Aldridge et al. v. Williams. find that clearness of conviction which he always had wher. 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to change the entire system, and make it just what this law would leave it, as if all other acts were specially repealed.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 country 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 B Aldridge et al. v. Williams. 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 attorneygeneral 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 Aldridge et al. v. Williams. 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 Aldridge et al. v. Williams. 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 as 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 Aldridge et al. . Williams. excess above twenty per cent., and provides for its gradual dimmution; 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. Sir Thos. Raymond, 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 mère 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 jeoVOL. III.-3 B 2 |