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therefore the Secretary is not authorized to liquidation is not confined in terms to a diforder 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 Rev. Stat. § 2903 (U. S. Comp. Stat. 1901, p. 1922), the words would cover a difference in value between paper expressed in terms of current coin and current coin, if paper were the currency shown by the invoice or the consul's certificate to be the currency to which the invoice referred, need not be considered. That question did not arise in Cramer v. Arthur, 102 U. S. 612, 26 L. ed. 259. However that may be, suppose that the currency mentioned in the invoice, although coined, was a token currency having by legislative fiat the value of a fraction of some current coin of universal worth, but itself having no such worth derived from the metal it contained. Such a token might vary in value much below or above the fraction of the coin by which it purported to be measured. Suppose that the value of the latter coin only had been proclaimed. It would be going far to say that the Secretary could not order a reliquidation upon a variance of more than 10 per cent between the value of the token currency in the invoice and the proclaimed value of the governing coin.

On the other side we start with the consideration that, to an ad valorem tax, it must be an object to ascertain the true value of the thing taxed at the time as of which it is taxed, and that the invoice price is referred to only to that end. The history of the statutes shows a series of continually closer approximations to it, and to our mind helps the contention of the government, not that of the other side. The statutes began by fixing the rates for specified coins absolutely. Then in 1873, they provided in the language of the first part of § 25, quoted above, for an annual estimate by the Director of the Mint, and a proclamation. Act of March 3, 1873 (17 Stat. at L. 602, chap. 268, Rev. Stat. § 3564, U. S. Comp. Stat. 1901, p. 2428). In 1890 the estimate was required to be quarterly, instead of for the year. Act of October 1, 1890 (26 Stat. at L. 567, 624, chap. 1244, § 52). Finally, on August 27, 1894, the statute received its present form, with the proviso from which the Secretary derives his clearest grant of power. The general purpose of this proviso undeniably is to secure a closer approximation still. In construing it we must bear this obvious purpose in mind. While no doubt the grammatical and logical scope of a proviso is confined to the subjectmatter of the principal clause, we cannot forget that in practice no such limit is observed, and when, as here, we are dealing with an addition made in new circumstances to a form of words adopted many years before, the general purpose is a more important aid to the meaning than any rule which grammar or formal logic may lay down. Georgia K. & Bkg. Co. v. Smith, 128 U. S. 174, 181, 32 L. ed. 377, 380, 9 Sup. Ct. Rep. 47. If the proviso were a separate subsequent act we should note that the case in which the Secretary is authorized to order a re-rector's tables. It would be giving a very

claimed shall be followed in estimating the value | of all foreign merchandise exported to the United States during the quarter for which the value is proclaimed, and the date of the consular certification of any invoice shall, for the purposes of this section, be considered the date of exportation: Provided, That the Secretary of the Treasury may order the reliquidation of any

The case last put is the case at bar, except that it is not admitted that the rupee was technically a mere token, and that the value of the rupee itself had been proclaimed, subject to a note-"value of the rupee to be determined by consular certificate." At that time, although it was not noted until a little later in the year by the Director of the Mint, India was on a gold basis. As the rupee had a legally fixed ratio to another coin also valued by the Director, the gold pound,-it is plain that the value of the rupee as so much silver and its value as a fraction of a pound might fall apart, and yet both be given by the Di

entry at a different value, whenever satisfactory evidence shall be produced to him showing that the value in United States currency of the foreign money specified in the invoice was, at the date of certification, at least ten per centum more or less than the value proclaimed during the quarter in which the consular certification occurred."

literal construction to the body of § 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 seems to us that at least under the proviso, if not under the body of the section, the Secretary could order a reliquidation on the basis of the units actually used. It would be simply a correction in conformity with the truth and the actual meaning of the words of the invoice. The other argument for the conclusiveness of the Secretary's action, to which we referred at the outset, was that, for all that appears, this may have been what happened. The gold which the rupee represents is 1 shilling and 4 pence, or about 32 cents. But, as in this case the exchange value and the value as a fraction of a pound were the same, it does not matter to our decision whether we say that in such circumstances the action of the Secretary was conclusive or say that it was right.

thetically as 1 shilling and 4 pence. It contemplated even a raising of the ratio as possible. The report was followed by the closing of the mints in the same year, and the result predicted came to pass. However small may have been the imports from India in 1894, the fact predicted by the Herschell report was one of the most striking incidents in the recent financial history of the world, and we cannot suppose that it was not considered when the proviso was passed. Before the date of this export gold was adopted as the standard, and the ratio of the rupee fixed at 15 to 1, or 1 shilling and 4 pence, in 1899. The exchange value did not change very much, remaining at near the conventional ratio, but the decline in bullion made the divergence referred to more marked. It was objected that some of the facts which we have mentioned were not proved in the case, but they are public facts, and when we are asked to declare that the Secretary exceeded his powers we have to consider what might have been before his

We have shown that, in our opinion, the proviso, if not the body of § 25, would have warranted the action of the Secretary if it had been a later independent statute. We are of opinion that it is not to be con- | mind. strued differently because of its form. In addition to the considerations which we have mentioned, we are confirmed in our view by the facts which were known at the time. It is true that the most conspicuous recent event was the fluctuation in the value of silver. But the movement of silver, especially after the repeal of the Sherman act, on November 1, 1893 (28 Stat. at L. 4, chap. 8, U. S. Comp. Stat. 1901, p. 2355), had been downward, and the proviso contemplated at least equally a possible rise in the foreign money with which it dealt. On the other hand, there was before Congress the Herschell report on the coinage of silver in India, of which six thousand copies had been ordered to be printed by a resolve of the Senate, concurred in by the House (28 Stat. at L. Appx. p. 5), and which had

As we have said, it would be only by a very literal construction of the earlier part of § 25 that the collectors would be bound to estimate the value of a cargo invoiced in rupees by the bullion of the rupee when, in the invoice, rupee meant a certain fraction of a pound. But, however that may be, we are of opinion that when the Secretary has satisfactory evidence of that state of facts, under the proviso he is authorized to order a reliquidation in order to make the value in United States currency correspond with the actual value of the goods. It is not necessary to consider any wider problems as to the power of the Secretary. We confine our decision to the particular case.

Decree reversed.

ADOLPHUS F. MCCLAINE, Plff. in Err., | suit. The present action was then brought

(197 U. S. 154)

v.

GEORGE C. RANKIN, as Receiver of the
First National Bank of South Bend,
Washington.

Limitation of actions-enforcement of stat-
utory liability of shareholders in nation-
al banks.

The personal liability of shareholders in a national bank, under U. S. Rev. Stat. § 5151 (U. S. Comp. Stat. 1901, p. 3465), for the bank, cannot be regarded as a contract liability, for the purpose of making applicable the limitation prescribed by Ball. (Wash.) Code, § 4800, subd. 3, for an "action upon a contract or liability, express or implied, which is not in writing, and does not arise out of any written instrument." *

contracts, debts, and engagements of the

[No. 58.]

on the assessment, August 15, 1899, and McClaine set up the statute of limitations by demurrer, which the circuit court sustained, and dismissed the action. 98 Fed. 378. The cause was taken to the circuit court of appeals, and the judgment of the circuit court reversed. 45 C. C. A. 631, 106

Fed. 791.

The case having been remanded, the circuit court overruled the demurrer, McClaine answered, and a trial was had, resulting in judgment for the receiver, which was affirmed by the circuit court of appeals. 56 C. C. A. 160, 119 Fed. 110. This writ of error was then brought.

The following are sections of the statutes of Washington in relation to limitations, as found in Ballinger's Code:

"§ 4796. Actions can only be commenced within the periods herein prescribed after the cause of action shall have accrued, ex

Argued November 10, 1904. Decided March cept when in special cases, a different limi

IN

6, 1905.

N ERROR to the United States Circuit Court of Appeals for the Ninth Circuit to review a judgment affirming, on a second writ of error, a judgment of the Circuit Court for the District of Washington, overruling a demurrer setting up the statute of limitations in an action to enforce the statutory liability of a shareholder in a national bank. Judgments of both courts reversed, and cause remanded to the Circuit Court, with directions to sustain the demurrer, and enter judgment for defendant. See same case below, 56 C. C. A. 160, 119 Fed. 110.

Statement by Mr. Chief Justice Fuller: The First National Bank of South Bend, Washington, became insolvent and was closed August 10, 1895, and on the seventeenth day of the same month one Heim was appointed receiver, who was succeeded by Aldrich, and Aldrich by George C. Ran

kin.

August 17, 1896, the acting Comptroller of the Currency levied an assessment against the shareholders of the bank in enforcement of their statutory liability. Adolphus F.

tation is prescribed by statute; but the objection that the action was not commenced within the time limited can only be taken by answer or demurrer.

"§ 4797. The period prescribed in the preceding section for the commencement of actions shall be as follows:

"§ 4798. Within six years: 1. An action upon a judgment or decree of any court of the United States, or of any state or territory within the United States.

"2. An action upon a contract in writing, or liability, express or implied, arising out of a written agreement.

"3. An action for the rents and profits or for the use and occupation of real estate."

"§ 4800. Within three years: 1. An action for waste or trespass upon real property.

"2. An action for taking, detaining, or injuring personal property, including an action for the specific recovery thereof, or for any other injury to the person or rights of another not hereinafter enumerated.

"3. An action upon a contract or liability, express or implied, which is not in writing and does not arise out of any

written instrument.

"4. An action for relief upon the ground of fraud, the cause of action in such case not to be deemed to have accrued until the discovery by the aggrieved party of the facts constituting the fraud.

McClaine was one of the stockholders, was notified of the levy, and demand was duly made of him to pay the assessment on or before September 17, 1896, and shortly thereafter an action was commenced against him by the receiver to recover the same. 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 omis an 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.

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

"6. An action upon a statute for penalty or forfeiture, where an action is given to the party aggrieved, or to such party and the state, except when the statute imposing it prescribed a different penalty [limitation]. "7. An action for seduction and breach of promise of marriage."

"§ 4805. An action for relief, not hereinbefore provided for, shall be commenced within two years after the cause of action shall have accrued."

this cannot be so, and, indeed, the subdivision has been construed by the supreme court of Washington as applicable only to contracts. Suter v. Wenatchee Water Power Co. 35 Wash. 1, 76 Pac. 298; Sargent v. Tacoma, 10 Wash. 212, 38 Pac. 1048. The circuit court was of that opinion when the case was originally disposed of, and held that the cause of action arose by force of the statute, and did not spring from contract. 98 Fed. 378. But that judgment was reversed by the circuit court of appeals on the ground that the liability was and that the limitation of three years ap

Mr. T. O. Abbott for plaintiff in er- not only statutory, but contractual as well,

ror.

Mr. 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 statute should be regarded as brought on simple contract, or for breach of a simple contract, and, therefore, as coming within the pro

The national bank act provides that "the shareholders of every national banking association shall be held individually responsible, equally and ratably, and not one for another, for all contracts, debts, and engage

It is conceded that, in the absence of any provision of the act of Congress creating the liability, fixing a limitation of time for commencing actions to enforce it, the stat-vision in question? ute of limitations of the particular state is applicable. Rev. Stat. 721, U. S. Comp. Stat. 1901, p. 581; Campbell v. Haverhill, 155 U. S. 610, 39 L. ed. 280, 15 Sup. Ct. Rep. 217. If, then, this action was barred by the statute of limitations of the statements of such association, to the extent of of Washington, that ended it, and both judgments below must be reversed and the cause remanded to the circuit court, with a direction that judgment be entered for defendant.

the amount of their stock therein, at the par value thereof, in addition to the amount invested in such shares." Rev. Stat. § 5151, U. S. Comp. Stat. 1901, p. 3465.

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 liabilities growing out of contracts not in writing. The receiver's contention is that the case falls within subd. 3 of § 4800, imposing the limitation of three years. If it does not, it is not otherwise provided for, and falls within § 4805, which fixes the limitation at two years.

And as this action was commenced within three years, but not within two years, after the assessment became due and payable, the question is whether subd. 3 of § 4800 applies.

ed. 528, 22 Sup. Ct. Rep. 463, and cases cited. But even his decision does not determine the liability except as to contracts, debts, and engagements of the bank lawfully incurred. Schrader v. Manufacturers' Nat. Bank, 133 U. S. 67, 33 L. ed. 564, 10 Sup. Ct. Rep. 238.

The liability is conditional, and statutes of limitation do not commence to run until after assessment has been made. McDonald v. Thompson, 184 U. S. 71, 46 L. ed. 437, 22 Sup. Ct. Rep. 297.

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 (§ in view of the enumeration of other ac-11) within four years "upon a contract not

in writing, express or implied; an action upon a liability created by statute other than a forfeiture or penalty."

to recover on an assessment levied by the Comptroller of the Currency by virtue of the act of Congress, and although the shareholder, in taking his shares, subjected himself to the liability prescribed by the statute, the question still remains whether that liability constituted a contract within the meaning of the statute of limitations of the state of Washington.

Some statutes imposing individual liability are merely in affirmation of the common law, while others impose an individual liability other than that at common law. If § 5151 had provided that subscribing to stock or taking shares of stock amounted to a promise directly to every creditor, then that liability would have been a liability by contract. But the words of § 5151 do not mean that the stockholder promises the creditor, as surety for the debts of the corporation, but merely impose a liability on him as secondary to those debts, which debts remain distinct, and to which the stockholder is not a party. The liability is a consequence of the breach by the corporation of its contract to pay, and is collateral and statutory. Brown v. Eastern Slate Co. 134 Mass. 590; Platt v. Wilmot, 193 U. S. 602, 48 L. ed. 809, 24 Sup. Ct. Rep. 542. In Matteson v. Dent, 176 U. S. 521, 44 L. ed. 571, 20 Sup. Ct. Rep. 419, the stock still stood in the name of the decedent, and it was decided that the statutory liability was a debt within the state law, but not that it was a true contract.

The action was brought on an assessment upon the stockholders of a national bank to the amount of the par value of the shares, and not to recover an amount unpaid on the original subscription, and it was held that the five-year limitation did not apply, because the cause of action was not upon a written contract, but that the four-year limitation applied, "whether the promise raised by the statute was an implied contract not in writing or a liability created by statute," no distinction between them as to the limitation being made by the state statute. And Mr. Justice Brown, speaking for the court, said: "Whether the promise raised by the statute was an implied contract, not in writing, or a liability created by statute, it is immaterial to inquire. For the purposes of this case it may have been both. The statute was the origin of both the right and the remedy, but the contract was the origin of the personal responsibility of the defendant. Did the statute make a distinction between them with reference to the time within which an action must be brought, it might be necessary to make a more exact definition; but, as the action must be brought in any case within four years, it is unnecessary to go farther than to declare what seems entirely clear to us, that it is not a contract in writing within the meaning of § 10 of the Nebraska act." And it was also said: "Granting there was a contract with the creditors to pay a sum equal to the value of the stock taken, in addition to the sum invested in the shares, this was a contract created by the statute, and obligatory upon the stockholders by reason of the statute existing at the time of their subscription; but it was not a contract in writing within the meaning of the Nebraska act, since the writing-that is, Cases such as Carrol v. Green, 92 U. S. the subscription-contained no reference 509, 23 L. ed. 738, and Metropolitan R. Co. whatever to the statutory obligation, and v. District of Columbia, 132 U. S. 1, 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 numerous cases upon the subject in this court is this obligation treated as an express contract, but as one created by the statute and implied from the express contract of the stockholders to take and pay for shares in the association."

In the present case the limitation imposed on an action upon a statute for penalty or forfeiture, where an action was given, was three years (subd. 6, § 4800), and on any other action to enforce a statutory liability was two years, because not otherwise provided for, and, therefore, the question must be met whether this is an action brought on a contract or not. But it is an action

It is true that in particular cases the liability has been held to be, in its nature, contractual, yet, it is nevertheless conditional, and enforceable only according to the Federal statute, independent of which the cause of action does not exist; so that the remedy at law in effect given by that statute is subject to the limitations imposed by the state statute on such actions.

trolling, for in them the right to recover was direct and immediate, and not secondary and contingent. In Metropolitan R. Co. v. District of Columbia, the charter of the company provided "that the said corporation hereby created shall be bound to keep said tracks, and for the space of 2 feet beyond the outer rail thereof, and also the space between the tracks, at all times well paved and in good order, without expense to the United States or to the city of Washington." The declaration set out a large amount of paving done by the city, which it was averred should have been done by the company. The action was based on the implied obligation on the part of

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