnage tax imposed by section 37, tariff act of 1909, upon the use by United States citizens of foreign-built yachts, by virtue of the treaty of 1815 with Great Britain, which provided that no higher or other duties or charges should be imposed in the United States upon British vessels than those imposed upon vessels of the United States.

TONNAGE TAXES—How ENFORCED.-An action in the nature of debt will lie against the owners or charterers of foreign-built yachts to enforce the collection of the tonnage tax imposed upon the use of such yachts by section 37, tariff act of 1909.

REVENUE ACT-SENATE AMENDMENT—CONSTITUTIONALITY.-Section 37, tariff act of 1909, imposing a tax upon the use of foreign-built yachts, is not void hy reason of Article I, section 7, of the Constitution, which requires that “all bills

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