The Tariff Law of July 30, 1846, 9 Stat. 42, reduced the duties
on imported coal, and was to take effect on 2 December, 1846. The
sixth section provided that all goods, which might be in the public
stores on that day, should pay only the reduced duty.
On 6 August, 1846, 9 Stat. 53, Congress passed the Warehousing
Act, authorizing importers, under certain circumstances, to deposit
their goods in the public stores, and to draw them out and pay the
duties at any time within one year.
But this right was confined to a port of entry unless extended
by regulation of the Secretary of the Treasury to a port of
delivery.
Therefore, where New Bedford was the port of entry and Wareham a
port of delivery, the collector of New Bedford, acting under the
directions of the Secretary of the Treasury, was right in refusing
coal to be entered for warehousing at Wareham.
Where an importer deposited a sum of money, as estimated duties,
with the collector, which, upon adjustment, was found to exceed the
true duty by a small amount, and the collector offered to pay it
back, but the importer refused to receive it, the existence of this
small balance is not sufficient reason for reversing the judgment
of the circuit court, which was in favor of the collector.
This was a suit brought in the circuit court by Thomas Tremlett,
a merchant of Boston, against Adams, the collector of the port of
New Bedford, for return of duties.
The case is stated in the bill of exceptions, which was as
follows:
"This was an action of assumpsit, brought against the defendant,
collector for the port of New Bedford, to recover the sum of
twenty-two hundred and sixty-seven dollars, seventy-seven cents,
and interest, excess of duties upon sundry cargoes of coal,
imported into the port of Wareham, in the collection district of
New Bedford, by the plaintiff, and claimed to be illegally exacted
by said defendant, and paid by said plaintiff under protest."
"At the trial of the case before his honor, judge Sprague the
following facts were admitted by the defendant, namely: "
"1st. That in the months of September and October, 1846,
Page 54 U. S. 296
the plaintiff, Thomas Tremlett, a merchant of Boston, imported
from Pictou, in Nova Scotia, into the port of Wareham, in the
collection district of New Bedford, nine cargoes of coal, as
follows, namely: "
image:a
"Amounting, in the aggregate, to 1,458 9/12 chaldrons, or 1,922
tons, 8 cwt. 1 qr. 26 lbs., as appears by the custom house
records."
"These several cargoes of coal were shipped at Pictou for the
port of Wareham, a port of delivery only, and upon the arrival at
that port of the first-mentioned vessel, the brig
Indus,
on or about 3 September, 1846, the plaintiff made application at
the custom house in New Bedford, to the defendant, Joseph T. Adams,
then collector at said port, to enter said coal, for warehousing,
at Wareham, aforesaid, under the provisions of the Act of Congress
entitled, 'An act to establish a warehousing system,' &c.,
passed August 6, 1846. But the defendant refused to allow the
plaintiff to enter said coal for warehousing as aforesaid under the
act aforesaid because said Wareham was not a port of entry, but a
port of delivery, and required him, if he would land said coal at
said Wareham, to enter the same under the Act for the collection of
duties passed August 30, 1842, and to deposit $285 to cover the
duties which might be found to be legally due and payable thereon.
The plaintiff, in order that said vessel might be permitted to
discharge her cargo, complied with this requisition, first entering
the following protest in writing: 'I protest against paying duties,
wishing to warehouse the coal per brig
Indus, from
Pictou,' and signed 'Thomas Tremlett, by his attorney, Jacob
Parker.'"
"The usual permit was then granted by the collector to land the
coal from said vessel at said Wareham, and the coal was accordingly
landed, and upon the arrival at said Wareham of the other cargoes
of coal by the several vessels above named,
Page 54 U. S. 297
said plaintiff made like applications to the defendant at the
collector's office at New Bedford to enter each cargo for
warehousing under said Act of August 6, 1846, at Wareham,
aforesaid."
"But the defendant, in like manner as in the case of the brig
Indus, refused permission to warehouse as aforesaid and
required the plaintiff to make the same entry as in that case, and
deposit a sum of money upon the entry of each cargo sufficient to
cover the duties which might be found to be legally due and payable
thereon under the provisions of the Act of August 30, 1842, the
plaintiff first entering a protest in writing in each case, and
upon the entry of each cargo in manner and form as in the case of
the brig
Indus, above mentioned, and said coal was
thereupon landed and deposited in the same manner as that per brig
Indus."
"2d. That all of said coal landed at said Wareham from the
above-named vessels was deposited in one pile and remained in the
place where it was originally deposited until after December 19,
1846."
"3d. That the aggregate sum deposited with the defendant by the
plaintiff, to cover the amount of duties on the several cargoes of
coal above mentioned, was $3,403, and the duties on said coal,
computed under the Tariff Act of August 30, 1942, would amount to
$3,364.14; that by the Act of July 30, 1946, the duties on the coal
in question would amount to $1,135.23."
"4th. That the brigs
Indus and
Mary Sophia
were British vessels; that it has been the invariable practice of
the collectors at New Bedford for more than twenty years to allow
foreign vessels the same rights and privileges as to unlading and
discharging their cargoes at the port of Wareham that are granted
to American vessels, and that no objection was made or intimated by
the defendant to the plaintiff to his landing the cargoes of said
Indus and
Mary Sophia at said Wareham."
"5th. That said Wareham is the principal port, in the collection
district of New Bedford, where coal is imported for
consumption."
"6th. That the defendant, on or before 19 December, 1846,
delivered to the plaintiff's attorney a statement of the balance
due to the plaintiff for money deposited, over and above the amount
of duties claimed on the nine cargoes of coal aforesaid, amounting
to $38.86, and offered then to pay the same to M. Parker, the
plaintiff's attorney, which he declined to receive, and that on 13
November, 1849, Mr. Adams, the defendant, tendered the same amount
in specie to Thomas Tremlett, the plaintiff, at his office in
Boston, which he refused to receive, and informed the defendant
that in 1846 he instructed Mr. Parker, his attorney not to receive
it. "
Page 54 U. S. 298
"7th. That the paper hereto annexed marked A is a true copy of
the commission under which D. Nye acted as an officer of the
revenue from the date of the commission till after January, 1849,
and that the paper marked B, annexed hereto, is a true copy of an
official letter, received by D. Nye from said defendant at or about
the time it bears date, and that the papers annexed, marked C and
D, are true copies of official letters received by the defendant
from the Secretary of the Treasury of the United States."
"Boston, December 13th, 1849."
"The paper marked A was merely an authority to David Nye to act
as deputy collector, inspector, gauger, weigher, and measurer, for
the port of Wareham, dated October 3, 1843."
"The paper marked B was an authority to Nye, from Adams, under
the authority of the Secretary of the Treasury, to warehouse coal
&c. at Wareham under the Warehousing Act of 1846. But this
authority was dated August 22, 1848."
"The paper marked C was dated August 27, 1846, and was a letter
from the Secretary of the Treasury to Adams refusing to allow any
article to be warehoused without the limits of a port of
entry."
"The paper marked D was from the same to same, dated July 5,
1849, merely saying that the district Attorney had been instructed
to defend Adams in the suit brought by Tremlett"
"Upon those facts, the plaintiff, by his counsel, requested the
court to rule and instruct the jury -- "
"1st. That the right or privilege of warehousing goods at any
ports or places within the United States is regulated by the laws
of Congress, which specify the ports and places at which, and the
manner in which, such warehousing shall be permitted, and that no
discretion as to the selection of such ports or places, or as to
the manner in which such warehousing shall be allowed, is reposed
in the collector, or any other executive officer."
"The plaintiff further requested the court to rule and instruct
the jury -- "
"2d. That by law there is no distinction as to the exercise of
such right of warehousing between ports of entry and ports of
delivery, and that if the plaintiff at the time had a right, under
the existing laws, to warehouse his goods in a port of entry in any
district in the United States, he had equally a right to warehouse
them at any port of delivery in such district, upon complying with
the requirements of the laws regulating the warehousing of
goods."
"The plaintiff further requested the court to rule and instruct
the jury -- "
"3d. That the plaintiff, being unlawfully prevented from
warehousing
Page 54 U. S. 299
his goods as aforesaid and required to pay duties upon them
according to the rates established by the Tariff Law of 1842, ought
to recover of the defendant the difference between the amount of
duties chargeable under the Tariff Act of 1842 and that under the
Tariff Act of 1846, and interest thereon from the time of payment
of the several sums."
"The plaintiff further requested the court to rule and instruct
the jury -- "
"4th. That if, upon the facts, the plaintiff could not recover
the whole of the difference between the amount of duties properly
chargeable under the act of 1842 and the amount properly chargeable
under the act of 1846, he was entitled to recover the sum of
$38.86, being the surplus in the defendant's hands over and above
the amount of the duty properly chargeable according to the act of
1842. But the court refused to give the instructions so prayed for;
but, on the contrary thereof, did rule and instruct the jury that
the plaintiff could not maintain his action, nor recover either of
said sums of money, or any part thereof; to all which rulings and
instructions the plaintiff excepts, and prays that his exceptions
may be allowed."
"PELEG SPRAGUE [SEAL]"
"
Judge &c."
The jury accordingly found for the defendant, and upon these
exceptions the case came up to this Court.
Page 54 U. S. 302
MR. CHIEF JUSTICE TANEY delivered the opinion of the Court.
This an action brought by the plaintiff against the collector of
the port of New Bedford for refusing to permit the plaintiff to
enter for warehousing at Wareham sundry cargoes of coal imported
from Pictou, Nova Scotia, which were shipped for Wareham and
arrived in the months of September and October, 1846. Wareham was a
port of delivery in the collection district of which New Bedford
was the port of entry, and the collector, in refusing to permit
them to be entered for warehousing at Wareham, acted under the
directions of the Secretary of the Treasury. The plaintiff was
required to pay in cash the duties imposed by the act of 1842,
before the permit for landing at Wareham was granted. And this suit
is brought to recover the difference between the duties paid and
the duties to which the coal would have been liable if it had been
warehoused at Wareham and remained in store as the plaintiff
desired until the reduced tariff went into operation. The case
depends upon the construction of the Warehousing Act of August 6,
1846.
The law is framed in very general terms, referring to other laws
for some of its regulations and containing but few specific
directions as to the manner in which it should be carried into
execution. And it authorizes the Secretary of the Treasury to make
from time to time such regulations, not inconsistent with law, as
might be necessary to give full effect to the provisions of
Page 54 U. S. 303
the act, and secure a just accountability under it. This mode of
legislation has naturally led to some ambiguity, and has given rise
to this controversy.
The act went into operation on the day it was approved by the
President. And the plaintiff insists that under its provisions he
was entitled, as soon as it passed, to land his goods at the port
of delivery upon bonding for the duties, and to have them placed
there in store in order to avail himself, if he thought proper, of
the reduced tariff, which took effect on the 2d of December, in the
same year. The 6th section of the Tariff Act of July 30, 1846,
which passed a few days before the Warehousing Act of which we are
now speaking, provided that all goods imported after the passage of
that law and remaining in the public stores on the 2d of December
following, when the act went into operation, should be subject to
no other duty upon entry thereof than if they had been imported
after that day.
In expounding the Warehousing Act, it must be borne in mind that
it was not passed for the purpose of enabling the importer to avail
himself of the reduced rates of duty. It is a part of the general
and permanent system of revenue, and its evident object is to
facilitate and encourage commerce by exempting the importer from
the payment of duties until he is ready to bring his goods into
market. The opportunity it afforded of taking advantage of the
reduced rates of duty was an accidental circumstance arising from
the time at which it happened to be passed. The provisions in the
6th section of the Tariff Act of July 30, 1846, had no reference to
goods entered for warehousing. There was no law at that time which
authorized the importer so to enter them. And although the
Warehousing Act, which passed a few days afterwards, enabled the
importer, by warehousing his goods, to take the benefit of the
provisions of the previous law, yet it was not passed for that
purpose. And it must be regarded and interpreted not as an act
passed for a temporary purpose or to meet a change of tariff, but
as one intended to be equally applicable to goods imported after
the 2d day of December as to goods imported between 30 July and
that time. The plaintiff had the same legal rights in this respect
at the time he offered to enter his coal at Wareham as an importer
of the present day, and nothing more, and no greater advantages
were intended to be given him by the Warehousing Act.
Previous to the passage of this act, no goods chargeable with
cash duties could be landed at the port of delivery until the
duties were paid at the port of entry. The importer had no right to
land them anywhere until they had passed through the custom house.
And they could not be landed at the port of delivery without the
permit of the proper officer at the port of
Page 54 U. S. 304
entry. This permit in effect delivered them to the owner to be
landed under the usual inspection and sold and disposed of as he
thought proper, and the permit could not be granted unless the
duties had been paid.
There could therefore but rarely be any necessity for public
stores or warehouses at a port of delivery before the passage of
the Warehousing Act.
It was otherwise at ports of entry. The importer himself had no
right to land them even at a port of entry before the duties were
paid. But when the entry at the custom house was imperfect for want
of the proper documents, or where the goods were damaged in the
voyage and the duties could not be immediately ascertained, or the
cash duties were not paid after the forms of entry had been
complied with -- in all of these cases, the collector was directed
by existing laws to take possession of such goods and place them in
public stores and retain them until the duties were paid. And as
all of this was to be done at the port of entry, public stores were
necessary at such ports, and they had accordingly been provided for
by law before the passage of the Warehousing Act.
Now the Warehousing Act, so far as the landing and storing of
goods is concerned, places goods entered for warehousing upon the
same footing with goods upon which the duties have not been paid.
It provides that in all cases of failure or neglect to pay the
duties within the period allowed by law to the importer, to make
entry thereof, or whenever the owner, importer, or consignee, shall
make entry for warehousing in the manner directed in the act, the
collector shall take possession of the goods and deposit them in
the public stores or in other stores to be agreed on by the
collector or other chief officer of the port, and the importer of
the goods to be secured in the manner provided for in the act of
1818 relative to the warehousing of wines and distilled spirits.
The warehoused goods therefore are to be taken possession of by the
same officer and stored and treated like goods upon which the
importer had failed to pay duty. And as the latter were necessarily
to be taken possession of at the port of entry and accustomed to be
stored there, the natural inference from this association is that
the law contemplated the storage of warehoused goods at the same
place, and did not mean to give the importer a right to store them
at any port of delivery to which he might have chosen to ship them.
The Warehousing Act gives him no peculiar privileges over the
importer of goods directed to be placed in the public stores
because the duties were not paid, nor any greater right to select
for himself the place of storage.
The 2d section of the act strengthens this construction of
the
Page 54 U. S. 305
1st section. It provides that warehoused goods, deposited in the
public stores in the manner provided in the 1st section, might be
withdrawn and transported to any other port of entry, and directs
that the party should give bond for the deposit of them in store in
the port of entry to which they shall be destined. The use of the
words "ports of entry" in this provision implies that they were to
be stored in a port of that description in the first instance and
to be deposited again in a like port if they were transported
coastwise.
Again, the directions as to the manner in which they are to be
secured while they remain in the store and to be delivered to the
party when he is entitled to receive them lead to the same
conclusion. They cannot be withdrawn without a permit from the
collector and naval officer of the port at which they are stored.
And as there is no naval officer appointed or needed at a port of
delivery, this provision would appear to have contemplated the
storage at a port of entry and not of delivery. There are certain
expressions in the law which may be applied to a port of delivery
as well of entry. But they were introduced for the purpose of
authorizing the Secretary of the Treasury, under the power to make
regulations, to have suitable storehouses to provide at a port of
delivery when the nature and importance of the trade might require
it.
The Act of 1799, c. 22, ยง 21, 1 Stat. 642, authorizes the
collector, with the approbation of the principal officer of the
Treasury Department, to employ proper persons as weighers, gaugers,
measurers, and inspectors at the several ports within his district,
and also with the like approbation to provide, at the public
expense, storehouses for the safekeeping of goods, and such scales,
weights, and measures, as may be necessary. The Secretary and
collector were therefore under this law to determine where
storehouses were necessary, and might provide them at a port of
delivery if they believed the interests of the public and of
commerce demanded it. But the law confided it to their discretion
to determine whether they should or should not be provided at any
particular port of delivery, and the Warehousing Act has not
changed the law in this respect, and does not require that there
should be public storehouses at every port of delivery at which the
importer might wish to warehouse his goods.
The record shows that after this transaction took place, the
Secretary did authorize goods to be warehoused at Wareham. But the
question before us is not whether he might not have authorized it
before, but whether, independently of any regulation by the
Secretary, the importer had not an absolute right, as soon as the
law was passed, to land his goods at the port of
Page 54 U. S. 306
delivery to which they were destined and store them there upon
giving the bonds which the law requires. We think he had not, and
that the right, given under the Warehousing Act, was confined to a
port of entry unless extended by regulation of the Secretary to a
port of delivery.
Indeed, the execution of the law would be impracticable under
the construction contended for by the plaintiff. For it directs
that the bond to be taken on the entry for warehousing shall be
prescribed by the Secretary, and it is made his duty to make
regulations to carry the law into full effect and secure a just
accountability. These things required time, and the collector could
not act without them. Yet if the plaintiff's construction be the
correct one, his right to enter his coal for warehousing at Wareham
was as absolute the day after the law passed as it was when he
offered to make the entry. For if the law gave him the right,
independently of any regulations by the Secretary, he was not bound
to wait until they were made and the form of the bond prescribed,
but might have demanded his rights on the 7th of August and sued
the collector if he failed to obtain them. It is evident that
Congress could not have intended to confer upon the importer this
right. Nor can the law receive that construction without rejecting
the provisions which authorize the Secretary to prescribe the form
of the bond, and to direct the manner in which the act was to be
carried into effect. These provisions, in relation to the power of
the Secretary, are important, and were intended to guard the public
against any abuse of the privileges which the Warehousing Act gave
to the importer.
Moreover, many of the ports of delivery are at places where the
trade is trivial and unimportant, and where it would be difficult
to procure suitable storehouses for a cargo unexpectedly arriving
and demanding to be warehoused. In many of them there are not a
sufficient number of officers to superintend the landing and
warehousing of a cargo of an ordinary ship and guard it afterwards
from being improperly withdrawn. The Warehousing Act does not
authorize the appointment of additional officers, at ports delivery
nor provide for any additional expenses to be incurred by the
public in carrying it into execution. And if the collector is bound
to grant a permit to land the goods at any port of delivery which
the importer may select for his shipment, it is easy to foresee the
abuses to which it would lead and the frauds that might be
practiced under it, Congress can hardly be presumed from any
general or ambiguous language to have intended in this law to
dispense with all the safeguards which had been so carefully
provided and preserved in previous acts. We think neither its words
nor its
Page 54 U. S. 307
manifest object will justify such a construction, and that the
collector was right in refusing the permit to the plaintiff to land
and warehouse the coal in question at Wareham.
As regards the small balance of the plaintiff's deposit which
remained in the collector's hands after the payment of the legal
duties, it is no ground for reversing the judgment of the circuit
court. The defendant offered to pay it, but the plaintiff refused
to receive it. The money placed in the hands of the collector for
the estimated duties was a deposit in trust for the United States
for the amount that should be found actually due, and for the
plaintiff for the balance, if any should remain after the duties
were paid. And as the plaintiff refused to receive this balance
when tendered, it continues a deposit in the hands of the defendant
with the plaintiff's consent, and he cannot subject the collector
to the costs and expenses of a suit until he can show that it is
wrongfully withheld.
The judgment of the circuit court is therefore
Affirmed with costs.
Order
This cause came on to be heard on the transcript of the record
from the Circuit Court of the United States for the District of
Massachusetts, and was argued by counsel, on consideration whereof
it is now here ordered and adjudged by this Court that the judgment
of the said circuit court in this cause be and the same is hereby
affirmed with costs.
