1. Under the Act of July 14, 1870, c. 255, the proprietor of
friction matches, who furnished his own dies, was entitled to a
commission of ten percent, payable in money upon the amount of
adhesive stamps over $500 which he at any one time purchased for
his own use from the Bureau of Internal Revenue.
2. The provisions of the statute being clear to that effect, he
is entitled to recover pursuant thereto, although a different
contemporaneous construction of them was given by the bureau, it
not appearing that he acquiesced therein.
The facts are stated in the opinion of the Court.
MR. JUSTICE MATTHEWS delivered the opinion of the Court.
The Swift and Courtney and Beecher Company filed its
Page 105 U. S. 692
petition Jan. 20, 1879, in the Court of Claims for the recovery
of certain commissions alleged to be due to it on purchases of
proprietary stamps under the internal revenue laws.
It alleged that it was, during the period covered by the
transactions set out, the proprietor, manufacturer, and vendor of
friction matches; that as such, at the beginning of its business,
it furnished to the Commissioner of Internal Revenue its own die
for stamps, to be used especially for its own proprietary articles;
that during said period, from time to time and continuously on
different days of each and every month, it sent to him sums of
money from $1,000 to $10,000 as suited its convenience, and that he
transmitted to it stamps, as it needed and ordered, so that in the
account between it and him as to its stamps, the creditor side
showed moneys received by him in certain sums and at certain dates,
but showed the receipt of no sum less than $1,000, and the debtor
side of said account showed that stamps were sent by him to it in
different sums and at different dates, but never in amounts less
than $1,000.
It is further averred that upon the whole amount of stamps
purchased, during the period referred to, the company was entitled
to a commission of ten percent in money, amounting to $389,720.40,
which he has refused to allow; and has allowed in lieu thereof
$354,291.27 in stamps at their face value, insisting such to be the
long-established practice of the office, to which he must adhere
till changed by legislation or judicial decision. The company, in
the petition, in reference to this practice, avers
"that the allowances made to it from time to time between May 6,
1870, and Dec. 24, 1878, have been in accordance with the uniform
practice of said internal revenue office from its organization, but
petitioner avers that at different times prior to 1866, protests
were made to the Commissioner of Internal Revenue by and on behalf
of the manufacturers of friction matches against such a
construction of the statute by him, by which only ten percent
commissions in stamps at their face value were allowed by him upon
the amount of money paid by the purchasers, instead of ten percent
upon the whole amount of stamps purchased, and that such facts are
and have always been known to petitioner. "
Page 105 U. S. 693
It is also averred that the company gave the required security
for a credit of sixty days upon its purchase of stamps, as provided
for in the Act of June 30, 1864, c. 173, 13 Stat. 218, 295, which
enacts,
"That the Commissioner of Internal Revenue may from time to time
furnish, supply, and deliver to any manufacturer of friction or
other matches, cigar lights, or wax tapers a suitable quantity of
adhesive or other stamps, such as may be prescribed for use in such
cases, without prepayment therefor, on a credit not exceeding sixty
days, requiring in advance such security as may be judged necessary
to secure payment therefor, to the Treasurer of the United States
within the time prescribed for such payment."
The defendant filed a general demurrer, which was sustained, and
judgment rendered dismissing the petition. To review this judgment,
the present appeal is prosecuted by the company.
Section 102 of the Act of July 1, 1862, c. 119, 12 Stat. 477,
authorized the Commissioner of Internal Revenue to sell to and
supply collectors, deputy collectors, postmasters, stationers, or
any other persons, at his discretion, with adhesive stamps upon the
payment at the time of delivery of the amount of duties said stamps
represent, and thereupon to allow and deduct from the aggregate
amount of such stamps the sum of not exceeding five percent as
commission, with the proviso,
"That any proprietor or proprietors of articles named in
schedule C, who shall furnish his or their own die or design for
stamps, to be used especially for his or their own proprietary
articles, shall be allowed the following discount, namely, on
amounts purchased at one time of not less than fifty nor more than
five hundred dollars, five percentum; on amounts over five hundred
dollars, ten percentum."
By the Act of March 3, 1863, c. 74, 12 Stat. 714, the word
"commission" was substituted for "discount" in this proviso.
This section as thus amended was reenacted as sec. 161 of the
Act of June 30, 1864, c. 173, 13 Stat. 294, and schedule C enlarged
so as to include friction matches. p. 302.
Section 4 of the Act of July 14, 1870, c. 255, 16 Stat. 257,
continued in force the same provision, directing that proprietors
of articles named in schedule C who shall furnish their own dies
shall be allowed commissions, on amounts over five
Page 105 U. S. 694
hundred dollars, "ten percentum on the whole amount
purchased."
It will be perceived on examining this legislation that while,
in respect to adhesive stamps sold other than those to proprietors
of articles named in schedule C from their own dies for their own
use, the rate of the commission to be allowed to the purchaser
shall not exceed five percent, but within that limit is subject to
the discretion of the Commissioner of Internal Revenue, while in
respect to those of the latter class, including stamps on friction
matches, the rate is fixed by the statute itself, and in the form
as expressed in the act of 1870, where the amounts of purchases are
over $500, the commissions are established at ten percent on the
whole amount purchased. So that while in the sale of adhesive
stamps of the former description, in the exercise of his discretion
as to the rate, he might lawfully provide that the commissions
should be paid only in stamps at their face value, yet in the sale
of stamps to proprietors of friction matches, he was not authorized
to diminish the commission by any such regulation, but was required
to allow and pay in money ten percent calculated on the amount of
stamps purchased on all sales exceeding $500 in amount.
In the present case, the commissions were allowed to the company
not on the whole amount of stamps furnished to it, nor in money,
but in stamps at their face value, calculated on the amount of
money paid by it. This suit was brought to recover the difference
between the amounts, resulting from these two modes of calculating
and allowing commissions.
There is no serious question raised as to the proper
construction of the internal revenue acts upon the point, it being
virtually admitted that the contention on the part of the appellant
upon the provisions of the statutes is correct.
It is met, however, in the opinion of the Court of Claims and in
argument on behalf of the government here, that the contrary
construction, to pay these commissions in stamps at their face
value, has been acted upon by the Commissioner of Internal Revenue
from the beginning, has been acquiesced in by purchasers and
dealers, and has never been changed by Congress, and as an official
practice has thus acquired the
Page 105 U. S. 695
force of law, or if not, then at least it was a course of
dealing, well known to the appellant and acquiesced in, by which it
accepted stamps at their face value in payment of its commissions,
which it is not at liberty now to open, question, and reverse.
The right construction of the internal revenue acts upon the
point of the allowance of commissions to dealers in proprietary
articles, purchasing stamps made from their own dies, and for their
own use, is too clear to bring the case within the first
alternative. The rule which gives determining weight to
contemporaneous construction put upon a statute by those charged
with its execution applies only in cases of ambiguity and doubt.
Edwards's Lessee v.
Darby, 12 Wheat. 206;
Smythe v.
Fiske, 23 Wall. 374;
United States v.
Moore, 95 U. S. 760;
United States v. Pugh, 99 U. S. 265.
We are of opinion that the averments of the petition, admitted
by the demurrer, do not bring it within the operation of the
principle invoked in the second alternative. The case made by the
petition is not that of successive and independent purchases of
stamps, settled for at the time when the commissions given by the
law were paid by the commissioner, the purchaser voluntarily
accepting payment not in money, but in other stamps, and new
dealings of the same character but separate as to each instance had
afterwards upon the same footing and by mutual understanding. On
the contrary, the business was conducted upon the footing of a
running account. Money was paid on account of stamps furnished or
to be furnished, in sums differing in amount but not less in any
case than $500, and stamps were supplied in varying quantities, as
ordered, without reference to corresponding and equivalent payments
of cash, a bond with satisfactory security, in pursuance of law,
having been given and accepted to secure the government against
loss in consequence of purchases on credit. The dealing is,
undoubtedly, evidence that the appellant was willing to purchase
stamps, to be paid for by a credit on account in lieu of cash for
commissions, but it does not prove that he was willing to waive his
right to a commission upon the stamps so purchased. And it would be
incumbent on the government, in order to deprive him of his
statutory right, not
Page 105 U. S. 696
only to show facts from which an agreement to do so might be
inferred, but an actual settlement based upon such an
understanding. The allegations in the petition, in our opinion, do
not constitute such a bar to the recovery sought, and the demurrer
interposed should not therefore have been sustained.
For this error, the judgment of the Court of Claims will be
reversed, and the cause remanded for further proceedings in
accordance with law, and it is
So ordered.