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Part IV–Digest of Opinions Construing the Repeal

Provisions of the Revised Statutes

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SEC. 5595. The foregoing seventy-three titles embrace the statutes of the United States general and permanent in their nature, in force on the 1st day of December one thousand eight hundred and seventythree, as revised and consolidated by commissioners appointed under an act of Congress, and the same shall be designated and cited as The Revised Statutes of the United States.

U.S. v. Bowen, 100 U. S. 508 Bowen, a Civil War veteran, was drawing a pension for service in the United States Army, during which certain deductions were made from his pay. On September 13, 1876, he entered the Soldiers' Home. This action was to recover the amount of the pension from the time he entered the home until he left it, December 4, 1877. Judgment was rendered in his favor in the United States Court of Claims for $264.60, and the Government appealed. The Supreme Court affirmed the judgment. The act of 1851 founding the institution provided that pensioners were entitled to the privileges of the home upon transferring their pension for the period they were in it to the Soldiers' Home; and the act of 1859 changing the name to the “Soldiers' Home” provided for such transfer. R. S. 4820 provided: “* the fact that one to whom a pension has been granted for wounds or disability received in the military service, has not contributed to the funds of the Soldiers' Home, shall not preclude him from admission thereto; but all such pensioners shall surrender their pensions to the Soldiers' Home during the time they remain therein and voluntarily receive its benefits.” It was held the word "such above quoted distinguished those who had not contributed to the funds of the Soldiers' Home from those who had so contributed. Bowen by his pay reductions while in the service had contributed to the funds of the home. Therefore, he was in the class that were not required to surrender their pensions. The court said: “The Revised Statutes must be treated as the legislative declaration of the statute law on the subjects which they embrace on the 1st day of December, 1873. When the meaning is plain the courts cannot look to the statutes which have been revised to see if Congress erred in that revision, but may do so when necessary to construe doubtful language used in expressing the meaning of Congress.” See also Deffeback v. Hawke, 115 U. S. 392, where the court said, “No reference

can be had to the original statutes to control the construction of any section of the Revised Statutes, when its meaning is plain, although in the original statutes it may have had a larger or more limited application than that given to it in the revision," citing U. S. v. Bowen, 100 U. S. 508, 513.

Dwight v. Merritt, 140 U. S. 213 Action by an importer against a collector of customs to recover alleged excess duties on a shipment of iron rails from Russia. The collector assessed a duty on the merchandise at 70 cents per hundred pounds under Schedule E, section 2504, Revised Statutes, as “iron bars for railroads or inclined planes.” The importer claimed the merchandise was dutiable at only $8 per ton under the following provision of the same schedule: “Wrought scrap iron of every description: eight dollars per ton. But nothing shall be deemed scrap iron except waste or refuse iron that has been in actual use, and is fit only to be remanufactured.” The importer paid the duty assessed under protest and brought this action to recover the difference between the amount paid and what he claimed he should have paid, or $2,880.65. The jury, under instructions from the court that the only question to be considered was whether the rails had been in actual use, found for the collector. Writ of error to the United States Supreme Court. Judgment affirmed. Before the Supreme Court the importer contended the action of the collector was illegal in assessing as "iron bars for railroads or inclined planes" old iron rails which were not adapted to any such use, but which were imported solely for remanufacture. The law as it stood prior to enactment of the Revised Statutes read: "On all iron imported in bars for railroads or inclined planes made to patterns and fitted to be laid down upon such roads or planes without

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further manufacture.” It was contended that no meaning should be attached to the Revised Statutes different from that in the tariff acts. As to this contention, the court said: “The Revised Statutes are not a mere compilation and consolidation of the laws of Congress in force on the 1st of December, 1873. The object of that revision was to simplify and bring together all statutes and parts of statutes which, from similarity of subject, ought to be brought together, to expunge redundant and obsolete enactments, and to make such alterations as might be necessary to reconcile contradictions and amend imperfections in the original text of the preexisting statutes. All those statutes were abrogated by section 5596." They may be referred to and considered in order to interpret the meaning of obscure and ambiguous phrases in any section of said revision; but no such reference is necessary or proper in order to modify, under the color of interpretation, any phrases the meaning of which is clear and free from any doubt, except what the terms of the statute invoked may suggest. “The title of the Revised Statutes headed 'Duties Upon Imports' is manifestly intended to be a complete system of tariff legislation, and to embrace and provide for every class of imported articles subject to import duties. The clause

(in Schedule E, section 2504)

is in clear, explicit and intelligible language. There is nothing in that clause or in any other clause in that section, or in any other section in that title, which renders the meaning of this particular phrase doubtful or leaves room for interpretation or the interpolation of words taken from other preceding statutes upon the subject.”

The Marine City, 6 Fed. Rep. 413 Libel in Admiralty to recover for loss of baggage against a steamship company. Defense was there was no allegation that the loss was caused by design or neglect of the company. R. S. 4282 provided no recovery could be had against owners of vessels for loss or damage to "merchandise" by fire unless such fire is caused by design or neglect of owner. The act of 1851, from which R. S. 4282 was taken, used the term "any goods or merchandise whatsoever.” The court, in determining whether baggage is merchandise within the meaning of the law said the courts could not interpolate words omitted in the revision; and that although the commissioners preparing the Revised Statutes may have thought the word “merchandise" broad enough to include “any_goods or merchandise whatsoever," it did not do so. The court said further: “That the revision ought to be construed not simply as declaring what was the law on the 1st of December 1873, but as changing the law in certain cases, was evidently the opinion of my learned predecessor in Gillet v. Pierce (Brown, Adm. 553), in which he had occasion to hold that the revision expressly gave the right of trial by jury in certain admiralty cases arising upon the Lakes, notwithstanding it had never before existed. It is true the revision was designed simply as a reenactment or codification of the whole body of the national statutory law, but if the legal effect of each section is to be determined by an examination of the original law from which such section was taken, it might as well never have been adopted. Errors and inadvertent omissions are inevitable in a codification of this extent. Many of them were corrected by the act of February 1875, and in the practical application of the revision others will undoubtedly be discovered; but the remedy is with Congress and not in subtle and forced judicial construction

U.S. v. Moore, 26 Fed. Cas. 15,804 An indictment and plea in abatement that one of the persons composing the grand jury indicting defendant was disqualified by reason of the fact that he had without duress and coercion served in the Confederate Army. The language of the section was contained in an act of 1862, which was repealed by an act of 1871, but was carried into the Revised Statutes as section 820. * Held, the juror was not disqualified. The language relied on was not the law on December 1, 1873, having been repealed. The language of this section does not enact or reenact anything as law which was not the law on the 1st day of December 1873, and the carrying into the Revised Statutes of a section of an act which had been expressly repealed prior to that date does not reenact such section.

Wade v. United States, 21 Ct. Cl. 141 This case was filed May 24, 1872, to recover the proceeds of property under the Abandoned or Captured Property Act of 1863. It was dismissed for want of prosecution May 8, 1876. It again came before the Court of Claims on motion to reinstate it for the purpose of raising on trial the question that the 2 years' limitation on filing suits in the above act was repealed by the Revised Statutes, leaving applicable thereto only the general limitation of 6 years provided for in section 1069.

It was held that R. S. 1069 could not be held to repeal the Abandoned or Captured Property Act, the provisions of that act having been carried into the Revised Statutes as section 1059. Instead of reenacting the full language, for condensation and conciseness, the Revised Statutes merely provided that the

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Court should have jurisdiction of "all claims for the proceeds of captured or abandoned property, as provided in the act of Mar. 12, 1863.' The court examined the legislative history and concluded that it was not the intention of Congress to open the jurisdictional limitation of the Abandoned or Captured Property Act by the adoption of the Revised Statutes, and stated: “Where the language of the revision is ambiguous and uncertain, arising from condensation or otherwise, the well-settled meaning, object, and policy of the preexisting laws revised and reenacted therein must be held to be continued as the true interpretation of the legislative will."

SEC. 5596. All acts of Congress passed prior to said first day of December one thousand eight hundred and seventy-three, any portion of which is embraced in any section of said revision, are hereby repealed, and the section applicable thereto shall be in force in lieu thereof; all parts of such acts not contained in such revision, having been repealed or superseded by subsequent acts, or not being general and permanent in their nature: Provided, That the incorporation into said revision of any general and permanent provision, taken from an act making appropriations, or from an act containing other provisions of a private, local, or temporary character, shall not repeal, or in any way affect any appropriation, or any provision of a private, local or temporary character, contained in any of said acts, but the same shall remain in force; and all acts of Congress passed prior to said lastnamed day no part of which are embraced in said revision, shall not be affected or changed by its enactment.

U.S. v. Claflin, et al., 25 Fed. Cas. 14,799 Action brought in the District Court for the Southern District of New York to recover a penalty of double the value of goods alleged to have been bought, concealed and illegally imported. Certain counts of the declaration were based on Section 2 of the act of March 3, 1823 (3 Stat. 781). To these defendants demurred on the ground that this section had been repealed. The court sustained the demurrer, saying: “It is quite clear that the 2d section of the act of March 3, 1823 must be regarded as having been repealed by section 5596 of the Revised Statutes (even if it had not been previously repealed), on the ground that some portion of that act is embraced in the Revised Statutes, the provisions of the first section of that act being embraced in section 3099 of the Revised Statutes, and the provisions of the 2d section of that act not being embraced in any section of the Revised Statutes. The effect of such repeal is to destroy the right of the plaintiffs to recover under said 2d section in respect of any acts done after the enactment of the Revised Statutes. Therefore, counts 7, 9, 11 and 13 of declaration No. 2 are bad.” The judgment of the District Court was affirmed by the Circuit Court for the Southern District of New York and by the United States Supreme Court, which held (97 U. S. 546) that the 2d section of the act of March 3, 1823 was repealed by the act of July 18, 1866 (14 Stat. 179).

U. S. v. Webster, 21 Fed. Rep. 187 One count of an indictment charged the defendant with unlawfully withholding from its owner a discharge paper. This count was based on the act of May 21, 1872 (c. 178, 17 Stat. 137) which consisted of one section and prescribed punishment for withholding of discharge papers and land warrants. Defendant moved the court to instruct the jury that the law on which this count was based had been repealed, contending

that R. S. 5485 embraced only the portion of the act of May 21, 1872 with respect to land warrants and that by R. S. 5596, therefore, the other portion had been repealed. The motion was denied, the court holding that the act of May 21, 1872 with respect to discharge papers was still in force notwithstanding the enactment of the Revised Statutes. The portion of the act of May 21, 1872 with respect to land warrants was repealed by section 31 of the act of March 3, 1873 (c. 234, 17 Stat. 566, 575) but the portion with respect to discharge papers was not repealed. R. S. 5485 was taken from section 31 of the act of March 3, 1873. The portion of the act of May 21, 1872 with respect to discharge papers which was in force on December 1, 1873, was not carried into the Revised Statutes. Section 5596 of the Revised Statutes provides that acts of Congress passed prior to December 1, 1873, no part of which is embraced in the Revision, shall not be affected or changed by its enactment. No part of the portion of the act of May 21, 1872, with respect to discharge papers having been embraced in the Revised Statutes, it was still in force.

SEC. 5597. The repeal of the several acts embraced in said revision, 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, but all rights and liabilities under said acts shall continue, and may be enforced in the same manner, as if said repeal had not been made; nor shall said repeal, in any manner affect the right to any office, or change the term or tenure thereof.

Bechtel v. United States, 101 U. S. 597 Suit by the United States commenced October 9, 1872, before the enactment of the Revised Statutes, against a bondsman for a manufacturer of matches who had failed to account for certain stamps. At the trial there were admitted in evidence certain transcripts, including a certificate dated October 11, 1872, pursuant to an act of March 3, 1797. It was contended by the defendant that this act had been repealed by section 5596 of the Revised Statutes. Directed verdict for the United States. Appeal to the United States Supreme Court. One ground of appeal was alleged error in admitting in evidence the certificate issued pursuant to the act of March 3, 1797. Judgment of lower court affirmed. The Supreme Court held that section 5597 saved all rights which had accrued under any act repealed by section 5596, and therefore the provisions of the act of March 3, 1797, and not the Revised Statutes, were applicable to this case.

Claflin v. Houseman, 93 U. S. 130 Action brought in May 1872 in the Supreme Court of New York by Houseman, assignee in bankruptcy of Comstock and Young against Claflin to recover $1,935.57 collected by Claflin on a judgment against the bankrupt firm in fraud of the bankrupt law. Demurrer to the jurisdiction of the court. Judgment for plaintiff and the Court of Appeals of New York affirmed the judgment. Writ of error to the United States Supreme Court. Held, an assignee in bankruptcy under the Bankrupt Act of 1867 could bring suit in State courts whenever those courts were invested with appropriate jurisdiction. Section 5597 of the Revised Statutes provided that repeal of the acts embraced in the revision should not affect any suit or proceeding had or commenced in any civil cause before repeal. The act of 1867 was controlling in this case and not the Revised Statutes.

To the same effect was

Wilson v. Goodrich, 154 U. S. 640 Error to the Superior Court of Massachusetts.

The action was begun March 18, 1872. The case comes within Claflin v. Houseman, 93 U. S. 130, holding that an assignee in bankruptcy under the Bankrupt Act of 1867 as it stood before the Revised Statutes were enacted, had authority to bring suit in State courts whenever those courts were invested with appropriate jurisdiction. Section 5597 provides that the repeal of the acts embraced in the revision should not affect any suit or proceeding had or commenced in any civil cause before repeal.

Sec. 5599. All acts of limitation, whether applicable to civil causes and proceedings, or to the prosecution of offenses, or for the recovery of penalties or forfeitures, embraced in said revision and covered by said repeal, shall not be affected thereby, but all suits, proceedings or prosecutions, whether civil or criminal, for causes arising, or acts done or committed prior to said repeal, may be commenced and prosecuted within the same time as if said repeal had not been made.

Sayles, Executor, v. Louisville City R. R. Co., 9 Fed. 512 Action to recover damages for alleged infringement of a patent right for improvement of railroad brakes. Patent issued July 6, 1852, and reissued and extended July 6, 1866, for a term of 7 years. Defendant pleaded the statute of limitations under the act of July 8, 1870, providing "All actions shall be brought during the term for which the letters patent shall be granted or extended, or within 6 years after the expiration thereof." Suit was brought June 18, 1879, within 6 years of the expiration of the extended term but not within 6 years of the expiration of the first term. Defendant has used the brakes from 1864 to 1873. Plaintiff contended that since a subsequent section of the act of 1870 provided that when an extension was granted that “thereupon the said patent shall have the same

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effect in law as though it had been originally granted for 21 years," the extension had the same effect as though the patent had been originally granted for 21 years from 1852 and that he should be allowed to recover for the 2 years 1864 to 1866, as well as for the term 1866 to 1873. The provision of the act of July 8, 1870, containing the limitation was omitted from the

Revised Statutes, and the act of 1870 was repealed by section 5596 of the Revised Statutes. Held, the statute of limitations as pleaded was a bar to recovery under the original term of the patent and recovery would be allowed only as to the extended term; that the original term and the extended term were two distinct terms. The act of 1870 was repealed by the Revised Statutes, except as to the statute of limitations contained therein as to causes of action arising thereunder. Section 5599 provided “All acts of limitation embraced in said revision and covered by said repeal shall not be affected thereby, but all

suits for causes arising, or acts done or committed, prior to said repeal may be commenced and prosecuted within the same time as if said repeal had not been made.”

Also, Hayden v. Oriental Mills, 22 Fed. 103, Circuit Court, District of Rhode Island, which was an action on a patent. The court said R. S. 5599 saved all rights the same as if suit had been commenced before the repeal of the federal statute of limitations of July 8, 1870.

Also, May v. Buchanan County, Iowa, Circuit Court for the Northern District of Iowa, 29 Fed. 469, action on patent right and statute of 6 years under act of 1870 was pleaded. Court said that as to causes of action arising after June 22, 1874, the limitation was repealed by R. S. 5596; but R. S. 5599 continued the act of 1870 in force as to all causes of action then in existence. Demurrer as to the statute of limitations was overruled.

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SEC. 5600. The arrangement and classification of the several sections of the revision have been made for the purpose of a more convenient and orderly arrangement of the same, and therefore no inference or presumption of a legislative construction is to be drawn by reason of the Title, under which any particular section is placed.

Doyle v. Wisconsin, 94 U. S. 50 The Supreme Court of Wisconsin issued a writ of mandamus to recall license issued to an insurance company. The writ was served and obeyed. Afterward a writ of error was sued out and bond given to operate as a supersedeas. The plaintiff in error contended that as a writ of error to operate as a supersedeas might issue from the Supreme Court to reexamine the judgment of the State court, a writ to carry the judgment into effect could not issue from the State court until the expiration of 10 days after the rendition of the judgment, under section 1007 of the Revised Statutes, as amended by act of February 18, 1875, which provided: “When a writ of error may be a supersedeas, execution shall not issue until the expiration of 10 days

after rendition of judgment. The writ of error was issued under section 709 of the Revised Statutes, which is in chapter 11 of title XXXIII, relating to the Judiciary. The provision that a writ of error might operate as a supersedeas, is in section 1007 of the Revised Statutes, as amended, which is in chapter 18 of the Judiciary title. One of these sections was derived from section 23 of the Judiciary Act of 1879 and the other was derived from section 25 of the same act. The change in arrangement did not prevent the court from giving effect to their location in the original act.

Hyde v. United States, 225 U. S. 347 Writ of certiorari to the D. C. Court of Appeals.

Petitioners convicted in the Supreme Court for the District of Columbia of the crime of conspiracy under section 5440 of the Revised Statutes and the conviction affirmed by the D. C. Court of Appeals. The conspiracy charged was that the petitioners conspired to obtain by fraudulent devices from the States of California and Oregon school lands lying in forest reserves, exchange them for lands of the United States open to selection, and then to sell the lands so obtained. Judgment affirmed by the Supreme Court. The main question involved was the jurisdiction of the Supreme Court of the District of Columbia. The court held that overt acts performed in one district by one of the parties who had conspired in another district in violation of R. S. 5440 give jurisdiction to the court in the district where the overt acts are performed as to all the conspirators. In the course of the opinion the court said:

“If the unlawful combination and the overt act constitute the offense, as stated in Hyde v. Shine, marking its beginning and its execution or a step to its execution, section 731 of the Revised Statutes must be applied. That section provides that 'when any offense against the Laited States is begun in one judicial district

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