HAND, Circuit Judge (after stating the facts as above).
We could dispose of this case merely by saying that the Act of February 4, 1909 (Comp. St. § 6123), did not repeal section 3 of the Foraker Act (31 Stat. 77 [Comp. St. § 3749]), which therefore imposed the tax, even of section 300 of the War Revenue Act of 1917 (Comp. St. 1918, § 5986a) and section 600 of the War Revenue Act of 1918 (Comp. St. Ann. Supp. 1919, §§ 5986e-5986i) did not specifically do so. The supposed repeal confessedly rests in implication, which is never favored, and which in this case depends upon the canon that a later specific statute repeals an earlier general one. That, like all other canons of statutory construction, is no more than a lamp in the dark, and is useless in a plain case. By the decision in Anderson v. Newhall, 161 F. 906, 88 C.C.A. 511, Congress was erroneously advised that section 3 of the Foraker Act did not cover bay rum. It is plain that the act of 1909 was passed to supply that casus omissus. Thus the argument, to succeed, must survive this paraphrase: Congress meant to repeal an act, which it supposed to omit a tax, by enacting another to supply the omission. The mere statement of the argument was impossible before Jordan v. Roche, 228 U.S. 436, 33 S. Ct. 573, 57 L. Ed. 908, and it becomes even colorable only by imputing retroactively to Congress acquaintance with a fact of whose opposite it had been assured when it passed the law. We decline to follow such fantastic casuistry.
Moreover, in our judgment, section 300 of the War Revenue Act of 1917 and section 600 of the War Revenue Act of 1918 of themselves impose the tax. Here the plaintiff's argument rests upon the inaptness of the phrase, "imported into" the United States, when applied to Porto Rican spirits. Certainly that was so ruled in De Lima v. Bidwell, 21 S. Ct. 743, 182 U.S. 1, 45 L. Ed. 1041, and we agree that prima facie the argument is good. Further, we assume that both sides would agree that Porto Rican bay rum was not "produced" in the United States. Downes v. Bidwell, 21 S. Ct. 770, 182 U.S. 244, 45 L. Ed. 1088; Balzac v. Porto Rico, 42 S. Ct. 343, 258 U.S. 298, 66 L. Ed. 627.
Hence it is argued to be outside the scope of either War Revenue Act. Again we think that obvious meanings are lost in dialectic. These acts were passed at a time when Congress was reaching for all possible sources of revenue; these sections taxed substances whose burden for over a decade and a half it had maintained at a parity, whether they were made on the continent or came from the island. It must be supposed that the choice of an in apposite phrase manifested a purpose to abandon that policy at the very time when we should especially look for its continuance. That seems to us more of a strain than the words will bear.
And, if it be not, section 301, Revenue Act 1917 (Comp. St. 1918, § 8739b), lays any doubts, because the phrase is there repeated in a context which shows that "imports" covered Porto Rican spirits. The two sections follow each other; they refer to the same substances; they are complementary in the sense that the motives which led to the added imposition depended in part upon the limitation of the available supplies. We must own that the plaintiff appears to us to rest upon fictitious verbal difficulties, raised to obscure a very plain case.
Judgment affirmed.
Comments