Appeal from the Circuit Court of the United States for the Northern District of California.

In the matter of the petition and application of the secretary of the treasury for a review, under an act of congress, approved June id, 1890, entitled “An act to simplify the laws in relation to the collection of revenues,” of the questions of law and fact involved in a decision of the board of general appraisers on duty at the port of New York, in the matter of the classification of certain T steel rails, merchandise imported by the. Bank of California, of San Francisco, Cal., into the port of said San Francisco, the subsequent, liquidation of duties whereon was protested by the Anglo-California Bank, Limited, at the same place.

The board of general appraisers sustained the protest of the Anglo-California Hank against the decision of the collector of customs at San Francisco. The circuit court reversed the decision of the appraisers. 71 Fed. 505. The material facts upon which the matter in issue was tried are stated in the opinion of the appraisers and of the circuit court to be as follows:

“The Bank of California at various times between March 2, and June 24, 1887, imported into the port of San Francisco certain T steel rails, aggregating 5,678 tons. These rails remained in general order unclaimed until February 27, 1888, when warehouse entries thereof were made and bonds given by the Bank of California as importer and consignee. Said warehouse entries were liquidated, under the act of March 3. 1883, at $17 per ton, and at 1he expiration of one year from the date of the importation the additional duty of 10 per cent., prescribed by section 2070, Rev. St., was charged up on the bonds against the merchandise. Between September 21, 1888, and December 6, 1880, four withdrawals for consumption were made, and The amount of duties charged thereon was paid. When the bonded period of three years was about to expire, the Oregon Pacific Railroad Company, for whose account the steel rails in question liad been imported, represented to the treasury department, that serious casualties liad occurred on its road by storms and floods, and requested a postponement of the sale of merchandise required under section 2971. Rev. St., whereupon the secretary of the treasury authorized a postponement of the sale for three months without; giving due notice to or having the consent of Uus principal or sureties on the warehouse bonds. Similar postponements have been allowed for periods of six months up to the present date, the Bank of California uniting in two instances in the application for delay. A postponement of the sale of the merchandise allowed by the secretary of the treasury September 16, 1893, was conditioned upon the consent of the sureties on the bond. The final postponement was authorized by the secretary of the treasury March 25, 1895, pending decision regarding the legal status of the goods by the board of general appraisers. Tinder date of June 30, 1890, more than three years after the date of importation, the secretary of the treasury authorized the collector at San Francisco to permit withdrawals for consumption of the steel rails in question, from time to time, in such quantities as might be desired. On October 21, 1890, the treasury department decided that withdrawals might he made under the act of 1890, by the importers, at the rates of duty, regular and additional, prescribed by the act of 1883. Notwithstanding this decision, 3,306 tons of steel rails were withdrawn for consumption, and, in addition to 10 per cent., as prescribed by section 2970, Rev. St., duties were paid thereon and accepted by the collector at $13.44 per ton, the rate prescribed therefor in the act of October 1, 1890. All charges and expenses, including storage charges, have been paid. The importers recently offered to withdraw for consumption the remainder of the merchandise in bonded warehouse at the rate prescribed in paragraph 117 of the act of August 28, 1894. Permission to make such withdrawals has not been granted •by the secretary of the treasury, ’out in lieu thereof authority has been given the collector to permit withdrawal entry to be made by the importers of a small portion of the merchandise, at the rates prescribed in the act of March 3, 1883, in order that a test case for judicial decision might be made. In accordance with the authority thus granted, entry for consumption of 20 of the steel rails in question (weighing about five tons) was made by the im-.pprters, and duty was assessed thereon by the collector at $17 per ton, and 10 pdr cent, additional, under the act of March 3, 1883, the act in force at the time the merchandise was imported. Against this action the importers protested, claiming that the merchandise in question, having been withdrawn for consumption after August, 1801, was properly dutiable at seven-twentieths of 1 cent per pound, in accordance with the provisions of section 1 and paragraph 117 of the .'present act.”

Upon these facts the questions presented involve a construction of certain sections 'of thé Revised Statutes of the United States; of the act of June 10, 1896, to simplify 'the laws in relation to the collection of the revenue (20 Stat. '131, 142), known as the “Adminislrative Act”; of the act of October 1, 1890, to reduce the revenue 'and equalize duties on imports, and for other purposes (26 Stat. 567, 625), known as the "‘McKinley Act”; and of the act of August '28, 1894, to reduce taxation, to provide revenue for the government, and 'for ,Other purposes (28 Stat. 509, 570), known as the “Wilson Act.” The sections óf the statutes read as follows:

Revised Statutes-.

“Sec. • 2970. Any merchandise deposited in bond in any public or private bonded warehouse may be withdrawn for consumption within one year from the. date of original importation on payment of the duties and charges to which it may be subject by law at the time of such withdrawal; and after the expiration of one .year from the date of original importation, and until the expiration of three years from such date, any merchandise in bond may be withdrawn for consumption on payment of the duties assessed on the original entry and charges, and an additional duty of ten per centum of the amount of such duties and charges.

• “Sec. 2971-. All merchandise which may be deposited in public store or bonded warehouse may be withdrawn by the owner for exportation to foreign countries;- or may be transshipped to any port of the Pacific or western coast of the United States at any time before the expiration of three years from the date of original importation; such goods on arrival at a Pacific or western port to be subject -to the same rules and regulations as if originally imported •there. Any goods remaining in public store ■ or bonded warehouse beyond three years shall be regarded as abandoned to the government, and sold under such regulations as the secretary of the treasury may prescribe, and the proceeds paid into the treasury. In computing this period of three years, ■if such exportation or transshipment of any merchandise shall, either for the whole or any part of the term of three years, have been prevented by reason of any order of the president, the time during which such exportation or transshipment of such merchandise shall have been so prevented shall be excluded from the- computation. Merchandise withdrawn for exportation shall be subject only to the payment of such storage and charges as may be due thereon-.

• “Sec. 2972.. The secretary of the treasury, in case of any sale of any merchandise remaining in public store or bonded warehouse beyond three years, may pay to the owner, consignee, or agent of such merchandise, the proceeds thereof, after deducting duties, charges, and expenses in conformity with the provision relating to the sale of merchandise remaining in a warehouse for .more than one year. ...

..'.“Sec. 2973..If: any merchandise shall remain in public store beyond one -year," without payment Of the duties and charges thereon, except as herein- • before-provided, then such merchandise shall be appraised by the appraisers, -if there be any at such port * * and sold by the collector at public auction, on due public notice thereof. being first given, in the manner and Cor the time, to be .'prescribed by a general regulation of the treasury depart‘.ment. At such public sale, distinct printed catalogues descriptive of. such merchandise, with the appraised value affixed thereto, shall be distributed] among the persons present at such sale. A reasonable opportunity shall be given before such sale, to persons desirous of purchasing, to inspect the' quality of such merchandise. The proceeds of such sales, after deducting the usual rate of storage at the port in question, with all other charges and expenses, including duties, shall he paid over to the owner, importer, consignee, or agent, and proper receipts taken for the same.”

Administrative Act.

“See. 20. Any merchandise deposited in any public or private bonded warehouse may be withdrawn for consumption within three years from the date of original importation, on payment of the dulies and charges to which it may be subject by law at the time of such withdrawal: Provided, that nothing herein shall affect or impair existing provisions of law in regard to the disposal of perishable or explosive articles.”

Section 2Í), after enumerating several sections of the Revised Statutes (sections 2970 and 2971 not being mentioned), and repealing them in direct terms, reads as follows:

“And all other acts and parts of acts Inconsistent with the provisions of this act, are hereby repealed, but the repeal of existing laws or modifications thereof embraced In this act shall not affect any act done, or any right accruing or accrued, or any suit or proceeding had or commenced in any civil cause before the said repeal or modifications; but all rights and liabilities under said laws shall continue and may be enforced in the same manner as if said repeal or modifications had not been made. * * * ”

McKinley Act.

The enacting clause reads as follows:

“That on and after the sixth day of October, eighteen hundred and ninety, unless otherwise specially provided for in this act, there shall be levied, collected, and paid upon all articles Imported from foreign countries, and mentioned in the schedules herein contained, the rates of duty which are, by the schedules and paragraphs, respectively prescribed, namely.”

Schedule 0, paragraph 141:

“Railway bars, made of iron or steel, and railway bars made in part of steel, T rails, and punched Iron or steel flat rails, six-tenths of one cent per pound.”

Sections 50, 54, and 55 of this act read as follows:

“Sec. 50. That on and after the day when this act shall go into, effect all goods, wares, and merchandise previously Imported, for which no entry lias been made, and all goods, wares, and merchandise previously entered without payment of duty and under bond for warehousing, transportation, or any other purpose, for which no permit of delivery to the importer or his agent has been issued, shall be subjected to no other duty upon the entry or the withdrawal thereof than if the same were imported respectively after that: day: Provided, that any imported merchandise deposited in bond in any public or private bonded warehouse having been so deposited prior to the first day of October, eighteen hundred and ninety, may be withdrawn for consumption at any time prior to February first, eighteen hundred and ninety-one, upon the payment of duties at the rates in force prior to the passage of this act: Provided further, that when duties are based upon the*weight! of merchandise deposited in any public or private bonded warehouse said duties shall be levied and collected upon the weight of such merchandise at the time of its withdrawal.”

“Sec. 54. That section twenty' of the act entitled ‘An act to simplify the laws in relation to the collection of revenues,’ approved June 30th, eighteen hundred and ninety, is hereby amended to read as follows: ‘See. 20. That any merchandise deposited in bond in any public or private bonded warehouse may be withdrawn for consumption within three years from the date of original importation, on payment of the duties and charges to which it may be subject by law at the time of such withdrawal: Provided, that nothing herein shall affect or impair existing provisions of law in regard to the disposal of perishable or explosive articles.’ ”

“Sec. 55. That all laws and parts of laws inconsistent with this act are hereby repealed: Provided, however, that the repeal of existing laws, or modifications thereof, embraced in this act shall not affect any act done or any right accruing or accrued, or any suit or proceeding had or commenced in any civil cause before the said repeal or modifications, but all rights and liabilities under said laws shall continue and may be enforced in the same manner as if said repeal or modification had not been made.”

Wilson Act.

The enacting clause is:

“That on and after the first day of August, eighteen hundred and ninety-four, unless otherwise specially provided for in this act, there shall be levied, collected and paid upon all articles imported from foreign countries or withdrawn for consumption, and mentioned in the schedules herein contained the rates of duty which are by the schedules and paragraphs respectively prescribed, namely.”

Schedule O, paragraph 117:

“Railway bars, made of iron or steel, and railway bars made in part of steel, T rails, and punched iron or steel fiat rails seven-twentieths of one cent per pound” (which eomp.uted upon the basis of 2,240 pounds to the ton would be $7.84 per ton.)

Section 72:

“All acts and parts of acts inconsistent with the provisions of this act are hereby repealed, but the repeal of existing laws or modifications thereof embraced in this act shall not affect any act done, or any right accruing or accrued or any suit or proceeding had or commenced in any civil cause before the said repeal or modifications; but all rights and liabilities under said laws shall continue and may be enforced in the same manner as if said repeal or modifications had not been made. * * * ”

Section 10 of the act of March 8, 1883 (22 Stat. 525), to which reference will be made, reads as follows:

“That 'all imported goods, wares, and merchandise which may be in the public stores or bonded warehouses on the day and year when this act shall go into effect, except as otherwise provided in this act, shall be subjected to no other duty upon the entry thereof for consumption than if the same were imported respectively after that day; and all goods, wares, and merchandise remaining in bonded warehouses on the day and year this act shall take effect, and upon which the duties shall have been paid, shall be entitled to a refund of the difference between the amount of duties paid and the amount of duties said goods, wares, and merchandise 'would be subject to if the same were imported respectively after that date.”