44 U.S. 9
3 How. 9
11 L.Ed. 469
ANDREW ALDRIDGE AND OTHERS, PLAINTIFFS IN ERROR
NATHANIEL F. WILLIAMS.
January Term, 1845
THIS case was brought up by writ of error, from the Circuit Court of the United States for the District of Maryland, and involved the construction of the act of Congress of March 2d, 1833, commonly called the Compromise Act. Williams was the collector of the port of Baltimore, and the plaintiffs in crror were importing merchants, who sued to recover duties paid under protest.
The title of the act was 'An act to modify the act of the 14th of July, 1832, and all other acts imposing duties on imports.'
The 1st section provided that from and after the 31st of December, 1833, in all cases where duties shall exceed twenty per centum on the value thereof, one-tenth part of such excess shall be deducted; from and after the 31st of December, 1835, another tenth part; from and after the 31st of December, 1837, another tenth part; from and after the 31st of December, 1839, another tenth part; from and after the 31st of December, 1841, one-half of the residue of such excess shall be deducted; and from and after the 30th of June, 1842, the other half thereof shall be deducted.
The 2d section raised the duty upon certain woolens from five to fifty per centum.
The 3d section was as follows:
'That, until the 30th day of June, 1842, the duties imposed by existing laws, as modified by this act, shall remain and continue to be collected. And from and after the day last aforesaid, all duties upon imports shall be collected in ready money; and all credits, now allowed by law, in the payment of duties, shall be, and hereby are, abolished; and such duties shall be laid for the purpose of raising such revenue as may be necessary to an economical administration of the government; and from and after the day last aforesaid, the duties required to be paid by law on goods, wares, and merchandise, shall be assessed upon the value thereof at the port where the same shall be entered, under such regulations as may be prescribed by law.'
The 4th section exempted certain articles from duty during the interval between the 31st of December, 1833, and the 30th of June, 1842.
The 5th section exempted certain articles from duty after the 30th of June, 1842, and concluded as follows: 'And all imports on which the first section of this act may operate, and all articles now admitted to entry free from duty, or paying a less rate of duty than twenty per centum, ad valorem, before the said 30th day of June, 1842, from and after that day may be admitted to entry, subject to such duty, not exceeding twenty per centum, ad valorem, as shall be provided for by law.'
The 6th and last section was as follows:
'That so much of the act of the 14th of July, 1832, or of any other act as is inconsistent with this act, shall be, and the same is hereby repealed: Provided, That nothing herein contained shall be so construed as to prevent the passage, prior or subsequent to the said 30th day of June, 1842, of any act or acts, from time to time, that may be necessary to detect, prevent, or punish evasions of the duties on imports imposed by law, nor to prevent the passage of any act prior to the 30th day of June, 1842, in the contingency either of excess or deficiency of revenue, altering the rates of duties on articles which, by the aforesaid act of 14th of July, 1832, are subject to a less rate of duty than twenty per centum, as valorem, in such manner as not to exceed that rate, and so as to adjust the revenue to either of the said contingencies.'
The statement of facts agreed upon in the court below was as follows:—— 'In this case it is admitted that, on the 20th August, 1842, the plaintiffs in this cause imported into the port of Baltimore, from Liverpool, in England, a large quantity of goods, wares, and merchandise, and on the same day entered the same at the custom-house in the port of Baltimore; that the following is a true entry and list of said goods, their equality, character and value.
(Here followed a list of the goods, with their value, amounting to 8254 16s.)
Value at Baltimore per appraisement. $44,346 00
20 per cent.—am't duties paid collector under protest. 8,869 20
Value per invoice, £ str. 8254 16 0, or. $36,651 00
20 per cent......................... 7,330 20
Duty per home valuation............ $8,869 20
Per invoice value................... 7,330 20
'That, on their entry, the defendant exacted and required of the plaintiffs to pay, as and for duties on said goods, the sum of eight thousand eight hundred and sixty-nine dollars and two cents, which the plaintiffs first refused to pay, but not being able to get their goods without paying the same, they did pay the same under protest; that the value of the goods, by the true invoice cost, adding freight and other charges, was thirty-six thousand six hundred and fifty-one dollars, ($36,651;) that the home valuation in Baltimore, as fixed by the appraisers, was forty-four thousand three hundred and forty-six dollars, ($44,346;) that the duties upon the invoice cost and charges would have been seven thousand three hundred and thirty dollars and twenty cents ($7,330.20).
'It is further agreed, that the duties, so collected as aforesaid by the defendant, were exacted under, and in pursuance of, orders and regulations from the Treasury Department of the government of the United States, and with the approbation, and sanction, and direction of the President of the United States.
'And it is also admitted, that the amount exacted as aforesaid by defendant of plaintiffs, and by them paid him as aforesaid, was deposited by the defendant in the Marchants' Bank of Baltimore, to the credit of the Treasurer of the United States, on the 29th August, 1842.
'It is also agreed, that the court may infer, from the facts hereinbefore agreed upon, whatever a jury might infer.
'If, upon the foregoing statement of facts, the court shall be of opinion that the plaintiffs are entitled to recover the above sum of eight thousand eight hundred and sixty-nine dollars and twenty cents, ($8,869.20) or any part thereof, then judgment to be entered for the plaintiffs, for the amount so determined to be due, with interest; if they should be of opinion that the plaintiffs are not entitled to recover at all, then judgment to be entered for defendant.
'It is further agreed, that this court enter up a judgment upon the aforegoing case stated, for the defendant, and that the plaintiffs be at liberty to appeal, or prosecute a writ of error to the like effect and purport, as if the above facts were stated in a bill of exceptions, and judgment rendered upon them for the defendant.
'And it is further agreed, that either party shall be at liberty, in the Supreme Court, to raise and argue, in that court, any points or questions which, it may appear to that court, could be raised upon the aforegoing facts.
REVERDY JOHNSON, for plaintiffs,
Z. COLLINS LEE, U. S. Attorney.'
29th November, 1842.
The court below gave judgment for the defendant, and a writ of error brought the proceedings up to this court.
R. Johnson, for the plaintiffs in error.
Nelson, attorney-general, for the defendant.
R. Johnson made three points.
1. That when the duties were exacted of the plaintiff by the defendant, there was no law imposing any duties upon such an importation.
2. That if there was, there was no law authorizing their being levied on the home valuation, and that the plaintiff is entitled to recover the difference stated in the record of $1539.
3. That if such duties were in whole, or in part, exacted without law, the amount may be recovered in an action for money had and received, upon the facts of this case.
He said that the judgment below was pro forma, and the question raised by the first point was now for the first time brought before any court. The amount in all the cases is about a million and a half. Before 1842, all duties were levied upon foreign valuation. There are two constructions of the Constitution; one, that under it, there is a power to collect revenue for the sake of the revenue only; the other, for protection. The act of 1833 was a compromise between these two. Each class was supposed to surrender something. The law was intended to terminate at a certain period, viz., 30th June, 1842, and the question is, what was the condition of the revenue-system after that day. Was there any law to impose duties? We say not. From the history of the act and the act itself, we infer, that it was the intention of its framers to leave the subject wholly to Congress after 1842. The former attorney-general decided otherwise, and gave two opinions; but, upon examining them, we do not find that clearness of conviction which he always had when clearness was attainable. He evidently doubted upon the subject. The Secretary of the Treasury differed from him in opinion. The Committee of the House of Representatives reported unanimously that there was no authority to collect duties at all after the 30th of June, 1842. What is the construction of the act, taken by itself, apart from its history? The title is, 'An act to modify,' &c., showing an intention to change the entire system, and make it just what this law would leave it, as if all other acts were apecially repealed. The first two sections provide for the period anterior to June, 1842, without saying what shall be done afterwards; the third says, that, until that day, other laws, as modified by this act, shall continue in force. Congress, therefore, was not content with leaving the collection of duties as a matter of inference, but gave an explicit direction that they should be collected, showing its opinion to be that unless there was an express authority granted to the executive power to collect the modified duty, that branch of the government would not have it all. The remainder of the section applies to a time after June, 1842, and says that credits shall be abolished. But upon what is the payment to be calculated, or how much is it to be? This part of the act is silent. 'Duties shall be laid only sufficient for an economical administration of the government.' But the amount wanted from year to year can only be determined when the year comes, and could not be foreseen in 1833. There is a constant reference in the act to the discretion of future Congresses. Who was always to decide upon the amount which would be consistent with an economical administration? Not the executive, nor the judiciary, but the framers of the law well knew that Congress alone could settle the annually recurring question. What might be economy at one time, might not at another. The act says 'such duties shall be laid, &c.,' using prospective terms. Again, the phrase 'duties required to be paid by law,' implies that the law is to be passed thereafter. So, the phrase, 'shall be assessed, &c., under such regulations as may be prescribed by law.' The object of the law is quite apparent. It was to give quiet to the county for nine years, and then the government was to go on under an economical administration, the amount of expenditure being settled by the then Congress. The only mode of assessing the duties then known, was to take the foreign valuation; but frauds were practised under that method, and in order further to protect domestic industry, a home valuation was substituted. But as this would be different in the respective cities, the mode of producing uniformity was left to the legislative and not the executive power.
The 4th section enlarges the list of free articles.
The 5th provides also for free articles, and then says that 'all imports, &c., may be admitted at such duty as shall be provided for by law.' Why was that clause put in? The previous part of the law substitutes cash for credit, and home for foreign valuation. Supposing these to be positive enactments, what does the clause in question enact? No one knew better than the framers of the law that it contained nothing which could be enforced by the judiciary. But it was a time when all parties united for great objects; and though they knew that it would be idle to attempt to trammel and tie up future Congresses, yet they could chalk out a broad line, and rely upon the same patriotism which animated them, for its being followed out. The limit was, that only such an amount of revenue should be raised as was necessary for an economical administration of the government, and the duties were to be collected 'under such regulations as may be prescribed by law.' Could they suppose, when they used this language, that the regulations already existed upon the statute-book? In the latter part of this section it is said, that importations may be admitted upon such duties not exceeding twenty per cent. 'as may be provided by law.' What does the government say? That twenty per cent. must be paid, and the discretion as to a lesser amount is gone. The result of the argument will be, that the free articles must pay twenty per cent. also, because the government says this is the duty. If there was any duty at all after June, 1842, the executive must deduce his right to collect it from the 5th section, for no preceding section fixes the amount. But the 5th section includes more articles than those paying upwards of twenty per cent., and there is no process of reasoning by which one class can be taken out and the other left. How, then, are free articles to get in? The act shows that it was to be done by subsequent legislation. But if any articles can be considered as free, by the operation of the act itself, the same reading will include protected articles, and bring them in free also. The words 'as shall be provided for by law' ride over the whole section. If the attorney-general supposes that these words mean such regulations as the executive might make under prior laws, it appears to me that he confounds the mode of assessing the duty with the power to assess it. The opinion of the late attorney-general takes this ground. Suppose there was a prior law giving to the Treasury Department the power of making regulations for the collection of the tax; this only reaches one of the two things that must be done, viz., 1st, a tax is to be imposed, and, 2d, the mode of collecting it is to be pointed out. But a power to carry out the second branch of the proposition does not give to the executive an authority to name the amount of the tax nor the articles upon which it shall be levied. The imposition of a tax is a high exercise of legislative power, and Congress could not vest the executive with it. The act states twenty per cent. as a maximum, but, within that, there is a discretion to be exercised by Congress. There are three classes of articles recognised in the bill; one paying more than twenty per cent. duty, one less, and the third entirely free. Are all these to be taxed equally with twenty per cent.? If so, the language of the 1st section would have been different from what it is.
2. As to the history of the act, derived from the Journal of the Senate and Register of Debates.
The 3d section now has the 'domestic valuation under regulations to be prescribed by law.' It was so in the original bill. 9 vol. Reg. Deb. part 1, pages 711-713.
Mr. Dickinson proposed to strike out 'by law,' and insert 'the Secretary of the Treasury, with the approbation of the President.' Mr. Clay said, 'leave it to a future Congress to legislate on the subject of the amendment.' He 'doubted the constitutional power to leave it to the executive;' and again, 'he would not give them the power, for if they were opposed to protection,' &c.
The amendment was rejected by nearly an unanimous vote. This court has a right to look at the history of the bill. In the discussion of the power to create a Bank of the United States, the history of the country has constantly been referred to; and so, with regard to the power of states to make insolvent laws. If the executive had the power now contended for, it is because Congress failed to keep it away when it intended so to do. If the ground had been taken during the discussion of the bill, which is now assumed on the part of the government, would the Senate have acted as they did?
2d point. If we are not entitled to the whole, we are to the difference between the home and foreign valuation. Suppose the twenty per cent. duty is to stand; if Congress were to regulate the mode of assessment, and there is no law pointing out the manner of adopting the home valuation, the invoice must be the guide. The secretary of the Treasury issued two different regulations. 1. That the appraisers should ascertain the current market value of the articles, and charge twenty per cent. upon it. This, of course, included the first cost, duty, charges, and profit. All these enter into the cash value, and a duty upon the aggregate compelled the importer to pay a duty upon the very duty itself. 2. The Secretary directed that the amount of duty should be deducted from the aggregate, and twenty per cent. charged upon the residue. This plan might or might not have been just to the government. The Secretary seems to have found so much difficulty in supplying the want of legislation, that this court can scarcely feel itself warranted in saying that legislation existed.
3d point. It is contended by the other side, that, even allowing that this money was improperly exacted, an action for money had and received will not lie against the collector. The record says that the plaintiffs could not get their goods without paying, and did accordingly pay, under a protest. This protest was notice to the collector not to pay over to the Treasury. That he was bound to pay over, begs the whole question; because, if the government had no right to exact it, the collector was only an ordinary agent, and bound by the same rules. The suit was brought on the day after the money was paid over, and this circumstance is thought by the opposite counsel to make a difference, and to free the collector from responsibility. But if the pendency of a suit would protect the collector, the existence of a notice would do the same thing. An action for 'money had and received' is the proper one in all cases like this. If the other side are right, all that the collector has to do is to pay over the money immediately to the Treasury, and we must then fight it out with the government. But this is not the intention of the law. The moment that the collector received our money, our right of action commenced, and nothing that he can do can divest us of the right which has accrued.
Nelson, attorney-general, for defendant, made the two following points:
1. That the amount of duties an aforesaid, paid by the plaintiffs in error, upon the goods, wares, and merchandise imported by them into the port of Baltimore, was properly demanded by the defendant in error, under the provisions of the act of the 2d of March, 1833, entitled 'An act to modify the act of the 14th of July, one thousand eight hundred and thirty-two, and all other acts imposing duties on imports.'
2. That even assuming the same to have been demanded without authority of law, the action for money had and received, instituted by the plaintiffs against the defendant in error in the court below, was not maintainable.
The first proposition involves two inquiries:
1st. Whether any duties were collectable under the act of the 2d of March, 1833?
2d. If so collectable, by what rule were they to be ascertained and assessed?
1st. It is admitted that prior to the act of March, 1833, the goods in question were subject to a duty of more than twenty per cent., by virtue of the act of 14th July, 1832, to be assessed according to the rules prescribed by that act. The question then is, how far have the provisions of the act of 1832 been changed by that of 1833? All are familiar with the nature and cause of the Compromise Act. It bears upon its face marks of a friendly spirit between the advocates of two very different classes of opinions. As a statute, it is singularly constructed. It states political propositions, promises money, prohibits money, but enacts few things. But the only question before us is, to what extent has it changed the law of 1832? It consists of six sections, the 2d and 4th of which are not material to the present inquiry.
The 1st section carries out the purpose indicated in the preamble, and provides that from and after the 30th of June, 1842, a duty of twenty per cent. is to be collected upon all goods imported into the United States, and embraced within its terms. It deals only with the excess above twenty per cent., and provides for its gradual diminution; but the duty, then existing, of twenty per cent., is no where repealed. Reducing it to twenty is not repealing the twenty. The section is therefore equivalent to a fresh and positive enactment that a duty of twenty per cent. should be collected after June, 1842. But it is thought that this effect of the 1st section is controlled by the subsequent sections. Let us examine them seriatim.
The 3d contains five distinct propositions, viz.:
1. That until the 30th day of June, 1842, the duties imposed by the 1st section shall remain and continue to be collected.
2. That all duties thereafter shall be collected in ready money, and all credits abolished.
3. That all duties shall be laid for the purpose of raising revenue necessary to an economical administration of the government.
4. That a home valuation shall be adopted.
5. That the regulations for the assessment shall be provided by law.
It is said that the first of these propositions limits the duration of the act to 30th June, 1842, and then repeals it. But it is merely declaratory of the existing law, and provides that the mode and manner of collecting the duties should continue the same until June, 1842, when a new mode and manner of collection was to be pursued. It does not repeal the 1st section either expressly or by implication; because, if such had been the intention of the legislature, the expressions used would have been co-extensive with those of the 1st section; and the language of the 1st section provides for the state of things after June, 1842, whereas that of the clause which is said to repeal it, stops short at that day. Besides, the provision is merely affirmative in regard to the act of 1832, which was in its terms a perpetual act. An affirmative provision never repeals, where a permanent law is re-enacted for a time. T. Raym. 397.
2d proposition. This clause is operative by the mere force of its terms—proprio vigore. It establishes the system of cash, and abolishes credit duties, but the duties upon which it is to operate are those provided for in the 1st and 2d sections. It does not profess to change them in amount, but merely the mode in which they shall be paid; and can be read in connection with the 1st section so as to be perfectly consistent with it, except that it repeals the credit system.
3d proposition. This is a mere declaration or promise of what should be done by future legislatures—of itself inoperative. It varies no duty; abolishes none; establishes none. It therefore leaves the 1st section in full operation.
4th proposition. This establishes a principle and enacts a law, viz.: that the duty shall be calculated on the value of the goods at the place of importation, after 30th of June, 1842. Its effect is to repeal the mode of ascertainment provided in the act of 1832. It was a strong provision for the protection of home industry, and jeoparded the bill. But does it repeal the 1st section? Or does it not rather recognize the continued existence of the duties laid in that section? The duties are to be collected in cash. What duties? Not those thereafter to be laid, but those then imposed.
5th proposition. This points to the mode in which such home valuation shall be established, by directing that the 'regulations shall be prescribed by law.' It is said that the existence of these regulations is a pre-requisite to the power of collecting. Assuming this to be so, what would be the legal effect? Only to leave the duties to be ascertained as they were by the act of 1832. If this clause should become inoperative by legislative omission, it cannot repeal the other provisions of the act. This will be considered more particularly hereafter. The result is, that the third section of the act, when analyzed into its five propositions, modified the act of 1832 in but two particulars, viz.: by introducing cash duties and a home valuation.
The 4th section, as has already been stated, can have no bearing upon the question, as it is temporary in its character.
Let us proceed to the 5th section of the act. Does it repeal the 1st section? It provides only that Congress may reduce the whole duties below twenty per cent., in case there should be a redundancy of money in the treasury, or raise them to twenty upon free articles, in case there should be a deficiency. How is this inconsistent with the 1st section? It made no change in it, but only reserves a power which existed without such reservation. We must harmonize these sections, if possible. The rule which requires us to do so is so well known that it is useless to cite authorities in support of it. A reservation of power to legislate is not legislation. It would be extraordinary that in a case of mutual concession, all duties should be repealed, and the manufacturing interest left without any protection at all.
The 6th section provides 'that so much of the act of 1832, or of any other act, as is inconsistent with this act, is hereby repealed.'
The rate of duties differing from the act of 1833; the credit on duties; the duties on articles made free by the act of 1833, are inconsistent with this act, and necessarily repealed by it. But the provisions of the act which merely contemplate future legislation, and yet enact nothing in themselves, such as that 'duties shall be laid for the purpose of raising necessary revenue only;' that goods paying less than twenty per cent. ad valorem, may be admitted at such duty, not exceeding twenty per cent., as may be provided by law;' that 'the duties shall be assessed upon the value thereof at the port of entry, under such regulations as may be prescribed by law,' (under the assumption before stated,) are inconsistent with no previously existing law.
A promise to pass a law to change the rate of duty, is not inconsistent with an existing law, so as to repeal it before the promise is executed. The future legislation contemplated has not been had; the only thing done is by the act of the 11th of September, 1841, which provided that all articles imported after the 30th of September, 1841, which paid less than twenty per cent. or came free, should be subject to a duty of twenty per cent., with certain exceptions.
Let us now return to the consideration of the fourth proposition of the 3d section, respecting the home valuation, and inquire whether the power to collect duties upon it did not exist under the acts of 1832 and 1833, notwithstanding the omission of Congress to legislate as to regulations.
Omitting the qualification of the clause, was it not susceptible of execution under the act of 1832?
1. The 7th section of the act of 1832 contains a principle which is as applicable to home as to foreign valuation. It directs the actual value to be appraised by the collector, and provides for duties then or thereafter imposed. Value is what a thing is worth in the market, and the law that provides for ascertaining it by the judgment of appraisers in one place, lays down a principle by which it may be ascertained everywhere.
2. By the 15th section a rule of ascertainment is prescribed by adding insurance.
3. But supposing these sections insufficient, still the 9th section of the act vests the Secretary of the Treasury, under the direction of the President, with power to prescribe regulations, &c. Doc. 261, pp. 6, 7; Executive Doc., 27th Cong., 2d sess., vol. 5, opinion of Mr. Legar e.
But suppose that regulations by Congress were necessary, instead of being made by the Secretary. They would only be directory to govern the officers of the customs. The principle is established by the law. Regulations are not wanted to settle rights of merchants or the amount of the tax, for the amount is fixed at twenty per cent., and this court decided in Wood's case that merchants must pay the amount of duty whether the custom-house officers acted rightly or not. The record admits that twenty per cent. was fairly paid on a home valuation. A duty thus imposed by the law becomes a personal debt. 13 Pet., 493. The government could recover the amount although the officers gave up the goods without any bond; and money thus properly paid cannot be recovered back. 1 T. R., 286.
But it has been said that the statute in question may be explained by extrinsic parol evidence of the meaning of the legislature which passed it. Now I hold, 1st, That you cannot look, in interpreting an act, beyond the terms of the act itself and the particular historical circumstances out of which it grew, and, 2d, That if you can, the evidence which has been invoked proves nothing.
As to the first proposition, see Dwarris on Statutes, 48; 15 Johns. (N. Y.), 380, 395; 2 Pet., 662; 1 Kent Com., 461; Opinions of Attorneys-General, Mr. Wirt's opinion, 444, 445.
If every member of the legislature had preferred that the regulations under the act of 1832 should not have been sanctioned by that of 1833, it would not have been effective to repeal the act of 1832, unless they had expressed their wish in a legislative form. But 2d, what does the debate prove? Mr. Dickinson's proposition was to strike out the paragraph respecting a future law and insert an adoption of that of 1832. Upon what principle was it rejected? Merely because Congress intended to reserve the power instead of giving it to the executive. Even supposing that you knew the meaning of the Senate, would it follow that the House of Representatives understood the law so? At page 715, Mr. Probbins proposed an amendment, that if Congress should omit to make a regulation, the law should cease; and this was rejected. Mr. Wilkins, in his speech, said that the law was not to be expounded by the declaration of any senator.
But suppose I am wrong in all this, still I say that the collector is not personally responsible. I concede that if an agent exacts money illegally, and has notice, he is liable. But there is a distinction between voluntary and involuntary payments. 10 Pet., 137; 13 Id., 267. These cases were before the act of 1839, and under them Mr. Hoyt claimed a right to retain money in his hands to meet protests. The act of 3d March, 1839, was passed to prevent this practice, and was founded upon Mr. Grundy's opinion, reported in Opinions of Attorney-General, p. 1287. This act says that moneys paid to collectors shall not be held by them, but shall be placed to the credit of the treasurer of the United States. It contains two provisions.
1. That the collector shall pay over to the treasurer.
2. It creates a remedy for the party by authorizing the Secretary of the Treasury to draw his warrant upon the treasurer for the amount to be refunded. How can an importer, since this act, bring a personal action against the collector? This action of assumpsit is founded on an implied promise. But will the law imply a promise in the face of the act of 1839, which directs all moneys, whether received properly or improperly by the collector, to be paid immediately over to the treasurer? The case in 10 Pet., 154, sanctioned the collector's retaining money if it is paid under a protest, but this was before the act of 1839. If he had given a bond not to pay it over, the bond would have been void. If then he cannot retain the money without violating the laws, how can a promise to retain it be implied?
If an agent, acting an the execution of a duty, endorses a bill, he is not personally liable. 5 Price, 564. Nor will a suit lie against an agent who pays over. 4 Cow. (N. Y.), 456.
And a case in Wheaton carries the doctrine further still, that an officer of government is not personally responsible for torts. 3 Wheat., 246.
Johnson, in reply and conclusion.
Let us consider in the first place the point just raised, viz., that we cannot recover because the collector has paid the money over to the government. We say,
1. That there is no such general principle.
2. That the act of 1839 did not establish it.
3. That if it did, the act would be unconstitutional and void.
1. The original cases establish that where payment has been made to an agent, who has paid it over without notice, the agent is not responsible. But if there be notice, he is. 10 Pet., 154; 13 Id., 267; 3 Wheat., 246; 4 Cow. (N. Y.), 456-458; 9 Johns. (N. Y.), 201.
2. It is said, however, that the act of 1839 has changed the law in this respect. It is probable that collectors sometimes retained too much, and if so, the was right. But it only makes a rule between the government and its officer, without interfering with the rights of the merchant. The 2d section says, 'paid under protest against the rate of duty,' but does not include cases in which it is alleged that there is no duty at all. If the argument on the other side be correct, there can be no suit at all against any collector, and the President has only to instruct him to seize upon any man's goods that he chooses.
3. Would such a law be constitutional?
It is unnecessary to enlarge upon the doctrines, that the government has only limited powers, and that its fundamental principle is, that sacredness of private property, which is not to be taken without law. The true construction of the act of 1839 must be, that the Secretary of the Treasury is to draw his warrant for whatever amount may be recovered against the collector, and not, that he is vested with discretionary power whether to refund or not. It would not be justice to turn a eitizen over for redress to the very government which has injured him.
But, to pursue the argument,
1. Were we bound to pay any thing at all?
2. If so how much, on the home or foreign valuation?
The first point turns on the act of March, 1833, which it is desirable to construe by its own terms only, but if this is difficult, we have a right to resort to its history. The 1st section provides for reductions until June, 1842. After that time, was there any law for the collection of duties? We say not. Up to that day there can be no doubt of the existence of a duty, or that it was levied on the foreign valuation. It is true, that if the law had stopped there, the duty would have continued. But that is not all the law. It intended to provide also for a time subsequent to June, 1842, in some particulars, as for example, payment in ready money and a home valuation.
The 3d section says, that until June, 1842, the duties shall remain and be collected. If they could already be collected by existing laws, these words are superfluous. It must be read as if the words 'and no longer 'were inserted. After June, 1842, the act says, that only such an amount of revenue shall be raised as is necessary for an economical administration of the government. Was this a twenty per cent. duty? Who can tell? It was impossible to say, nine years in advance, what sum would be necessary. It was to be collected, too, in a different mode: a home valuation was introduced for the first time. The act of 1832 directed appraisers to ascertain the foreign valuation. It is said by the other side, that it is easy to add charges, &c., and then you ascertain the home valuation. But this is not so, because the value at home fluctuates from a variety of causes. There is a great difficulty in carrying out this principle of home valuation, because the Constitution requires duties to be uniform in all the ports. This very subject was the great objection to the Compromise Act. Ought it to have been left to the executive? It is said, that the act of 1832 had so referred it. But not so. That act only authorized the executive to guard against fraud. Knowing the difficulty of executing the duty, Congress would not have so left it. There is little or no difference between giving the executive power to impose a tax, and power to direct the mode of levying it. In fact, the Secretary of the Treasury issued three different regulations on the subject. If previous laws gave the power to the executive, why were the words inserted, 'under such regulations as may be prescribed by law.' Mr. Legar e says, it means, 'may or may not be prescribed;' and that 'may' is not imperative.
The 4th section of the act is said to have no bearing upon the present point; but I do not so consider it. It provides for free articles until June, 1842; after that time they fall back into their former class. But the section contemplates fresh legislation, when it says, that goods shall be admitted on such terms as shall be prescribed by law. Why put this in, unless it was thought that there would be no law, unless one were passed? The last part of the 3d section ought to be read as if it were part of the 1st. If you put them together the sense is clear; and their meaning is, that there is no duty after 1842, unless by the passage of another law.
What will you do with the articles enumerated in the 4th section? After 1842, they must go back to their former class. But this would interfere with the basis of the compromise. If the other side is right, these articles must be taxed again, and, not being included within the 1st section, might be taxed more than twenty per. cent. But this was not the meaning. The compromise act was more like a treaty of peace than a law; but the parties could not see as far as 1842. One thought that free trade, and the other, protection, would by that time be the settled policy of the country, and therefore both agreed in referring the whole matter to future legislation. They intended to lay down certain general rules, which they expected to have a commanding influence.
The 5th section was not in the bill when originally reported. Why was it put in? See Mr. Clay's speech, Reg. Deb., vol. 9, part 1, p. 463. The original bill provided, that after 1842, the duty should be twenty per cent.; but this was stricken out, and a clause inserted, that Congress should provide, &c. Temporary systems of legislation have often been adopted.
As to 'regulations to be prescribed by law:'—The debates show, that a proposition was distinctly made, by Mr. Dickinson, to leave them to the executive, and rejected, because it was doubted whether it was a power appropriate to the executive. The action of the 27th Congress shows its opinion. A bill passed with much unanimity to continue duties, but failed to become a law in consequence of one controverted point. But the message of the President admitted that a law was desirable. Taxation should be clearly imposed and only by law, not by the discretion of the executive.
Ought the duty to have been levied on a home valuation?—There was no law for this, even if the 1st section continued a duty of twenty per cent. It was to be carried out under regulations to be prescribed by law, and none were prescribed. The friends of protection refused to pass the law, unless a home valuation were inserted, and they were unwilling to leave the matter to the executive, because, if hostile to protection, he might destroy it. The difference in this small invoice is $15,000.
Mr. Chief Justice TANEY delivered the opinion of the court.
This suit comes before the court upon a case stated, and is brought here by writ of error from the Circuit Court for the district of Maryland.
The case in its material circumstances is this:
On the 20th of August, 1842, the plaintiffs in error imported into the port of Baltimore, from Liverpool, certain merchandise particularly set forth in the record, which, at the port of Baltimore, was of the value of $14,346, as ascertained by appraisement at the custom-house. Upon these goods the defendant in error, who was at that time the collector, acting in pursuance of orders and regulations made by the Treasury Department under the direction of the President, demanded for duties twenty per cent. upon the value so ascertained; which amount was paid by the plaintiffs in error under protest; and this action instituted against the collector for the purpose of recovering back the money. There are some other circumstances mentioned in the case stated, but in the view which the court takes of the subject it is unnecessary to recapitulate them. The judgment of the Circuit Court was in favor of the defendant.
The great question intended to be tried is, whether, under the act of Congress of March 2, 1833, the government was authorized to collect any duties upon goods imported after the 30th of June, 1842, without the aid of further legislation by Congress?
In expounding this law, the judgment of the court cannot, in any degree, be influenced by the construction placed upon it by individual members of Congress in the debate which took place on its passage, nor by the motives or reasons assigned by them for supporting or opposing amendments that were offered. The law as it passed is the will of the majority of both houses, and the only mode in which that will is spoken is in the act itself; and we must gather their intention from the language there used, comparing it, when any ambiguity exists, with the laws upon the same subject, and looking, if necessary, to the public history of the times in which it was passed.
The act in question is certainly not free from difficulty; and this difficulty arises from its peculiar character. It is commonly called the Compromise Act; and upon the face of it, it is evidence that something was intended beyond the ordinary scope of legislation. Provisions are introduced in relation to the future action of Congress upon the tariff, which can only be accounted for by regarding the act as a compromise of conflicting opinions on that subject, whereby a certain scale of duties was fixed upon and established until June 30, 1842, and certain leading principles agreed upon, by which, after that time, it was proposed to regulate the action of Congress, and the latter, as well as the former, inserted in the law in the forms of legislation. That this was the case is abundantly manifested by several clauses in the act, and particularly in the 6th and last section, which provides that nothing contained in the act shall be construed to prevent the passage, prior or subsequent to the 30th of June, 1842, of laws to prevent and punish evasions of the duties imposed by law, nor to prevent the passage of any act prior to the day last mentioned, in the contingency of either excess or deficiency of the revenue, altering the rates of duties on articles which, under the act of July 14, 1832, were subject to a less rate of duty than twenty per cent., in such manner as not to exceed that rate, and so as to adjust the revenue to either of the aforesaid contingencies. Now it is impossible to suppose that Congress could have doubted its power to repeal, or modify afterwards, the duties imposed by this act, in such manner as the public exigencies might require, or its power to pass laws to secure the collection of the revenue, and to punish any one who might attempt to evade the duties imposed by an act of Congress. If there had been nothing in this law out of the ordinary course of legislative action, it would hardly have been deemed necessary to encumber it with these reservations of power, which nobody doubted, and which Congress was continually exercising upon every other subject. These provisions strongly mark its peculiar character. And this association of positive and imperative enactments, with agreements for future action, has perhaps unavoidably occasioned some obscurity, and, as to some of the clauses, made it difficult at first sight to say whether the language was mandatory, or merely declared the principles by which it was proposed that the legislation of Congress should afterwards be governed.
Taking this view of its general character and objects, the very large sum ultimately involved in the controversy makes it the duty of the court to proceed to a closer and more careful examination of its different provisions. It is evidently supplementary to the act of July 14, 1832, and repeals only so much of that act, and of other previous acts, as are inconsistent with it. All of the duties, therefore, imposed by the act of 1832, or any other law, and all the rules and regulations provided for their collection, remain in full force, unless they are inconsistent with the act in question.
The point to be determined then is, whether, after the 30th of June, 1842, the collection of duties imposed by the act of 1832, or by any other law as modified by the act of 1833, is inconsistent with the last mentioned act. In other words, whether it repeals all previous laws imposing duties after the time above mentioned; and if it does not, whether it has failed to provide the necessary rules and regulations to enable the proper officers to collect them.
The 1st section declares that all duties above twenty per cent. ad valorem, imposed by the act of 1832, or any previous laws, shall be reduced annually, at the rate therein mentioned, until the 31st of December, 1841; and that, after that time, the one-half of the excess above twenty per cent. shall be deducted; and from and after the 30th of June, 1842, the other half shall be deducted. Here the section stops; and so far, therefore, from repealing the whole duties, it by necessary implication continues a duty of twenty per cent. after the 30th of June, 1842; for the direction to deduct the excess above that sum presupposes that a duty to that amount is imposed and to be collected. The language used is equivalent to a positive enactment, that from and after the 30th of June, 1842, the goods therein mentioned shall be charged with that duty.
The 2d section is to the same effect. For after modifying the duties imposed by the act of 1832, in regard to the articles mentioned in that section, it declares that these duties shall be liable to the same deductions as are prescribed in the 1st section that is to say, the excess over twenty per cent. remaining on the 30th of June, 1842, is to be deducted; and consequently very clearly implying that twenty per cent. is to be charged and collected after that period.
The 3d section provides that the duties imposed by existing laws, as modified by that act, shall remain and continue to be collected until the 30th of June, 1842; that after that time all duties shall be collected in ready money; and that such duties shall be laid as are necessary to an economical administration of the government, and shall be assessed upon the value of the goods at the port where they are entered, 'under such regulations as may be prescribed by law.'
The latter words of this section relate merely to the regulations by which the duties were to be collected after the time specified, and that part of the controversy will be hereafter considered. The points to which our attention is now directed is, whether, under this and the preceding acts of Congress, any duties continue to be imposed; in other words, whether they were not all repealed by this act after the 30th of June, 1842. Certainly the provision that they shall be paid in cash, and assessed upon the home valuation, is no repeal. Can the provision, that such duties should be laid, after the time above mentioned, as were necessary to an economical administration of the government, be construed to repeal all the duties existing at that time? We think not. The court are not authorized to decide upon the amount of revenue necessary to an economical administration of the government. It is a question for the legislature. And the provision in this clause of the section addresses itself to future legislative bodies, and not to the tribunals and officers whose duty it is to carry into execution the laws of Congress. And we should hardly be justified, by any rule for the judicial interpretation of statutes, in pronouncing terms like these to be an implied repeal of all duties after the time specified, when that construction would make the law inconsistent with itself, by repealing, in the 3d section, the duties it had continued in force in the 1st and 2d. On the contrary, the true judicial inference would rather seem to be, that it was supposed, at the time of the passage of the act, that the modified duties remaining imposed on the 30th of June, 1842, might produce the proper amount of revenue to be levied with a view to the economical administration of the government; but leaving it to Congress, when the time arrived, to alter and modify them in the manner and for the purposes specified in this act.
The 4th section merely provides that certain enumerated articles shall be admitted to entry free from duty from December 31st, 1833, until the 30th of June, 1842, and therefore contains nothing that can influence the decision of the court.
The 5th section declares certain articles free after the 30th of June, 1842, and then provides, that all imports on which the 1st section operates, and all articles, which were at the time of the passage of the law admitted to entry free from duty, or paying a less rate of duty than twenty per cent. ad valorem, before the 30th day of June, 1842, may be admitted to entry subject to such duty, not exceeding twenty per cent. as shall be provided for by law; and this section, as well as the third, has been much relied on in opposition to the duty claimed by the government. But is it not like the clause in the 3d, of which we have already spoken, the language of compromise and agreement, and addressed to those who should be afterwards called upon to legislate on the subject, rather than to the administrative tribunals and officers of the country? It reserves to Congress the right to reduce the duties continued by the 1st section below twenty per cent.; to impose duties on free articles, and to raise duties which were below twenty per cent. up to that amount. Yet nobody could have supposed that Congress would not have the power to do all this, if it thought proper to exercise it, without any reservation of this description. The clause obviously was not introduced to reserve power, but with a view to the manner in which it should afterwards be exercised. As a mere question of power, Congress undoubtedly had authority, after the 30th June, 1842, as well as before, to impose any duties it saw fit upon the articles referred to, or upon any other imports. And it cannot be supposed that the Congress of 1833 intended to restrict, by force of law, the rights of a future Congress. Yet if we lose sight of the compromise character of the act, and treat it as an ordinary act of legislation, we should be bound to say, from the language used, that the Congress of 1833 supposed that the modifications of the revenue made by them could not be altered by a subsequent legislature, unless the right to do so was expressly reserved. No one would think of placing such a construction upon the section in question; and the difficulty is removed when we look at it in what we doubt not is its true light, and regard it as a compromise of conflicting opinions, which it was believed would be afterwards respected, when it had thus been solemnly set forth in a law. In this view of the subject, it is not repugnant to the 1st and 2d sections, and leaves the duties retained by them in full force after the 30th of June, 1842, until they should be altered by subsequent legislation.
The 6th and last section, the contents of which have been already stated, still more clearly marks the character of the act; and upon a view of the whole law, the court are of opinion that the duties which were in force on the first of July, 1842, continued in force, until they were afterwards changed by act of Congress.
This brings us to the remaining inquiry, whether, after the 30th of June, 1842, there were any regulations in force, by which the officers of the revenue were authorized to collect the duties which had not been repealed by the act of 1833; and this question may be disposed of in a few words, as it rests altogether upon the 3d section, the material parts of which have been already stated.
Before the passage of the act of 1833, there was certainly regulations prescribed by law, abundantly sufficient for the collection of the revenue. The clause at the close of the 3d section, which directs that after the time so often referred to, the duties shall be assessed upon the value at the port where the goods are entered, 'under such regulations as may be prescribed by law,' can scarcely be considered as an implied repeal of all previous regulations; for it does not confine the regulations spoken of to such as might afterwards be enacted, but uses the ordinary legislative language appropriate to the subject, which naturally and evidently embraces all regulations lawfully existing at the time the home duties went into operation, whether made before or afterwards. They can, by no just rule of construction, be held to repeal pre-existing ones, nor to require any new legislation upon the subject, unless it should turn out that those already in force were insufficient for the purpose.
But it has been urged that this clause, taken in connection with the new rule of home valuation, then for the first time established, and to which they refer, shows that new regulations were contemplated, inasmuch as the existing legislation upon that subject had been directed altogether to the value at the place of export. This argument would undoubtedly be entitled to great weight, if the subsisting rules and regulations could not be applied to this new mode of assessing the duties. But if the regulations already in force were applicable to this new state of things, there is no reason for concluding that there was any intention to repeal them, even although it should appear that they had been framed with a view to the foreign value, and should be found more difficult of execution, and less satisfactory in the result, when applied to the value at the port of entry.
The most important regulations in relation to this part of the case are contained in the 7th, 8th and 9th sections of the act of July 14th, 1832. It is true, that these regulations point to the value of the goods at the place of export; and many of the powers particularly conferred on the appraisers would not assist them in ascertaining the value at the place of import, and could not be used for that purpose. But the substantial and manifest object of these regulations is to enable the proper officers to determine the amount, upon which the rate of impost fixed by law is chargeable; and if the place, with reference to which the valuation is to be made, is changed, it does not by any means follow, that the powers before given to the officers, and the duties imposed upon them, are not still to be exercised and performed so far as they are applicable to the new state of things. The object and intention of the valuation is still the same. It is to execute the law, and to assess and collect the duty prescribed. Thus, for example, the 7th section of the act of 1832 declares, among other things, that it shall be the duty of the appraisers, and of every person acting as such, by all reasonable ways or means in his power, to ascertain, estimate, and appraise the true and actual value of the goods, at the time purchased and the place from which they were imported. This place of valuation is afterwards changed by the act of 1833, and the duty imposed according to the value at the home port. It would be a most unreasonable interpretation of the law, to say, that the appraisers must still go through the ceremony of estimating the value at the foreign port; or, that the mere change of place repealed the authority to value at all. In both cases the only object of the appraisement is to ascertain the sum upon which the duty is to be calculated; and the value of the goods at the foreign port, or at the home port, is of no importance to the public except in so far as it fixes the sum upon which the collector is to levy the rate of duty directed by law.
The 9th section makes it the duty of the Secretary of the Treasury, under the direction of the President, from time to time to establish such rules and regulations, not inconsistent with the laws of the United States, as the President shall think proper, to secure a just, faithful, and impartial appraisal of all goods, wares, and merchandises, as aforesaid imported into the United States, and just and proper entries of such actual value thereof, and of the square yards, parcels, or other quantities, as the case may require, and of such actual value of every of them; and it is made the duty of the Secretary of the Treasury to report all such rules and regulations, with the reasons therefor, to the next session of Congress. It is very clear that any regulations within the authority thus given, are regulations prescribed by law. And although this section, as well as the others before mentioned, undoubtedly contemplated the value at the foreign port, yet when the valuation is transferred to a home port, it was still the duty of the Secretary of the Treasury to frame rules and regulations to ascertain the value upon which the law directed that the duty should be assessed. For this is the only object of the appraisement, and the only purpose for which rules and regulations are to be framed.
Indeed, when it is evident that under the act of 1833 certain duties, as therein modified, were continued after the 30th of June, 1842, it would scarcely consist with judicial duty, to give an over-technical construction to doubtful words, which would make the legislature inconsistent with itself, by imposing a duty on goods imported, and at the same time repealing all laws by which that duty could be collected. For it cannot be supposed that Congress, in one and the same law, could so have intended; and such an intention ought not to be implied, unless it was apparent from unequivocal language. We think that there are no words in the act of 1833, from which such a design can fairly be inferred.
It appears from the case stated, that the goods in question were subject to a duty of twenty per cent. under the 1st section of the last mentioned act; and that the duties in this case were assessed accordingly upon the value of the goods at the port at which they entered, as ascertained and appraised under the rules and regulations established by the Secretary of the Treasury under the direction of the President. In the opinion of the court, they were lawfully assessed and collected, and the judgment of the Circuit Court is therefore affirmed.
We forbear to express an opinion upon the construction of the act of 1839, which was argued in this case, because it is understood that other cases are standing for argument, in which that question alone is involved; and it is proper to give the parties an opportunity of being heard before the point is decided.
Mr. Justice McLEAN.
The decision of this case turns upon the construction of the act of 1833, and as I differ from the opinion of a majority of the judges, I will state, in a few words, my views upon the subject.
The 1st section of the act provides, that ten per cent. on the existing duties shall be deducted annually, until the duties shall be reduced to twenty per cent.
The 3d section declares, 'that until the 30th day of June, 1842, the duties imposed by existing laws, as modified by this act, shall remain and continue to be collected. And from and after the day last aforesaid, all duties upon imports shall be collected in ready money; and all credits now allowed by law, in the payment of duties, shall be, and are hereby abolished; and such duties shall be laid, for the purpose of raising such revenue as may be necessary to an economical administration of the government; and from and after the day last aforesaid, the duties required to be paid by law on goods, wares, and merchandise, shall be assessed upon the value thereof, at the port where the same shall be entered, under such regulations as may be provided by law.'
The above sections can scarcely be misapprehended by any one. The 1st section reduces existing duties, in a time and manner stated, to twenty per cent. And the 3d section provides, 'that until the 30th of June, 1842, the duties imposed by existing laws, as modified by that act, shall remain and continue to be collected. Now the inference is irresistible, that after the above date, the duties shall not be collected under those laws. And this is shown conclusively by the 5th section, which provides, that all imports on which the 1st section of the act may operate, and all articles then admitted to entry free from duty, or paying a less rate of duty than twenty per centum ad valorem, before the said 30th day of June, 1842, from and after that day, may be admitted to entry subject to such duty, not exceeding twenty per centum, ad valorem, as shall be provided by law.'
Now, these are not terms of compromise, but of enactment. After the day specified, the law declares, that the duties shall not exceed twenty per cent. This, like all other laws, was liable to be repealed, expressly or by implication. But it is law, until so repealed. The duties are not to exceed twenty per cent., but that does not establish them at twenty per cent.
The 6th section of the act repeals all laws inconsistent with it. The twenty per cent. duties, by this act, were to be continued only to the 30th of July, 1842. After that, by the same act, the duties were not to exceed twenty per cent. Here is no repugnancy in the law, because the one provision is to cease at the same time that the other begins to operate. It is impossible that both enactments can be in force at the same time. They are inconsistent with each other. The one provision fixes a definite amount of duties, the other an indefinite amount. Not to exceed twenty per cent., is not twenty per cent. To give effect to this provision, further legislation was necessary. But, is it the less binding on that account? Can it be disregarded on the ground that it was a mere matter of compromise? It has the form and solemnity of law, and it shows, that the act imposing duties expired on the 30th of July, 1842.
That this was the view of Congress, is manifest from the fact, that in due time they passed an act regulating the duties, to take effect from the above date, which did not receive the signature of the executive. But this is no reason why we, by construction, should continue in force a law which Congress had repealed. After the above date, such duties were to be imposed 'as shall be provided by law.' Now, this language cannot be mistaken; and it is inconsistent with the idea, that the law imposing duties prior to that date, should, after it, continue in force. Such a construction is unwarranted by the 3d section and the whole tenor of the act.
It is not for this court to determine, whether Congress, in this respect, acted wisely or unwisely; whether their motive was to compromise great and conflicting interests or not; but what have they declared to be law? It would be a restriction on the legislative power, hitherto unknown, to say, that Congress cannot repeal a law, unless they substitute another law in its place.
If the duty law in force prior to the 30th of July, 1842, be inconsistent with the provisions of the act under consideration, then the prior law is repealed. And it is no answer to this to say, that the prior law, in its modified form, is in force by virtue of the act of 1833. The plain and unequivocal enactments of that act repudiate such an inference. In its modified form, the prior law, by that act, expired in 1842. And after that, a new cnactment, in my judgment, was essential, not only to continue duties upon foreign merchandise, but also to give effect to all the important provisions of the act of 1833.
The 3d section, after July, 1842, abolishes all credits for duties, and requires them 'to be paid in ready money;' and it further provides, 'that duties shall be laid for the raising of such revenue as may be necessary to an economical administration of the government;' and that the duties 'required to be paid by law,' 'shall be assessed upon the value of the goods at the port where the same shall be entered, under such regulations as may be prescribed by law.'
Now, every one of these provisions was adopted with reference to its taking effect from, and after the 30th of July, 1842. They all belong to the same class. The credit for duties was to be then abolished, and prompt payment required. From and after that day, duties were to be laid to meet the expenditure of an economical administration of the government. And after that day, 'that duties required to be paid by law,' were to be assessed on the value of the goods at the port of entry; and this assessment is required to be made, 'under such regulations as may be prescribed by law.' These provisions cannot, by any known rule of construction, be made to refer to laws or regulations existing at the time of their enactment. They all refer to the future: to future laws, and regulations prescribed by those laws.
The existing laws made no provision to carry into effect the changes in the system, introduced by the act of 1833. Appraisers were appointed under former acts, but there was no law or regulation as to the home valuation. This was a most important matter, under the new system. And it is perceived, from the explicit provision of the act of 1833, that Congress did not intend to leave an arrangement of so much importance to the discretion of the Secretary of the Treasury or of the President. They declare, that the duties shall be assessed, 'under such regulations as may be prescribed by law.' This is not to be met by argument. It is matter of law.
No one can doubt, that laws in relation to duties, not inconsistent with the act of 1833, may be considered in giving a construction to that act. But I am yet to learn, that such laws, by any construction, can suspend or modify the positive enactments of the act of 1833. Such a power belongs not to the executive nor the judiciary, but to Congress.