Under the 6th section of the Act of March 3, 1865, which enacts
that
"There all be hereafter collected and paid on all goods, wares,
and merchandise of the growth or produce of countries east of the
Cape of Good Hope (except raw cotton and raw silk as reeled from
the cocoon or not further advanced than tram, thrown, or
organzine), when imported from places west of the Cape of Good
Hope, a duty of ten percentum
ad valorem, in addition to
the duties imposed on any such article when imported directly from
the place or places of their growth or production,"
a duty of ten percent is chargeable on such goods, &c., when
imported from places west of the Cape, though the same goods be
freed from duty, when imported from the place of their growth or
production, east.
This was an action brought in the court below against the
collector of the port of New York to recover a sum exacted as a ten
percent
ad valorem duty upon a quantity of indigo, the
product of a country east of the Cape of Good Hope, and which bad
been imported into New York, on the 7th of July, 1865, from
England.
Whether the right to lay the duty did or did not exist, depended
on the construction of the 6th section of an Act of Congress of
March 3, 1865, [
Footnote 1]
relating to the importations of goods from places west of the Cape
of Good Hope, in cases where the goods were the products of places
east of it. It was not denied, apparently, that if the indigo had
been imported directly from the place of its growth, the duty would
not have been payable. The difficulty was under the act just
mentioned and in regard to an importation not direct, but from
England, a place west.
This Act of March 3, 1865, already referred to, as in force when
this particular cargo was imported, had been preceded by other acts
on the same subject, and by some judicial construction oil one of
them. That history was thus:
By section 14 of the Act of July 14, 1862, entitled an
Page 79 U. S. 20
act "
increasing temporarily the duties on imports and
for other purposes," [
Footnote
2] it was enacted that
"There shall be levied, collected, and paid on ALL goods, wares,
and merchandise, of the growth or produce of countries beyond the
Cape of Good Hope, when imported from places
this side of
the Cape of Good Hope, a duty of ten percent
ad valorem,
AND in addition to the duties imposed on any such articles when
imported directly from the place or places of their growth or
production."
In the official edition of the statutes the word "and" just
above printed in large capitals, was printed in italics -- a form
of printing which indicated that the compiler of the edition
supposed it an accidental insertion, and superfluous. An act
subsequent to that above-quoted act -- namely, of March 3, 1863,
[
Footnote 3] enacted that the
above-quoted section should be so modified as
"To allow cotton, and raw silk as reeled from the cocoon, of the
growth or produce of countries beyond the Cape of Good Hope, to be
exempt from any
additional duty when imported from places
this side of the Cape of Good Hope, for two years from and after
the passage of this act."
These two articles were exempt from duty at the time of the
passage of the above-quoted act of 1862.
Soon after the passage of the act of 1862, but before the act of
1863, modifying it, one Hadden imported into New York from England
a quantity of raw silk, the product of Persia, and which it was
admitted but for the act of 1862 would have been free from duty. A
duty of ten percent being exacted and paid under protest, Hadden
brought suit in the circuit court for New York against the
collector, to recover what he had paid, his idea in bringing suit
to recover the duty paid on the silks, being that
"1st. That the expression in the act of 1862, 'AND IN ADDITION
to the duties imposed on such articles when imported
Page 79 U. S. 21
directly from the place or places of their growth or
importation,' laid the ten percent only in cases where the product
was already subject to some prior duty, large or small."
"2d. That by the words
'this side of the Cape,' goods
imported into the Atlantic ports were within the terms and
chargeable with duty, while goods imported into the Pacific ports
were not within them, and not chargeable, and so that the clause of
the Constitution, which requires all duties to be uniform
throughout the United States, was contravened; and the enactment
itself, of course, void."
The circuit court, admitting that previous sections of the act
did undoubtedly lend some countenance to the importer's argument
that the duty was laid only where a prior duty existed, and that
the 14th section itself was obscure, still considered, oil the
whole statute, that the silks were meant to be charged with the ten
percent
ad valorem, and that as the expression "
this
side of the Cape," was only another form of saying "places
west of the Cape," that judgment was to be given for the
United States. It was so given accordingly. That judgment was
affirmed in this Court on error; [
Footnote 4] the Supreme Court adverting to the act of
1863, modifying that of 1862, as showing that the understanding of
Congress was that the ten percent was imposed as an additional
duty, though in fact raw silk, as already stated, was at the time
exempt.
In June, 1864, seven months after the decision just mentioned of
Hadden's case, on the circuit, Congress repealed section 14th of
the act of 1862, [
Footnote 5]
and by an act like the former one, entitled "an act to increase
duties on imports," &c., enacted:
"That on and after the day and year this act shall take effect,
there shall be levied, collected, and paid on all goods, wares, and
merchandise of the growth or produce of countries east of the Cape
of Good Hope (except raw cotton), when imported from places west of
the Cape of Good Hope, a duty of ten percentum
ad valorem,
in addition to the duties imposed on any such articles
Page 79 U. S. 22
when imported directly from the place or places of their growth
or production."
The reader will observe that the words "this side" of the Cape
of Good Hope, in the act of 1862, are changed in the new act to
"west" of the Cape, and that the word "and" disappears.
This enactment was in substance (with an extension of the
exemption from duty to raw silk in certain condition), reenacted in
section 6th of an act of March 3, 1865, [
Footnote 6] under the provisions of which the defendant
levied and collected the duties upon the plaintiff's importations.
That section enacted
"That there shall be hereafter collected and paid on all goods,
wares, and merchandise of the growth or produce of countries [east]
of the Cape of Good Hope (except raw cotton and raw silk as reeled
from the cocoon, or not further advanced than tram, thrown, or
organzine), when imported from places west of the Cape of Good
Hope, a duty of ten percentum
ad valorem, in addition to
the duties imposed on any such article when imported directly from
the place or places of their growth or production."
In the present suit, the court below gave judgment for the
collector, and the importer brought the case here.
Page 79 U. S. 24
MR. JUSTICE CLIFFORD delivered the opinion affirming the
judgment.
Moneys paid for import duties, when illegally levied, may be
recovered back by the owner, importer, or consignee in an action of
assumpsit against the collector by whore the same were exacted if
the payment was made under written protest, as required by law, and
the party making the payment failed to obtain redress by appeal
seasonably taken to the Secretary of the Treasury. [
Footnote 7]
Forty-one chests of indigo, the product of India, were, on the
seventh of July, 1865, imported by the plaintiffs from London,
England, into the port of New York, and the agreed statement shows
that the late collector of that port levied and exacted as duties
thereon ten percentum
ad valorem, that the plaintiffs paid
the same under written protest, and that the decision of the
collector levying the duties, on appeal duly taken to reverse the
same, was affirmed by the Treasury Department.
They protested that the assessment was illegal upon the ground
that the goods were entitled to be admitted to entry free of duty,
and having failed to obtain redress from the Secretary of the
Treasury for what they regarded as an illegal
Page 79 U. S. 25
exaction, they brought an action of assumpsit against the
executors of the late collector to recover back the amount so
exacted and paid for the duties.
Process having been issued and served, the defendants appeared
and the parties went to trial, but they ultimately submitted the
case to the decision of the court upon an agreed statement of
facts. Before the case was finally submitted, however, the parties
were heard, and the court subsequently rendered judgment for the
defendants, and the plaintiffs sued out a writ of error and removed
the cause into this Court.
Whether the goods imported in this case were dutiable or not
depends upon the construction to be given to the sixth section of
the act of the third of March, 1865, which provides that there
shall be hereafter collected and paid
on all goods, wares, and
merchandise, of the growth or produce of countries east of the
Cape of Good Hope (except raw cotton and raw silk as reeled from
the cocoon, or not further advanced than tram, thrown, or
organzine), when imported from places west of the Cape of Good
Hope, a duty of
ten percentum ad valorem, in addition to
the duties imposed on any such article when imported directly from
the place or places of their growth or production. [
Footnote 8]
Strike out the last clause, commencing with the words "in
addition," and the body of the section would be as clear as any
enactment can be that all goods, wares, and merchandise (save the
two excepted articles), imported from places west of the Cape of
Good Hope, if grown or produced in any country east of the Cape of
Good Hope, are by that provision subject to a duty of ten percentum
ad valorem.
Argument upon that subject is unnecessary, as the proposition is
as plain as anything in legislation can be, but if that clause had
been omitted, goods imported from London, the growth or production
of India, would not have been subject to any higher rate of duty
than goods of like kind imported directly here from India, the
place of their growth or production, unless the goods were, by
antecedent laws, subjected
Page 79 U. S. 26
to a rate of duty higher than that imposed in the section under
consideration, which would have defeated wholly or partially both
purposes which Congress had in view in enacting the new
provision.
Compress desired to raise more revenue from importations
consisting of articles grown or produced in countries east of the
Cape of Good Hope, and at the same time to preserve and continue
the discrimination established by existing laws in favor of
importations made directly from the countries where the articles
imported were grown or produced.
Had the last clause of the section been omitted the new
provision, in any view of the subject, would not have augmented the
revenue to any considerable extent, and if construed as repealing
the prior laws upon the same subject its effect would have been
very largely the other way, and it would have operated as a
discrimination against the direct trade and in favor of the
importation of such articles from countries west of the Cape of
Good Hope, or in other words, it would have reversed the policy of
the government by encouraging the indirect instead of the direct
trade in the articles of commerce grown or produced in those
distant countries. Evidently, therefore, the clause providing that
the duty levied by the section was in addition to tire duty imposed
on any such article when imported directly from the place
or places of their growth or production was an indispensable
provision to carry into effect the purposes intended to be
accomplished by the enactment.
All articles of the growth or product of countries east of the
Cape of Good Hope, except the two named as exempted, when imported
from places west of the Cape are declared to be subject to the rate
of duty therein prescribed, and to prevent any misconception as to
the intention of Congress and to close the door against any
suggestion that the new provision repealed or modified the prior
law, it was provided that the new dirty was in addition to the
duties previously "imposed on any such article" when imported
directly from the place or places of their growth or production.
Tell
percentum ad valorem is imposed on all such goods,
wares, and
Page 79 U. S. 27
merchandise, except the two articles named as exempted, whether
they were or were not subject to duty its articles of direct trade
under any antecedent law, if they fell within the conditions
specified in the sixth section of the act imposing the duty.
Certain articles of the growth or production of countries east
of the Cape of Good Hope were subject to duty, even when imported
here directly from the place of their growth or production, while
other articles, when so imported, were entitled to be admitted to
entry free of duty. Articles of the kind described in the section,
not dutiable as articles of the direct trade under any antecedent
law, were to pay only the ten percentum
ad valorem
specified in the section, but all articles previously dutiable as
articles of the direct trade, save the two exempted in the body of
the section, were to be subject, in case they were imported here as
articles of the indirect trade, to a duty of
ten percentum ad
valorem in addition to the duty imposed under any prior law,
in case the articles were imported here directly from the place or
places of their growth or production. Construed in that way, both
of the purposes which Congress lead in view were accomplished, as
the provision had the effect to augment the revenue, and at the
same time to preserve and continue the discrimination created by
antecedent laws in favor of the direct trade, which is in
accordance with the policy of our external revenue system as
exhibited in all our laws upon the subject.
Raw cotton and raw silk as reeled from the cocoon, or not
further advanced than tram, thrown or organzine, were exempted from
the new duty, or any other, by an exception inserted in the body of
the section, and it is a reasonable conclusion that if Congress had
intended to exempt any other articles of the growth or production
of those countries, the articles would have been enumerated and
included in that exception.
Expressio unius est exclusio
alterius.
Such an exception as that inserted in the body of the section
was indispensable to exempt any such article from the new duty, as
the introductory words of the section include, in express terms,
all goods, wares, and merchandise, of the
Page 79 U. S. 28
described character, when imported from places west of the Cape
of Good Hope. Unless it can be assumed that the words "all goods,
wares, and merchandise" are not used in their ordinary sense, it
must be understood that they include all such articles of
importation not specifically exempted, as the exception proves the
rifle, and shows to a demonstration that all such articles, except
those two are subject to the prescribed duty, and that the last
clause was not superadded to exempt any other articles from the
operation of the introductory words of the section, but to prevent
the entire provision from being misunderstood and misapplied, so as
to defeat one or both of the purposes which Congress had in view in
passing the law. Confirmation of this view is derived from the
antecedent legislation of Congress upon the same subject.
Duties on imports were temporarily increased by the act of the
fourteenth of July, 1862, the fourteenth section of which
levied
"on all goods, wares, and merchandise of the growth or produce
of countries beyond the Cape of Good Hope a duty of ten percent
ad valorem, and in addition to the duties imposed on any
such articles when imported directly from the place or places of
their growth or production."
Attention need only be called to the last clause of that
enactment, as it is not controverted that the legal effect of the
body of the section, under which the duties in this case were
levied and collected, is substantially the same as the
corresponding portion of that provision, but the suggestion is that
the last clause in the last act is materially different from that
of the former, as it does not contains the word "and" before the
words "in addition," as employed in the prior act. Drop the word
"and" before the words "in addition," as employed in the former
law, and the language of the respective clauses is the same without
the variation of a single letter. [
Footnote 9]
Congress having subsequently repealed that provision, found it
necessary at a later period to reenact it, and in reproducing
Page 79 U. S. 29
the provision the word "and" before the words "in addition," as
employed in the prior law, was dropped evidently because it was a
redundant word wholly unnecessary to give expression to the meaning
and intention of the lawmakers. When the act was transcribed for
official publication the word "and" was italicized by the compiler
of the acts of Congress as expressive of his opinion that it was a
redundant word, as it plainly appears to be to everyone acquainted
with the revenue laws and the subject matter to which the
particular provision relates. [
Footnote 10]
Importations of raw silk, soon after the passage of that act,
were made from Liverpool, England, into the port of New York, and
it was agreed in the statement of the case that the articles
imported were the products of Persia and China. Ten percent duty
was exacted, and the merchant paid the same under protest and
brought assumpsit against the collector to recover back the amount
paid. He was defeated in the circuit court and be removed the cause
into this Court, where the judgment of the circuit court was
affirmed by the unanimous opinion of this Court. In disposing of
the case, the court said that the latter clause does not qualify
the general language, "on all goods, wares, and merchandise,"
employed in the body of the section, so as to exclude from it the
articles exempted from duty under prior acts of Congress. Instead
of that, the court proceeds to say that it only provides that the
duty laid by the body of the section "shall be in addition to
existing duties on such articles when imported directly from their
places of growth or production;" that such articles as already pay
a duty when imported directly from those places shall pay a further
duty, as therein prescribed, if imported from countries west of the
Cape, the object being to increase the duty upon the articles when
not imported directly from their places of growth or production.
[
Footnote 11]
Based as that opinion is upon the proposition that the
Page 79 U. S. 30
latter clause of the section does not qualify the first clause
imposing the new duty, it is decisive of the question before the
court, as it is clear that the word "and" before the words "in
addition " was not regarded as of any importance or as contributing
in any degree to that conclusion. On the contrary, the court
decided on that occasion, what undoubtedly is correct, that the
words "any such articles," in the last clause of the section, "do
not mean all the articles embraced in the first clause, but only
such of them as were already subject to duty," to which we add,
leaving all the rest subject to the new duty imposed by the first
clause or the body of the section.
Support to that conclusion was also drawn, in that opinion, from
the second section of the act of the third of March, 1863,
modifying the fourteenth section of the prior act, and providing
that cotton and raw silk, as reeled from the cocoon, of the growth
or produce of countries beyond the Cape of Good Hope, should be
exempted from any additional duty when imported from places this
side of the Cape for two years from and after the passage of the
act. [
Footnote 12]
Unaided by one or two remarks of the circuit judge in disposing
of that, controversy in the circuit court, the defense here would
be entirely without support, but it is a sufficient answer to those
remarks to say that the decision of the case when removed here by
writ of error was not placed upon that ground; that the ground
assumed in this Court was that the last clause of the section, when
properly construed, did not qualify the body of the section in
respect to the articles not previously dutiable; that it merely
provided that the new duty was all additional one in respect to
articles subject to duty under prior laws, leaving all other
articles embraced in the first clause or the body of the section
subject to the new duty therein prescribed, and the court as now
constituted, is clearly of the same opinion.
Judgment affirmed.
[
Footnote 1]
13 Stat. at Large, 493.
See the act
infra, p.
<|79 U.S. 22|>22.
[
Footnote 2]
12 Stat. at Large 557
[
Footnote 3]
Ib., 742.
[
Footnote 4]
<|5 Wall. 107|>Hadden v. The Collector, 5 Wall.
107.
[
Footnote 5]
13 Stat at Large 216.
[
Footnote 6]
13 Stat. at Large 493.
[
Footnote 7]
13 Stat. at Large 215.
[
Footnote 8]
13 Stat. at Large 493.
[
Footnote 9]
12 Stat. at Large 557; 13
id. 493.
[
Footnote 10]
13 Stat. at Large 216;
ib., 493.
[
Footnote 11]
<|5 Wall. 112|>Hadden v. The Collector, 5 Wall.
112.
[
Footnote 12]
12 Stat. at Large 657;
id. 742.
