Andrew Aldridge and others, Plaintiffs in error, v. Nathaniel F. Williams

Andrew Aldridge and others, Plaintiffs in error, v. Nathaniel F. Williams. The act of Congress, of March 2d, 1833,. commonly called the Compromise Act, did not, prospectively, repeal all duties upon imports after the 30th of June, . 1842. Repealing only such parts of previous acts as were inconsistent with itself, it left in force, after the 30th of June. 1842, the same duties which were levied on the l'st of June, i. 12. Duties were-directed by the act of 1833 to be levied according lo ahorne valuation, “under such regulations as may he prescribed by law.” This phrase embraces all regulations lawfully existing at the time the home valuation went into operation, whether made before or after the' passige of the act of 1833. . And the regulations established in the 7th and 8th sections of the act of 1832 are sufficient for the correct performance of the duty. The regulations prescribed by the secretary of the Treasuiy, und a power given to him by the 9th section of the act of 1832, are also “regulations prescribed by law.” The court, in construing/an act, will not consider the motives, or reasons, or opinions, expressed by individual members of Congress, in debate, but Will look, if necessary, to the public history of the times in which it was passed. 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 error were importing mer chants, who sued to. ecover duties paid under protest. . The title of the act was “ An act to modify the act of the 14th of Iuly, 18-32, and all other acts imposing duties;on imports.” The l?t section provided that from and after the 31st of December, 1833,.in all cases where unties shall exceed twenty per centum on die value thereof, one-tenth part of such excess shall be deducted; from-and after the 3lst 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 thé 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 woollehs 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. 'Arid from and after the day last aforesaid, all duties upon imports shall be collected in ready irioney; • 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 p’ort whete/the sam'e shall be entered, under such regulations as maybe prescribed by law.” The 4th section exempted certain articles from duty during the iriterval between the 31st of December, 1833, and the 30thof Jurie, 1842. The 5th section exempted certain articlés 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 oft 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: u That sa much of.tha.a6t 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 Of subsequent to the said 30th day of June, 1842, of any act. pr acts, Trohi time to tiirie, that ¿nay 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 pr 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, ad valorem, in such manner, .as not to exceed that rate, and'so as to adjust jthe 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 2Qth August, 1842, the plaintiffs in this causé imported into the port of Baltimore, from Liverpool, in England, a large quantity of-goods, wares, and merchandise, and on tiie 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 quality, character, and value. ' (Here followed a list of the goods, with value, amounting to ¿68254 16s.) ■Adjustment.- Value at Baltimore per appraisement . - - - $44,346 00 20 per cent. — ain’t duties paid collector under protest. 8,869 20 Value per invoice, ¿6 str. 8254 .16-0, or - - - $36,651 00 20 per cent. - ,7,330 20 Oo 03 l-S © rt o '■§ r2 > l -=» • . . I g * g 9 . 1,5,39 00, “ That, on their entry,'the defendant' exacted.and required of the plaintiffs to pay, as- and for duties oh said goods, the sum' of eight thousand, eight hundred^ and sixty-nine dollars and wo cents, which the plaintiffs first refused to pay, but not being able o.-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 bjindred 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 ce.nts, ($7-,33Q-.20.), “ It is further agreed, that the duties, so as 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 . qf the President ofthe United States; „ . (‘And it is-also defendant of-plaintiffs, and,by them paid him. as aforesaid,- was deposited-'by the defendant in the Merchants? Bank of.Baltimore, to credit of the Treasurer'of the United States, on the ,29th August, 1842. “ It is also agreed, that thq court may before agreed upon, whatever-a jury might, infer. “If, upon the foregoing statement 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 he of opinion that.the plaintiffs are not entitled- to recover ^t all, then judgment to be entered for-defendant. uIt is further agreed, that this court enter tip a judgment upon theaforegoing case stated, for. the. defendant, and. that the plaintiffs be at.liberty to appeal, or prosecute • a writ of error to the dike 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 Supréme 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. Johnson, for- plaintiff's, Z: CqlliNS Lee> “ 29th "November, 1842. The court below gave judgment for the-defendant, and a writ of error brought (he proceedmgsup-to-this court. R.; Johnsonf for t1 .e plaintiffs ’ in. error¡ Nelson, 'attorney-general, for-the. defendant. É.. Johnson made three points.- 1. That when the duties were ..exacted of-the plaintiff hy.the defendant, there was no law imposing any. duties tipon such an importation., 2. That1 if there wás, there was no law- authorising their-being levied on-the home-valuation,-and that 'the plaintiff is entitled .to recover the difference stated in the record of $1539. 3. fhat if such duties were in whole,-or in part, exacted without law, the amount fiiay be recovered in an action-for money .had and received, upon the facts of this Gase,. ' ■ He said that the judgment below was pro Jornia, and the question raised by the first point was now for the. first -time brought before any court. , The amount in ail 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 óf the revenue only; the-, othqr,fbr protection. The act of 1.833 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-die 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 30ih of June, 1842. What is the- construction of the act, taken hy 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 law's, a§ 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 Jupe,' 1842-, and sáys 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 yéar can only be determined when the year comes, mid could not be foreseen in 1833. There is a constant reference kt 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 timé, might not at-another. The aCt says “ such duties shall be laid,.&e.,” .using prospective terms. Again/ the phrase “ duties required to be paid by law,” implies that the láw 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 quité 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 undér thát method, and. in order further .to protect domestic industry, a-home valuátion 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 th% 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 shal} be provided for law.” was that clause put in ? The nrevious 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. Rut it was' a time when all parties united for great objects; and though they knew that-it would bé 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 ' gbvernment say ? That twenty per cent, must be paid, and the discretion as to a lesser amount iS-goné. 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 thte 5th section, for no preceding section fixes the amount. But the 5th section includes moré 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 tiie . operation of the act itself, -the same reading will include, protected ¿rticles • and bring them in free-also. The words ■“ as shall be provided for by law” ride over ;the Whole section. If the -attorneygenerarsupposes 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-genéfal. 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-ohe-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 carryout 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 he levied. The iruposition of a taix is a high exercise of legislative power, and Congress could -not vest the executive with it-. The act states • twenty per'cént. as a ihaximum, but, within that, there is a discretion to be exercised by Congress.. There ate -three classes of articles ■ recognised in the bill; • ohe paying more than twenty per cent, duty, ohe less, -¿nd- the third entirely free; -Aré all. these to be taxed equally yrith 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 tire .President! ”. Mr. Clay said, “leave it to a future Congress to legislate on the subject of die 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 of1 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,óf states'to make insolvent laws.- If the executive had the power now contended for, it is because Congress failed tó 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 goveMÍrñent, would the Senate have acted as they did? 2d point. If we are not entitled to the-whole, we aré to the difference between the home and foreign valuhtion. 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 Treásury 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 entér into the cash valúe, 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 duly 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. R is contended by die 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 oyer, .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 samé 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 yve 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 hé 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 adt 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 ip 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 bp-ascértained and assessed? . . 1st. It is admitted that prior to the áct of March, 1833, the goods in question were subject to a duty of more'than twenty per cent., by virtue of the act. oí 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 politic'al 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? Tt consists of six sections, the' 2d and 4th of. which are not- material to the present ■inquiry. The 1st section carries out thé 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. Reducmg 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 dutiesutaposed by the 1st section shall rei&ain ánd eotitihue to be, collected. 2v That all'duties thereafter shall be collected in ready money, and all credits abolished. 3. That all duties sháü bélaid 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 iaw. It is said that the first of these propositions limits the-duration of the act to 30thi 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 legislatuie, the expressions used would1 have, been co-extensive with those of the 1st section; and tiie language of the 1st section provides for the state of things after Juné, 1842, whereas that of the clause which is said to repeal it, stops short at that day. Berdes, the provision is merely affirmative in regard to.the act of 1832, which was in its terms a per- • petual 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 — propio vigoré. . It establishes the system of cash, arid abolishes, credit duties, but the duties upon which it is to operate are those provided for in the 1st and 2d sections. It does hot profess to change1 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 proportion. This is a mére 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 proportion. This establishes a principle -and enacts a law, viz.: that the duty shall be calculated on the value of the goods af 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 proviron for the protection of home industry, and jeo-pardeé ttfe bill. But does it repeal the 1st section? Or does it not rather recognise 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.” If 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 ana-lysed .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 in- ' consistent with this act, and necessarily repealed-by it.' But the provisions of the act which merely contemplate future legislation, and. yét enact nothing in themselves, such as that “ duties shall be laid for the purpose of raising necessary revenue only;” that goods paying lessrfhan 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 Tate of duty,,is not incon.sistent 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 omisáon 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 á 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.^.yol. 5, opinion of Mr. Legaré. 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 the 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 Peters, 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. 380, 395; 2 Peters,,662; 1 Kent’s Com. 461 • Opinions of Attorneys-General, Mr, Wirt’s opinion, 444. 445. If every member of the jlegislature had preferred that the. regulations undei 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.rinsert 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. Robbins 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 Peters, 137; 13 Petérs, 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 Attorneys-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 irhproperly by the collector, to be paid immediately over to the treasurer? The case in 10 Peters, 154, sanctions a collector’s retaining money if it is paid under' a protest, but this was before the act óf 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 in the execution of a duty, endorses a bill, he is not personally liable. 5 Price, 564.' Nor will a suit lie agáinst an agent .who pays over; 4 Cowen, 456. And a case'in Wheaton carries-the doctrine further still, that-an officér 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 ot 1839 did not establish it. . . 3. That if it. did, the act wpuld be unconstitutional and void. .1. The-original cases .establish that where payment has been made to an agent, who has1 paid it over without notice, the agent' is not responsible. But if there be notice,, he is. . 10 Peters, 154; 13 Peters, 267 ; 3 Wheat. 246; 4Cowen, 456 — 458 ; 9 Johns. 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 act was right. . But it., only mabes a rule between the govemment ánd 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-whidi it k alleged -that there is no duty at all. -If the - argument on -the - other side be correct, there can be no suit at all againsbany collector, and the Preádent 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 principal is, the 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 maybe recovered against, the., collector, and not,-, that he is vested with discretionary power whethér to refund or not; ■ It would not . be .justice to turn-.a citizen 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 bé no doubt of the existence of a duty, • or that it was levied bn 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. in-, tended 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 coul'd already be collected by existing fews, these words are superfluous. It must-be read as if the words *( and no longer” were inserted. After Juné, 1842, the act says, that only spch 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„gi ard- against fraud. Knowing ■ the difficulty of executing the duty, Congress would .not have so left it. : There is little or no difference bétween 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. Legaré says, it paeans, •“ may or may not be prescribedand that “ may” is not imperative. The 4th section of the -act is said to have no bearing upon the present point; but I <lo not sq,; consider it. It provides for free articles until June, 1842) after mat 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 i§ right, these articles must be tqxed again, and, not being inchfoed°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 5 but the parties could not see as far as 1842. " -One thought that free trade, and the other, protection, would iby that time be the settled policy of the country, and therefore both agreed iiti referring the whole matter to future legislation. They in* tended 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 controvérted 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 discretiomof 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 destray it. The difference in this small invoice is $1500. [MAJORITY — Mr. Chief Justice TANEY] 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 $44,346, 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 favour 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 plaee 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 Aqt; and upon the face of it* it is .evident .that some-' thing 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 timé, 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, whs the case is.abundantly manifested by several clauses in the act, and particularly in the 6th and last sec-, tion, 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 fate 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 Con-, gress. 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 reservátions 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 wa§ proposed that the legislation of. ■Congress should afterwards be governed. Taking this .view of . its general character and objects, die 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 rulés and regulations provided for their collection, remain ih full force, unless they are in-. consistent 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 ,'T841; and that, after that time, the oné-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 as be The latter words of this section relate to the 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. If is a question for the legislature. And the provision in tins clause of the section addresses itself to future legislative bodies, and’ not to the tribunals and officers whosé 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 3d, 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 m.venue 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 were 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 bylaw,” can scarcely be considered as an implied repeal- of all previous regulation^; 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 natúrally and -evidently-embraces all regulations lawfully existing at the time, the home duties went ' into operación, 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 legislátion 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 contmned in the 7th, 8th and 9ih sections of the act of July 14th, 1832, It is true, that these regulations point to. the value of the goods af 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 dpty of the appraisers, and of every person acting as such, by all reasonable ways or means in his power, to> ascertain, estimate, arid appraise the- true and actual value of the goods, at the time purchased and the place from which they were imported. The place of valuation is afterwards changed by the act of 1833, and the duty imposed according to the valu at the home port. It would be a most unreasonable interpretation " f 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 fate of duty directed by law. 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 Preádent 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 rulés and regulations, with the reasons therefor, to the next session of Congress. It is very clear ■that any regulation^ 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 rulés 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, an 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 3.0th of June, 1842, it would scarcely consist with judicial duty, to give an over-technical construction to. doubtftil words, which would make the legislature inconástent with itself, by imposing^ duty on goods im-. ported, and-at the' same time repealing alllaws by which that duty "could be collected. ' For it cannot be supposed that Congress, in qne and the same law, could so have' intended; and such an intention ought not\tobe 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 tile, 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 thé goods.at 1he port at which they entered, as ascertained and appraised, under the rules and regulations established by the secretary of the Treásury’under the direction- of the President. In the opinion of- the - court, they wqre 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 tit is understood that other cases áre 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. 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 r to futüre laws, and regulations prescribed by those,laws. The existing laws- made lio 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 ór regula-- . -tion 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 m giving á construction to that áct. 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 tó the executive nor the judiciary, but to Congress.