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.'
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 ...