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therefore the Secretary is not authorized to liquidation is not confined in terms to a dif. order a reliquidation unless it appears to ference in the value of standard coins in cirhim that the pure metal in the invoice coin culation, but exists whenever there is such was worth 10 per cent more or less in Ameri- a difference in the value of the foreign moncan gold than the value proclaimed. This ey specified in the invoice. The invoice is argument is thought to derive some support required to be made out in the currency of from the history of legislation and from the the country of export or the currency achistory of the times, which latter is thought tually paid, which may not be coins at all. to show that fluctuations of silver bullion, Act of June 10, 1890 (26 Stat. at L. 131, not fluctuations of exchange values, were chap. 407, § 2, U. S. Comp. Stat. 1901, p. what Congress was likely to have had in 1886). It is true that the difference remind. It is suggested further that the gov- ferred to in the proviso is a difference from ernment reading makes the proviso revolu- the proclaimed value, and that the protionize the body of the section and the prac- claimed value has reference to standard tice of a hundred years.

coins. Whether, in view of this fact and of On the other side we start with the consid- Rev. Stat. § 2903 (U. S. Comp. Stat. 1901, eration that, to an ad valorem tax, it must p. 1922), the words would cover a difference be an object to ascertain the true value of in value between paper expressed in terms the thing taxed at the time as of which it is of current coin and current coin, if paper taxed, and that the invoice price is referred were the currency shown by the invoice or to only to that end. The history of the stat- the consul's certificate to be the currency to utes shows a series of continually closer ap- which the invoice referred, need not be conproximations to it, and to our mind helps sidered. That question did not arise in the contention of the government, not that Cramer v. Arthur, 102 U. S. 612, 26 L. ed. of the other side. The statutes began by fix- 259. However that may be, suppose that ing the rates for specified coins absolutely. the currency mentioned in the invoice, alThen in 1873, they provided in the language though coined, was a token currency having of the first part of $ 25, quoted above, for by legislative fiat the value of a fraction of an annual estimate by the Director of the some current coin of universal worth, but itMint, and a proclamation. Act of March 3, self having no such worth derived from the 1873 (17 Stat. at L. 602, chap. 268, Rev. Stat. metal it contained. Such a token might § 3564, U. S. Comp. Stat. 1901, p. 2428). In vary in value much below or above the frac1890 the estimate was required to be quarter. tion of the coin by which it purported to be ly, instead of for the year. Act of October 1, measured. Suppose that the value of the 1890 (26 Stat. at L. 567, 624, chap. 1244, s latter coin only had been proclaimed. It 52). Finally, on August 27, 1894, the statute would be going far to say that the Secrereceived its present form, with the proviso tary could not order a reliquidation upon a from which the Secretary derives his clear- variance of more than 10 per cent between est grant of power. The general purpose of the value of the token currency in the inthis proviso undeniably is to secure a closer voice and the proclaimed value of the govapproximation still. In construing it we erning coin. must bear this obvious purpose in mind. The case last put is the case at bar, exWhile no doubt the grammatical and logical cept that it is not admitted that the rupee scope of a proviso is confined to the subject- was technically a mere token, and that the matter of the principal clause, we cannot for value of the rupee itself had been proget that in practice no such limit is ob-claimed, subject to a note_"value of the ruserved, and when, as here, we are dealing pee to be determined by consular certifiwith an addition made in new circumstancescate." At that time, although it was not to a form of words adopted many years be noted until a little later in the year by the fore, the general purpose is a more important Director of the Mint, India was on a gold aid to the meaning than any rule which basis. As the rupee had a legally fixed ragrammar or formal logic may lay down. tio to another coin also valued by the DiGeorgia K. & Bkg. Co. v. Smith, 128 U. S. rector,-the gold pound,-it is plain that 174, 181, 32 L. ed. 377, 380, 9 Sup. Ct. Rep.47. the value of the rupee as so much silver and

If the proviso were a separate subsequent its value as a fraction of a pound might act we should note that the case in which fall apart, and yet both be given by the Di. the Secretary is authorized to order a re- rector's tables. It would be giving a very claimed shall be followed in estimating te value entry at a different value, whenever satisfactory of all foreign merchandise exported to the Unit- evidence shall be produced to him showing that ed States during the quarter for which the value the value in United States currency of the foris proclaimed, and the date of the consular cer- eign money specified in the invoice was, at the tification of any invoice shall, for the purposes date of certification, at least ten per centum of this section, be considered the date of expor- more or less than the value proclaimed during tation : Provided, That the Secretary of the the quarter in which the consuiar certification Treasury may order tbe reliquidation of any 'occurred.”

literal construction to the body of g 25 to been printed in 1893. This report recomsay that it forbade the Secretary to take the mended the closing of the mints against the fraction of the pound rather than the sil- free coinage of silver, and predicted as a ver bullion as the measure of the value of consequence the divergence between the ingoods, if the former represented the unit of trinsic value of the rupee and the value of actual cost. But, supposing that the frac- its ratio to the pound as fixed, taken hypotion of the pound was the unit of cost, it thetically as 1 shilling and 4 pence. It seems to us that at least under the proviso, contemplated even a raising of the ratio if not under the body of the section, the Sec- as possible. The report was followed by the retary could order a reliquidation on the closing of the mints in the same year, and basis of the units actually used. It would the result predicted came to pass. However be simply a correction in conformity with small may have been the imports from Inthe truth and the actual meaning of the dia in 1894, the fact predicted by the Herwords of the invoice. The other argument schell report was one of the most striking for the conclusiveness of the Secretary's ac- incidents in the recent financial history of tion, to which we referred at the outset, the world, and we cannot suppose that it was that, for all that appears, this may was not considered when the proviso was have been what happened. The gold which passed. Before the date of this export gold the rupee represents is 1 shilling and 4 was adopted as the standard, and the ratio pence, or about 32 cents. But, as in this of the rupee fixed at 15 to 1, or 1 shilling case the exchange value and the value as and 4 pence, in 1899. The exchange value a fraction of a pound were the same, it did not change very much, remaining at near does not matter to our decision whether we the conventional ratio, but the decline in say that in such circumstances the action bullion made the divergence referred to more of the Secretary was conclusive or say that marked. It was objected that some of the it was right.

facts which we have mentioned were not We have shown that, in our opinion, the proved in the case, but they are public facts, proviso, if not the body of § 25, would have and when we are asked to declare that the warranted the action of the Secretary if it Secretary exceeded his powers we have to had been a later independent statute. We consider what might have been before his are of opinion that it is not to be con- mind. strued differently because of its form. In As we have said, it would be only by a addition to the considerations which we have very literal construction of the earlier part mentioned, we are confirmed in our view of g 25 that the collectors would be bound by the facts which were known at the time. to estimate the value of a cargo invoiced It is true that the most conspicuous recent in rupees by the bullion of the rupee when, event was the fluctuation in the value of in the invoice, rupee meant a certain fracsilver. But the movement of silver, espe- tion of a pound. But, however that may cially after the repeal of the Sherman act, be, we are of opinion that when the Secreon November 1, 1893 (28 Stat. at L. 4, chap. tary has satisfactory evidence of that state 8, U. S. Comp. Stat. 1901, p. 2355), had been of facts, under the proviso he is authorized downward, and the proviso contemplated at to order a reliquidation in order to make least equally a possible rise in the foreign the value in United States currency cormoney with which it dealt. On the other respond with the actual value of the goods. hand, there was before Congress the Her. It is not necessary to consider any wider schell report on the coinage of silver in problems as to the power of the Secretary. India, of which six thousand copies had We confine our decision to the particular been ordered to be printed by a resolve of case. the Senate, concurred in by the House (28 Decree reversed. Stat. at L. Appx. p. 5), and which had

(197 U. S. 154) ADOLPHUS F. MCCLAINE, Plff. in Err., 1 suit. The present action was then brought

on the assessment, August 15, 1899, and GEORGE C. RANKIN, as Receiver of the McClaine set up the statute of limitations

First National Bank of South Bend, by demurrer, which the circuit court susWashington.

tained, and dismissed the action. 98 Fed.

378. The cause was taken to the circuit Limitation of actions-enforcement of stat-court of appeals, and the judgment of the

utory liability of shareholders in nation- circuit court reversed. 45 C. C. A. 631, 106 al banks.

Fed. 791.

The case having been remanded, the cirThe personal liability of shareholders in a na-cuit court overruled the demurrer, McClaine

tional bank, under U. S. Rev. Stat. § 5151 answered, and a trial was had, resulting (U. S. Comp. Stat. 1901, p. 3465), for the in judgment for the receiver, which was contracts, debts, and engagements of the bank, cannot be regarded as a contract lia- affirmed by the circuit court of appeals. bility, for the purpose of making applicable 56 C. C. A. 160, 119 Fed. 110. This writ the limitation prescribed by Ball. (Wash.) of error was then brought. Code, $ 4800, subd. 3, for an "action upon

The following are sections of the stata contract or liability, express or implied, utes of Washington in relation to limitawhich is not in writing, and does not arise out of any written instrument." **

tions, as found in Ballinger's Code:

“4796. Actions can only be commenced (No. 58.]

within the periods herein prescribed after

the cause of action shall have accrued, exArgued November 10, 1904. Decided March cept when in special cases, a different limi6, 1905.

tation is prescribed by statute; but the ob

jection that the action was not commenced N ERROR to the United States Circuit within the time limited can only be taken

Court of Appeals for the Ninth Circuit by answer or demurrer. to review a judgment affirming, on a second "S 4797. The period prescribed in the writ of error, a judgment of the Circuit preceding section for the commencement of Court for the District of Washington, over-actions shall be as follows: ruling a demurrer setting up the statute "§ 4798. Within six years: 1. An action of limitations in an action to enforce the upon a judgment or decree of any court of statutory liability of a shareholder in a na- the United States, or of any state or tertional bank. Judgments of both courts re- ritory within the United States. versed, and cause remanded to the Circuit “2. An action upon a contract in writCourt, with directions to sustain the de-ing, or liability, express or implied, arismurrer, and enter judgment for defendant. ing out of a written agreement.

See same case below, 56 C. C. A. 160, 119 “3. An action for the rents and profits Fed. 110.

or for the use and occupation of real es

tate." Statement by Mr. Chief Justice Fuller:

“Ş 4800. Within three years :

1. An acThe First National Bank of South Bend, tion for waste or trespass upon real propWashington, became insolvent and was

erty. closed August 10, 1895, and on the seven

“2. An action for taking, detaining, or teenth day of the same month one Heim was appointed receiver, who was succeeded injuring personal property, including an acby Aldrich, and Aldrich by George C. Ran- tion for the specific recovery thereof, or

for any other injury to the person or rights kin.

August 17, 1896, the acting Comptroller of another not hereinafter enumerated. of the Currency levied an assessment against

"3. An action upon a contract or liathe shareholders of the bank in enforcement bility, express or implied, which is not of their statutory liability. Adolphus F. in writing and does not arise out of any McClaine was one of the stockholders, was

written instrument. notified of the levy, and demand was duly

“4. An action for relief upon the ground made of him to pay the assessment on or of fraud, the cause of action in such case before September 17, 1896, and shortly not to be deemed to have accrued until the thereafter an action was commenced against discovery by the aggrieved party of the him by the receiver to recover the same. facts constituting the fraud. Pending the action, efforts to settle the “5. An action against a sheriff, coroner, claim were made. Subsequently, the ac- or constable upon a liability incurred by the tion was dismissed. Thereupon the receiv- doing of an act in his official capacity, er brought an action against McClaine upon and by virtue of his office, or by the omisan alleged contract of compromise, which sion of an official duty, including the nonwent to trial, and the receiver took a non-payment of money collected upon an execu

*Ed. Note. For cases in point, see vol. 33, Cent. Dig. Limitation of Actions, & 97.

ror.

tion; but this subdivision shall not apply tions to enforce liabilities, we think that to action for an escape.

this cannot be so, and, indeed, the subdi“6. An action upon a statute for penalty vision has been construed by the supreme or forfeiture, where an action is given to the court of Washington as applicable only to party aggrieved, or to such party and the contracts. Suter v. Wenatchee Water Power state, except when the statute imposing it Co. 35 Wash. 1, 76 Pac. 298; Sargent V. prescribed a different penalty [limitation). Tacoma, 10 Wash. 212, 38 Pac. 1048. The

7. An action for seduction and breach circuit court was of that opinion when the of promise of marriage.”

case was originally disposed of, and held "§ 4805. An action for relief, not here that the cause of action arose by force of inbefore provided for, shall be commenced the statute, and did not spring from conwithin two years after the cause of action tract. 98 Fed. 378. But that judgment shall have accrued."

was reversed by the circuit court of ap

peals on the ground that the liability was Mr. T. O. Abbott for plaintiff in er- not only statutory, but contractual as well,

and that the limitation of three years apJír. Francis F. Oldham for defend- plied in the latter aspect. 45 C. C. A. 631, ant in error.

106 Fed. 791. Conceding that a statutory

liability may be contractual in its nature, Mr. Chief Justice Fuller delivered the or more accurately, quasi-contractual, does opinion of the court:

it follow that an action given by statuto It is conceded that, in the absence of any should be regarded as brought on simple provision of the act of Congress creating contract, or for breach of a simple contract, the liability, fixing a limitation of time for and, therefore, as coming within the procommencing actions to enforce it, the stat- vision in question ? ute of limitations of the particular state is The national bank act provides that "the applicable. Rev. Stat. 721, U. S. Comp. shareholders of every national banking asStat. 1901, p. 581; Campbell v. Haverhill, sociation shall be held individually respon155 U. S. 610, 39 L. ed. 280, 15 Sup. Ct. sible, equally and ratably, and not one for Rep. 217. If, then, this action was barred another, for all contracts, debts, and engageby the statute of limitations of the state ments of such association, to the extent of of Washington, that ended it, and both the amount of their stock therein, at the judgments below must be reversed and the par value thereof, in addition to the amount cause remanded to the circuit court, with invested in such shares." Rev. Stat. 8 a direction that judgment be entered for 5151, U. S. Comp. Stat. 1901, p. 3465. defendant.

And under other sections the duty is Reference to the state statutes shows that imposed on the Comptroller of the Currency subd. 2 of § 4798 relates to "an action to give the creditors of an insolvent nationupon a contract in writing, or liability, al bank the benefit of the enforcement of express or implied, arising out of a writ- this personal liability, and to decide whethten agreement;" while subd. 3 of § 4800 re-er the whole, or a part, and, if only a part, lates to "an action upon a contract or lia- how much, shall be collected, he being also bility, express or implied, which is not in authorized to make more than one assesswriting, and does not arise out of any writ- ment, as circumstances may require. Kenten instrument." The one relates to con- nedy v. Gibson, 8 Wall. 498, 19 L. ed. 476; tracts or liabilities growing out of contracts Studebaker v. Perry, 184 U. S. 258, 46 L. in writing, and the other to contracts or ed. 528, 22 Sup. Ct. Rep. 463, and cases liabilities growing out of contracts not in cited. But even his decision does not dewriting. The receiver's contention is that termine the liability except as to contracts, the case falls within subd. 3 of § 4800, im- debts, and engagements of the bank lawfully posing the limitation of three years. If it incurred. Schrader v. Manufacturers' Nat. does not, it is not otherwise provided for, Bank, 133 U. S. 67, 33 L. ed. 564, 10 Sup. and falls within $ 4805, which fixes the Ct. Rep. 238. limitation at two years.

The liability is conditional, and statutes And as this action was commenced with-of limitation do not commence to run until in three years, but not within two years, after assessment has been made. McDonald after the assessment became due and pay- v. Thompson, 184 U. S. 71, 46 L. ed. 437, able, the question is whether subd. 3 of $ 22 Sup. Ct. Rep. 297. 4800 applies.

In the latter case the statute of NebrasIt is contended that the meaning of the ka provided ($ 10) that actions must be comword "liability" as used in that subdivi- menced within five years, "upon a specialsion is not restricted to contract liabilities, ty, or any agreement, contract, or promise but, reading it with subd. 2 of § 4798, and in writing, or foreign judgment;" and (8 in view of the enumeration of other ac-'11) within four years "upon a contract not in writing, express or implied; an action to recover on an assessment levied by the upon a liability created by statute other Comptroller of the Currency by virtue of than a forfeiture or penalty.”

the act of Congress, and although the shareThe action was brought on an assessment holder, in taking his shares, subjected himupon the stockholders of a national bank to self to the liability prescribed by the statthe amount of the par value of the shares, ute, the question still remains whether that and not to recover an amount unpaid on the liability constituted a contract within the original subscription, and it was held that meaning of the statute of limitations of the the five-year limitation did not apply, be state of Washington. cause the cause of action was not upon a Some statutes imposing individual liawritten contract, but that the four-year bility are merely in affirmation of the comlimitation applied, "whether the promise mon law, while others impose an individual raised by the statute was an implied con- liability other than that at common law. tract not in writing or a liability created If § 5151 had provided that subscribing to by statute,” no distinction between them as stock or taking shares of stock amounted to the limitation being made by the state to a promise directly to every creditor, then statute. And Mr. Justice Brown, speaking that liability would have been a liability by for the court, said: "Whether the promise contract. But the words of § 5151 do not raised by the statute was an implied con- mean that the stockholder promises the tract, not in writing, or a liability created creditor, as surety for the debts of the corby statute, it is immaterial to inquire. For poration, but merely impose a liability on the purposes of this case it may have been him as secondary to those debts, which debts both. The statute was the origin of both remain distinct, and to which the stockholder the right and the remedy, but the contract is not a party. The liability is a consewas the origin of the personal responsibility quence of the breach by the corporation of of the defendant. Did the statute make a its contract to pay, and is collateral and distinction between them with reference to statutory. Brown v. Eastern Slate Co. 134 the time within which an action must be Mass. 590; Platt v. Wilmot, 193 U. S. brought, it might be necessary to make a 602, 48 L. ed. 809, 24 Sup. Ct. Rep. 542. more exact definition; but, as the action In Matteson v. Dent, 176 U. S. 521, 44 L. must be brought in any case within four ed. 571, 20 Sup. Ct. Rep. 419, the stock years, it is unnecessary to go farther than still stood in the name of the decedent, and to declare what seems entirely clear to us, it was decided that the statutory liability that it is not a contract in writing within was a debt within the state law, but not the meaning of § 10 of the Nebraska act.” that it was a true contract. And it was also said: “Granting there was It is true that in particular cases the a contract with the creditors to pay a sum liability has been held to be, in its nature, equal to the value of the stock taken, in contractual, yet, it is nevertheless conditionaddition to the sum invested in the shares, al, and enforceable only according to the this was a contract created by the statute, Federal statute, independent of which the and obligatory upon the stockholders by cause of action does not exist; so that the reason of the statute existing at the time remedy at law in effect given by that statof their subscription; but it was not a con- ute is subject to the limitations imposed tract in writing within the meaning of the by the state statute on such actions. Nebraska act, since the writing--that is, Cases such as Carrol v. Green, 92 U. S. the subscription-contained reference 509, 23 L. ed. 738, and Metropolitan R. Co. whatever to the statutory obligation, and v. District of Columbia, 132 U. S. l, 33. no promise to respond beyond the amount L. ed. 231, 10 Sup. Ct. Rep. 19, are not conof the subscription. In none of the numer-trolling, for in them the right to recover ous cases upon the subject in this court is was direct and immediate, and not seconthis obligation treated as an express con- dary and contingent. In Metropolitan R. tract, but as one created by the statute and Co. v. District of Columbia, the charter implied from the express contract of the of the company provided “that the said corstockholders to take and pay for shares poration hereby created shall be bound to in the association."

keep said tracks, and for the space of 2 In the present case the limitation imposed feet beyond the outer rail thereof, and also on an action upon a statute for penalty or the space between the tracks, at all times forfeiture, where an action was given, was well paved and in good order, without exthree years (subd. 6, § 4800), and on any pense to the United States or to the city other action to enforce a statutory liability of Washington.” The declaration set out was two years, because not otherwise pro- a large amount of paving done by the city, vided for, and, therefore, the question must which it was averred should have been be met whether this is an action brought done by the company. The action was based on a contract or not. But it is an action 'on the implied obligation on the part of

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