Charlson Realty Company v. The United States

*449 NICHOLS, Judge

(concurring):

I agree with the commissioner (his Finding 73) 1 that this petition in cold fact arrived on December 7. Arrival on or before December 6 appears to me to be to all intents not a presumption merely, but a legal fiction. We know that as a practical matter sealed envelopes deposited with the United States Post Office, duly addressed and stamped, do not in this year of grace 1967 — and did not in 1962 — arrive with any such certainty and regularity as to justify the phrase “due course of mails” as a measure of time. The date of mailing no longer warrants any presumption whatever as to date of delivery. On the other hand, this court had in effect in 1962 procedures that seem to me adequate to assure that a packet arriving on or before December 6, would have been date-stamped on or before December 6, especially when it was no higher class than ordinary first-class mail, which was never delivered later in the day than 4:15 p. m. (Commissioner’s Finding 55-f).1

The main thing the cases cited by the court tell me is that, in the circumstances here involved, courts have generally — and wisely — managed to avoid denying petitioners their day in court. “[I]f extreme hardship will result from a literal application of the words, this may be taken as evidence that the legislature did not use them literally.” Ballou v. Kemp, 68 App.D.C. 7 , 92 F.2d 556, 558 (1937). Presumptions or fictions serve well enough for a while, but we must avoid mistaking them for reality. I hope the splendid staff of this court does not believe that we really think them as inefficient and ineffectual as our chosen ratio decidendi obliges us to “presume.”

We have a statute to interpret, and our touchstone must be the intent of Congress. I take it the real reason for erecting this presumption, and making it irrebuttable by such strong and convincing evidence, is that it is difficult to impute to Congress an intent to forfeit the plaintiff’s chose in action in the circumstances here involved. I too, share that difficulty. I have always believed that our Congress normally intends its enactments, when apparently draconian in phraseology, to be mitigated by judicial and executive interpretation whenever the language comes into play in unforeseen situations, where absurd, harsh, or inequitable results, such as are wholly outside the apparent purpose of the legislation, would flow from a strictly literal interpretation. Laws put forth more than words; they have ends to achieve, and it is in this connection that Mr. Justice Holmes said, “words are flexible.” International Stevedoring Co. v. Haverty, 272 U.S. 50, 52 , 47 S.Ct. 19 , 71 L.Ed. 157 (1926).

The classic case I believe still is Rector, etc., of Church of the Holy Trinity v. United States, 143 U.S. 457 , 12 S.Ct. 511 , 36 L.Ed. 226 (1892), holding that a statutory penalty against prepaying the transportation costs of an alien entering the United States, under a contract for the performance of labor or services by him, did not apply to the plaintiff church’s arrangement to obtain the spiritual guidance of an English minister. The court said (at p. 460, 12 S.Ct. at p. 512 ), “The object designed to be reached by the act must limit and control the literal import of the terms and phrases employed.” See also Castell v. United States, 14 F.Supp. 654, 658 , 83 Ct.Cl. 222, 229 (1936). Helvering v. New York Trust Co., 292 U.S. 455, 464 , 54 S.Ct. 806 , 78 L.Ed. 1361 (1934), teaches us that like principles of construction are not excluded from the field of Federal taxation. A good case in this court is General Dynamics Corp. v. United States, 324 F.2d 971 , 163 Ct.Cl. 219 (1963). The *450 government may itself invoke such reasoning against a taxpayer: thus in Procter & Gamble Manufacturing Co. v. United States, 19 C.C.P.A. 415 , T.D. 45578 (1932), cert. denied, 287 U.S. 629 , 53 S.Ct. 82 , 77 L.Ed. 546 , a statute assessing import duties against articles “imported from any foreign country” was applied to whale oil manufactured on the high seas in a foreign flag vessel, though the oil was not “imported from any foreign country” in any accurate use of the terms.

“It is a familiar rule, that a thing may be within the letter of the statute and yet not within the statute, because not within its spirit, nor within the intention of its makers. * * * This is not the substitution of the will of the judge for that of the legislator; for frequently words of general meaning are used in a statute, words broad enough to include an act in question, and yet a consideration of the whole legislation, * * * or of the absurd results which follow from giving such broad meaning to the words, makes it unreasonable to believe that the legislator intended to include the particular act.” Rector, etc., of Church of the Holy Trinity v. United States, supra, 143 U.S. at 459 , 12 S.Ct. at 512 . Can we believe Congress intended to cut off this petition ? I cannot.

. The requirement herein, that a suit must be “begun” within two years, is not free from all ambiguity. As a matter of semantics, a person whose bullet has left his Mauser has “begun” his part in the combat. Plaintiff discharged his missile before the two year period ran out. It was thereafter in its trajectory and beyond his further control. Within the foregoing cases, it appears to me permissible to hold for the plaintiff without postulating a December 6 delivery date if the contrary result is outside the statutory scheme, as I believe it is. I suppose, of course, the Congress intended a plaintiff to forfeit his cause of action only for his own inertia, or that of his agents, not that of others outside his control. Evidently, a forfeiture without fault would do nothing to stimulate exertion on the part of plaintiffs generally. I suppose further that all legislation respecting suits against the government has as one of its objects sparing the Congress from being inundated with private bills for relief. This being so, I believe the Congressional scheme should be construed as not visualizing the rejection of a claim on jurisdictional grounds where the same grounds would not be an appealing reason for rejecting a private bill, unless, of course, such purpose has been announced too explicitly for argument.

That the Congress has corrected the ambiguity with respect to the Tax Court (see § 7502 of the Internal Revenue Code of 1954) only is not persuasive to me in the absence of any indication that the Congress knew we might refuse jurisdiction in the circumstances here involved.

I would simply hold that this suit was “begun” not later than the last day the Congress intended to require it to be “begun”, and I would do so without relying on any presumption postulating delivery “in due course of mails” at any given time.

If I am right, the inquiries conducted by the commissioner at the court’s direction dealt largely in irrelevancies. At the same time they were cruel: to the law firm involved, to the Post Office Department, and to our own staff. I regret that our handling of the Report fails to preclude another such Roman Holiday in the future.

. References are to the commissioner’s Findings in his report to the court, which are not adopted. The Findings, incorporated in Judge Skelton’s opinion, are, I presume, contra. (See his f. n. 1). For reasons I indicate later on, I am just as glad the court does not adopt the commissioner’s Findings. Suffice it to say they furnished abundant evidentiary support, in my opinion, for the commissioner’s ultimate Finding 73, whatever else may have been erroneous about them.