WALLACE, Circuit Judge. The controversy is whether the plaintiffs, executors of the will of Frederick W. Brittan, by which certain legacies were created, were properly assessed for a legacy tax under the provisions of the act of Congress of June 13, 1898, c. 448, § 29, 30 Stat. 464 [U. S. Comp. St. 1901, p. 2307], as amended by the act of March 2, 1901, c. 806, § 10, 31 Stat. 946. Brittan died October 13, 1901. The court below decided that they were not, because of the repealing act of April 12, 1902, c. 500, § 8, 32 Stat. 97 [U. S. Comp. St. Supp. 1903, p. 279]. Section 29 of the act of June 13, 1898, declares that executors having in charge or trust legacies of personal property thereafter passing by will to any person "shall be and hereby are made subject to a duty or tax to be paid to the United States" at a rate varying in the degree of consanguinity between the testator and the beneficiary. Section 30, as amended by the act of March 2, 1901, declares that the tax shall be due and payable in one year after the death of the testator, and shall be a lien and charge upon the property of the decedent for 20 years, or until the same within that period shall be fully paid to and discharged by the United States, and that any executor having in charge such trust or legacy shall give notice thereof in writing to the collector within 30 days after he shall have taken charge of such trust, and, before payment to the legatee, shall pay to the collector the amount of the duty or tax assessed upon such legacy, and shall also make and render to the collector a schedule or list of the amount of such legacy, together with the amount of duty which has accrued or shall accrue thereon, and containing the names of each and every person entitled to a beneficial interest therein, together with the clear value of such interest, which schedule or list shall be by him immediately delivered and the tax thereon paid to such collector. It further provides that in case the executor shall neglect to pay the aforesaid duty or tax to the collector within the time provided, or to deliver to the collector the schedule or list, or shall deliver to the collector a false schedule of such legacies, the collector shall make out such lists and valuation as in other cases of neglect, and shall assess the duty thereon, and shall commence appropriate proceedings in some court of the United States against the person or persons having the actual or constructive custody or possession of such personal estate or any part thereof, and subject the same to be sold upon the judgment or decree of the court for the satisfaction of the tax. The act of April 12, 1902, is an act to repeal war revenue taxation. Section 7 repeals section 29 of the act of June 13, 1898, and all amendments of said section. Section 8 reads as follows: "That all taxes or duties imposed by section 29 of the act of June 13, 1898, and amendments thereof, prior to the taking effect of this act, shall be subject as to lien, charge, collection and otherwise, to the provisions of section 30 of said act of June 13, 1898, and amendments thereof, which are hereby continued in force as follows." The act, by section 9, then re-enacts section 30 of the act of 1898, as amended in 1901. Section 11 provides that the act shall take effect July 1, 1902. It was obviously the effect of the repealing act to exempt from taxation after July 1, 1902, all legacies except such as should previously have become taxable. The repeal of a statute does not affect any right which has previously accrued under it, if the remedy is preserved by the repealing act; and, when a repealing act re-enacts the provisions for enforcing the right, it does not impair the right, and it can be enforced precisely as it could have been if there had been no repeal. Steamship Co. v. Joliffe, 2 Wall. 450, 458, 17 L. Ed. 805; Wright v. Oakley, 5 Metc. (Mass.) 400, 406. When statutes are repealed by acts which substantially retain the provisions of old laws, the latter are held not to have been destroyed or interrupted in their binding force. United Hebrew Association v. Benshimol, 130 Mass. 325. The phraseology of the repealing act is happily chosen to suggest doubt as to its meaning. The tax is "imposed" by section 29 only in the sense that it is created or prescribed. That is the section which denominates the property upon which the tax is to attach, designates the person who shall be subjected to it, and establishes the rule for determining the rate and amount. Section 30 is the one which really imposes the tax, as without its provisions the provisions of section 29 would be nugatory. Without these provisions the tax would be nothing more than an inchoate right of the government. Consequently, when, in the words of the repealing act, all taxes or duties "imposed" by section 29 "prior to the taking effect of this act" are to remain unaffected by the repeal, the meaning of the word "imposed" is to be ascertained from the provisions of section 30. If, under these provisions, the tax had not been imposed at the date when the repealing act was to take effect, the plaintiffs were entitled to recover. If at that date it had been imposed, the decision below was erroneous. Nevertheless it is possible that Congress meant that the tax prescribed by section 29 was "imposed" by that section, and that any legacy passing before the repeal should remain liable, and that section 30 should continue in force for preserving the lien and enforcing payment. But Congress has not said this, and a tax is never to be exacted from a citizen by a doubtful interpretation of a taxing act. Ordinarily a tax cannot be regarded as imposed until it becomes a lien upon the property which is to be subjected to its payment. Section 30 does not in terms fix the time of the commencement of the lien, but its provisions do not necessarily import the existence of a lien prior to the time when it becomes the duty of an executor to pay the tax and render the list to the collector. We are of the opinion that this is the time when the lien first attaches, and consequently when the tax is imposed; and, however we might regard it as an original question, we are constrained to this conclusion by the decision in Mason v. Sargent, 104 U. S. 689, 26 L. Ed. 894. In that case the provisions of a statute practically identical in terms with section 30 were under consideration, and it was held that the tax did not become a lien upon the property bequeathed until the time when it became due and payable by the executor, and he was required to list the property for taxation. In the previous case of Clapp v. Mason, 94 Ū. S. 594, 24 L. Ed. 212, the statute under consideration made a succession tax a lien "from the time such tax shall become due and payable," and the question was whether previous to this time the suc cession was taxable or liable to be assessed, and the same conclusion was reached; and the court used this language: "It is manifest that the right does not accrue until the duty can be demanded; that is, when it was made payable." In both of these cases the court decided that a repeal of the taxing act, but saving its provisions for enforcing the taxes "assessed or liable to be assessed," and "the right to which has already accrued, or which may hereafter accrue," divested the government of any claim for taxes which had not become payable when the repealing act took effect. These decisions are decisive in the present case. By the original section 30 the tax did not become payable until the time of making payment and distribution to the legatees, but by the amendment of 1901 it became payable one year after the death of the testator. As one year had not elapsed since the death of the testator when the repealing act took effect, the obligation of the executor to make payment or render a list had not accrued, and no lien could attach. The judgment is affirmed. In re SEAHOLM. (Circuit Court of Appeals, First Circuit. February 16, 1905.) No. 563. 1. BANKRUPTCY-DISCHARGE OF BANKRUPT-LIMITATION OF RIGHT. Under Act Cong. Feb. 5, 1903, c. 487, § 4, 32 Stat. 797 [U. S. Comp. St. Supp. 1903, p. 411], amending section 14, subsec. "b," cl. 5, Bankr. Law July 1, 1898, c. 541, 30 Sat. 550 [U. S. Comp. St. 1901, p. 3428]. so as to authorize the discharge of a bankrupt "unless he has * in voluntary proceedings been granted a discharge in bankruptcy within six years," a bankrupt cannot procure a discharge on own own application, either in voluntary or in involuntary proceedings, where within six years he has been granted a discharge in voluntary proceedings. The words "in voluntary proceedings" refer to the proceedings in which the prior discharge was granted, and not to the proceedings in which the second discharge is sought. 2. SAME AMENDMENT TO STATUTE-RETROACTIVE OPERATION. Act Cong. Feb. 5, 1903, c. 487, § 4, 32 Stat. 797 [U. S. Comp. St. Supp. 1903, p. 411], amending section 14, subsec. "b," cl. 5, Bankr. Law July 1. 1898, c. 541, 30 Stat. 550 [U. S. Comp. St. 1901, p. 3428], so as to withhold from the bankrupt his previous existing right of discharge in cases where he has in voluntary proceedings been granted a discharge within six years, is not, as applied to a bankrupt who petitions for a discharge after the passage of the amendment, objectionable as retroactive. Petition for Revision of Proceedings of the District Court of the United States for the District of Massachusetts, in Bankruptcy. Robt. H. Benny (Stebbins, Storer & Burbank, on the brief), for petitioner. Before COLT and PUTNAM, Circuit Judges, and ALDRICH, District Judge. ALDRICH, District Judge. This appeal from the District Court of Massachusetts relates to the grounds for refusing a discharge to a bankrupt under the bankruptcy law of July 1, 1898, c. 541, 30 Stat. 550 [U. S. Comp. St. 1901, p. 3428], as amended by the act of Congress of February 5, 1903, c. 487, § 4, 32 Stat. 797 [U. S. Comp. St. Supp. 1903, p. 411], and raises the question whether the words "in voluntary proceedings," in section 14, subsec. "b," cl. 5, describe or have reference to the pending proceeding, in which the bankrupt himself stands upon his second application for a discharge, or to a previous and past proceeding, in which he has been discharged within six years. But for the ingenious and somewhat subtle contention of the appellant, the meaning of the statute in this respect would seem to be clear, as, by omitting from subsection "b" all the grounds for refusing a discharge except the one material in this case, the statute would read, "investigate the merits of the application and discharge the applicant unless he has in voluntary proceedings been granted a discharge in bankruptcy, within six years." Such a reading necessarily results, as the conjunction "or" connects the subject "he" with the verb in each of the five succeeding clauses. Each clause introduced by "or" naturally and necessarily refers itself back to the subject "he" and the verb "has," the verb "has" obviously referring to the past. The argument, however, is made that, through possible punctuation, like introducing a comma after the word "proceedings," then under reasonable construction the words "in voluntary proceedings" would have reference to the proceeding in which the second discharge is sought, rather than to the earlier proceeding, in which the discharge was granted. We do not think the statute reasonably susceptible of such a construction; and it is quite certain that, under the well-known rules governing the interpretation of statutes, such a forced construction would not be warranted unless unmistakable and efficient historical considerations make it plain that it was so intended by Congress. However, in view of the argument, which was pressed with apparent confidence, and which raises, perhaps, a possible question, we deem it not inappropriate to refer briefly to the historical causes (Sutherland on Statutory Construction, § 300; Gardner v. The Collector, 6 Wall. 499, 511, 18 L. Ed. 890) promoting legislative enlargement of the grounds for refusing a discharge to the bankrupt when it is sought upon his own application. It must be observed that the idea of placing restrictions and limitations upon the number and frequency of discharges to be granted to the bankrupt upon its own application does not involve a new philosophy, nor is it a new feature of bankruptcy legislation. In the older bankruptcy statutes, both in this country and in England, refusal of the second discharge was not, as a rule, limited to situations in which the first discharge was in a voluntary proceeding, but a discharge on a second proceeding was denied when the first discharge was in an involuntary proceeding as well. Under the English bankruptcy act of 1890, if the bankrupt has on any previous occasion been adjudged a bankrupt, the discharge is refused altogether, or suspended for a period of not less than two years, or until a dividend of not less than 10 shillings on the pound has been paid; and this restriction upon the second discharge results without regard to whether the earlier bank 136 F.-10 ruptcy involved a voluntary or an involuntary proceeding, and without regard to lapse of time between the earlier and the later proceeding. A similar feature was present in our own bankruptcy law of 1867 (Act March 2, 1867, c. 176, 14 Stat. 517), where a second discharge was only allowed when the bankrupt's estate was sufficient to pay 70 per cent.; the rigor of this restriction being qualified only by a provision which enabled three-fourths of the creditors to consent to a discharge upon payment of a less sum. The debates in Congress in connection with the proposed amendments of 1903 to the law of 1898, enlarging the grounds for withholding a discharge, show that the amendments were directed against alleged abuses, through the frequency of bankruptcy proceedings instituted by the same individual, and from repeated discharges in bankruptcy upon the application of the bankrupt, and that such ad libitum. discharges resulted from the absence of the usual restriction upon the bankrupt, which was omitted through oversight. The fifth clause of the amendments, as originally drawn and under debate in the House of Representatives, where it was attacked as oppressive to the bankrupt, was sufficiently comprehensive to direct itself against a discharge if the applicant had been granted or denied a discharge within six years in either voluntary or involuntary proceedings. It was as follows: "or (5) been granted or denied a discharge in bankruptcy within six years." The debates show that those who were against the proposed amendment, on the ground that it was oppressive, urged that a debtor ought to be discharged in an involuntary proceeding instituted by the creditors who had taken his assets, without regard to the number or the character of the previous proceedings or discharges, yet, after full debate, the amendment passed the House in its comprehensive terms, and without modification. The Senate, by amendment, modified the rigid terms of the House proposition by striking out the words "or denied," and inserting the words "in voluntary. proceedings," thus presenting to the House the present clause 5, which in two substantial respects modified the House proposition: First, by omitting the words "or denied," thus limiting its operation to cases in which a discharge has been actually granted; and, second, by inserting the words "in voluntary proceedings," which withdraws its operation from cases in which the bankrupt has been discharged in a previous involuntary proceeding. * * Under the Senate amendment, it was left that the applicant shall be discharged "unless he has * in voluntary proceedings been granted a discharge in bankruptcy within six years.' To the modified clause presented by the Senate, the House agreed, and it became a law. In view of the sweeping terms of clause 5, as originally drawn and passed by the House, and of the Senate amendment, which was merely a modification of the House policy or proposition, rather than a reversal, the conclusion is irresistible that it was not the purpose of Congress to allow a second discharge to a debtor upon his own application if the prior discharge was granted to him in a voluntary proceeding within the time limitation under which the clause operates in other words, that it was the final intention of Congress to give the bankrupt |