The United States may not be sued in the courts of this country
without its consent.
Whether the United States is in legal effect a party is not
always determined by whether it appears as a party on the record,
but by the effect of the decree that can be rendered.
A state which happens to operate sugar plantations by its
convict labor may not review the action of the Secretary of the
Treasury in determining the rate of duty to be collected on foreign
sugar any more than any other producer of sugar may do so.
A suit against the Secretary of the Treasury to review his
action in determining the rate of duty to be collected, under
statutes and treaties, on an imported article, and to mandamus him
to collect a specific amount, is in effect a suit against the
United States.
Even an importer may not invoke the aid of the courts to clog
the wheels of government by attempting to review by mandamus the
action of the Secretary of the Treasury in determining the rate of
duty to be collected on imported articles.
Determining the rate of duty to be collected under the existing
statutes and treaties on foreign sugar is not a mere ministerial
act on the part of the Secretary of the Treasury, but one involving
judgment and discretion.
While a public officer may by law, and at the instance of one
having a particular legal interest, be required to perform a mere
ministerial act not requiring the exercise of judgment or
discretion, he may not be so required in respect to matters
committed to him by law and requiring the exercise of judgment and
discretion.
The courts will not interfere with the ordinary functions of the
executive department of the government.
Application for leave to file a petition for writ of mandamus
against the Secretary of the Treasury to compel him to collect a
different amount of duty on sugar imported from Cuba under the
provisions
Page 234 U. S. 628
of the existing statute and the Treaty of 1902 with Cuba denied
without expressing any opinion on the merit of the question
involved.
The facts, which involve the jurisdiction of this Court to
entertain an original suit against the Secretary of the Treasury of
the United States, and the determination of whether the suit is one
against the United States, are stated in the opinion.
MR. JUSTICE Lurton delivered the opinion of the Court.
The State of Louisiana has appeared at the bar of this Court,
through its Attorney General, for the purpose of obtaining
permission to file this petition against the Honorable William
Gibbs McAdoo, Secretary of the Treasury of the United States, and
the Honorable C. S. Hamlin, Assistant Secretary of the Treasury of
the United States. The United States, by its Solicitor General, has
appeared in opposition, contending that the suit is one against the
United States, and cannot therefore be brought without its
consent.
No principle is better established than that the United States
may not be sued in the courts of this country without its consent.
If, therefore, this be a suit against the United States, the state,
though entitled as a state to appeal to the original jurisdiction
of this Court, must show some authority from Congress under which
such a suit may be brought, or leave to file must be denied.
United
Page 234 U. S. 629
States v. Clarke, 8 Pet. 436;
United States v.
Lee, 106 U. S. 196;
Kansas v. United States, 204 U. S. 331, 333
[argument of counsel -- omitted].
That the United States is not named on the record as a party is
true. But the question whether it is in legal effect a party to the
controversy is not always determined by the fact that it is not
named as a party on the record, but by the effect of the judgment
or decree which can here be rendered.
Minnesota v.
Hitchcock, 185 U. S. 373,
185 U. S. 387;
Kansas v. United States, 204 U. S. 331, 333
[argument of counsel -- omitted].
The facts, briefly stated, upon which relief is asked, are
these:
The state, as a part of its economic policy, operates with its
convicts three sugar plantations and three sugar mills. It is
therefore a producer of sugar, which must find a market in
competition with that imported from the Republic of Cuba and other
sugar exporting countries.
The petition avers that, under the instructions of the defendant
Treasury officials, Cuban sugar, since March 1, 1914, the date upon
which the Underwood Tariff Act became effective, is admitted into
the United States at a rate of 1 1/100 cents per pound, being 80%
of 75% of the rate of duty on sugar imposed by the Dingley Tariff
Act of 1897, which was 1 685/1000 cents per pound. The contention
made is that the rate which should be collected on Cuban sugar is
the rate imposed by the Dingley Tariff Bill, less a reduction of
20%, making the net rate legally collectable 1 348/1000 cents per
pound, as provided in the commercial treaty between the United
States and the Republic of Cuba of December 11, 1903, as made
effective by the act of Congress of December 17, 1903, 33 Stat. p.
3, c. 1,
"
or, in the alternative, the duty on all such sugar imported
into the United States should be 75% of the Dingley Bill rate, or 1
26/100 cents per pound, as provided . . . in the Underwood Bill of
October 3, 1913, without any preferential rate whatever being
allowed in favor of said Cuban sugar. "
Page 234 U. S. 630
Article II of the convention referred to provides that the
products of the soil or industry of Cuba not included in Article
I
"shall be admitted at a reduction of 20% of the rates of duty .
. . as provided by the tariff act of the United States approved
July 24, 1897,
or as may be provided by any tariff law of the
United States subsequently approve."
A proviso to Article VIII is in these words:
"That, while this convention is in force, no sugar imported from
the Republic of Cuba, and being the product of the soil or industry
of the Republic of Cuba, shall be admitted into the United States
at a reduction of duty greater than twenty percentum of the rates
of duty thereon as provided by the tariff act of the United States
approved July 24, 1897, and no sugar, the product of any other
foreign country, shall be admitted by treaty or convention into the
United States while this convention is in force at a lower rate of
duty than that provided by the Tariff Act of the United States
approved July 24, 1897."
The reduction in all sugar duties made by the tariff Act of
1913, effective March 1, 1914, is 25% upon the former rate of the
Dingley bill, and the same act after May 1, 1916, provides for the
free admission of all sugar.
The contention seems to be that the proviso that no sugar shall
be admitted into the United States at a reduction of duty greater
than 20% of the rate of duty provided by the Dingley Act operates
to prevent any reduction in favor of Cuban sugar after March 1,
1914, since the reduction made in duty on all imported sugar,
including Cuban sugar, is 25% of the Dingley rate, and that, as
such reduction is more than the preferential under the Cuban
convention, the preferential duty under that convention ceases.
Upon the other hand, the contention is that the Underwood Act
manifested a plain purpose to continue a preferential of 20% upon
the reduced duties provided therein, a purpose manifested by the
abrogation
Page 234 U. S. 631
of the proviso of Article VIII which might have interfered with
such intent.
It is not the purpose of the court to intimate any opinion upon
the merits of the contentions thus presented, and we have only
stated the opposing views far enough to enable us to decide whether
the suit is or is not one against the United States.
The petition proceeds by averring that the action of the
defendant Treasury officials in instructing customs officers to
admit Cuban sugar after March 1, 1914, at a reduction of 20% of the
rate effective on that date, was
"arbitrary, illegal, and unjust . . . , and will work great and
irreparable injury to your petitioner unless they are restrained
and inhibited from demanding and collecting the said illegal
charges on Cuban sugar imported into the United States, and
another, and higher duty, as shown above, be exacted and collected
by said officials on said sugar instead."
It is then contended that this direction to continue the
allowance of a reduction of 20% upon the reduced rates fixed by the
Underwood Act is such a flagrant exercise of arbitrary power as to
make it the duty of a court of equity, upon application of anyone
having a definite and distinct interest, to prohibit the allowance
of the reduction and require the collection of the full duty
imposed by the Underwood Act, or, if any preferential be allowed,
it be only upon the higher duty exacted by the Act of 1897.
But what definite and distinct interest has the State of
Louisiana whether the rate collected be too high or too low? She is
a producer of sugar which must be sold in competition with foreign
sugar, and the petition avers that the lowering of the duty upon
Cuban sugar will lower the price for which she must sell her sugar
yet unsold. But if Louisiana, as a mere producer and seller of
sugar, may review the action of the Secretary of the Treasury in
determining the rate to be collected on Cuban sugar, why
Page 234 U. S. 632
may not any consumer, though not an importer, make a similar
complaint if, in his judgment, the Secretary of the Treasury is
exacting a higher rate than justified by the law, thereby enhancing
the price he must pay in the market upon imported articles which he
uses? Obviously such suits to review the official action of the
Secretary of the Treasury in the exercise of his judgment as to the
rate which should be exacted under his construction of the tariff
acts would operate to disturb the whole revenue system of the
government, and affect the revenues which arise therefrom. Such
suits would obviously, in effect, be suits against the United
States.
New York Guaranty Co. v. Steele, 134 U.
S. 230;
Louisiana v. Junel, 107 U.
S. 711;
Hopkins v. Clemson College,
221 U. S. 636,
221 U. S.
642.
There have always been remedies by which an importer may recover
an excess rate of duty exacted from him by a customs collector,
either by common law action against the collector, as in
Elliott v.
Swartwout, 10 Pet. 137, or by statute, § 2931,
Revised Statutes; Act of June 10, 1890, 26 Stat. pp. 131, 137, c.
407; Act of August 5, 1909, 36 Stat. p. 11, c. 6. But the claim
that even an importer may complain, by appeal or otherwise, of the
exaction of too low a rate of duty seems not to have been asserted
until 1912, when an appeal by an importer against an assessment as
too low was sustained by the Customs Court of Appeals, 3 Customs
Appeal 24, upon the theory that one might be aggrieved by an
assessment too low, as well as by one too high. But this decision
did not meet with favor, and the remedy by appeal was confined to
cases in which the duty imposed was claimed to be higher than
authorized by existing law. Act of October 3, 1913, 38 Stat. c. 16,
§ 3, part N.
But we can discover no precedent where even an importer has
sought to clog the wheels of government by reviewing the action of
the Secretary of the Treasury by a bill such as this.
Page 234 U. S. 633
The duties imposed upon the Secretary of the Treasury in the
collection of sugar tariffs are not ministerial. They are
executive, and involve the exercise of judgment and discretion. The
facts show a situation in which the Secretary of the Treasury was
confronted with the necessity of construing the law, and then
instructing the customs officers as to whether the 20% preferential
duty on Cuban sugar required by the convention and the Act of 1903
confirming that treaty had been superseded or in any wise affected
by the later provisions of the Underwood Act.
By statute originally enacted in 1792, 1 Stat. 280, c. 37, now §
249, Revised Statutes, it is expressly provided that the Secretary
of the Treasury is to "superintend the collection of customs duties
as he shall think best." His interpretation of any custom law is
made conclusive and binding upon all officers of customs, and upon
his successors, until reversed by judicial decision. Rev.Stat. §
2652, Act March 3, 1875, 18 Stat. p. 469, c. 136, § 2. In the
discharge of his duties, semi-judicial in character, the Secretary
of the Treasury is, by statute, entitled to the opinion of the
Attorney General, which, as we may judicially know, was obtained in
this matter. Ops.Att.Gen., Feb. 14, 1914.
There is a class of cases which hold that, if a public officer
be required by law to do a particular thing, not involving the
exercise of either judgment or discretion, he may be required to do
that thing upon application of one having a distinct legal interest
in the doing of the act. Such an act would be ministerial only. But
if the matter in respect to which the action of the official is
sought is one in which the exercise of either judgment or
discretion is required, the courts will refuse to substitute their
judgment or discretion for that of the official entrusted by law
with its execution. Interference in such a case would be to
interfere with the ordinary functions of government.
Page 234 U. S. 634
Marbury v.
Madison, 1 Cranch 137;
Kendall v.
United States, 12 Pet. 524,
37 U. S. 610;
United States v. Schurz, 102 U. S. 378, are
examples of instances where the duty was supposed to be
ministerial. Cases upon the other side of the line are
Decatur v.
Paulding, 14 Pet. 497,
39 U. S. 514
et seq.; 71 U. S.
Johnson, 4 Wall. 475;
Cunningham v. Macon &c.
Railroad, 109 U. S. 446;
United States ex Rel. Dunlap v. Black, 128 U. S.
40;
United States v. Lamont, 155 U.
S. 303;
Roberts v. United States, 176 U.
S. 221;
Riverside Oil Co. v. Hitchcock,
190 U. S. 316;
Ness v. Fisher, 223 U. S. 683.
This application for leave to file must be denied.
THE CHIEF JUSTICE took no part in the decision of this case.
MR. JUSTICE McKENNA concurs upon the ground last stated.