Russell v. Williams/Opinion of the Court

This is an action brought for the recovery of duties alleged to have been illegally imposed. The following is the agreed statement of facts, so far as necessary to understand the case:

The plaintiffs, in February and April, 1871, imported into     the port of Boston from Liverpool 988 packages of tea, and      entered the same in warehouse under bond. At various     subsequent dates the plaintiff withdrew these teas for      consumption. These teas were produced in China. The defendant     assessed and plaintiffs paid to the defendant, as collector      of customs, duties thereon at the rate of 15 cents per pound,      and in addition a duty of 10 per cent. ad valorem, paying the     latter amount under protest. The defendant assessed and     exacted the duty of 15 cents per pound under the provisions      of section 21 of the act of July 14, 1870, (16 St. 262,)      which provides that after the thirty-first day of December,      1870, in lieu of the duties now imposed by law on the      articles hereinafter enumerated or provided for imported from      foreign countries, there shall be levied, collected, and paid      the following duties and rates of duties, that is to say, on      teas of all kinds, 15 cents per pound. The defendant assessed     and exacted the additional duty of 10 per cent. ad valorem     under the provision of section 6 of the act of March 3, 1865,      (13 St. 493,) 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 10 per cent. ad valorem in addition to the     duties imposed on any such articles when imported directly      from the place or places of their growth or production.'

The circuit court gave judgment for the plaintiff, and the case is brought here by writ of error. The sole question is whether the additional duty of 10 per cent. ad valorem was or was not lawfully exacted; and this depends on the question whether the provision of the act of 1865, for the payment of 10 per cent. on goods produced in countries east of the Cape of Good Hope when imported from places west of the Cape, was a general commercial regulation for the encouragement of direct trade with those countries, as well as for the benefit of American shipping, or whether it was intended simply as an increase of duties for purposes of revenue. If the former, it would be independent of the duties imposed on the articles, and would not be repealed by a modification of them; if the latter, the result might be different. We are of opinion that it was intended as a general regulation of commerce. The object of the law was to favor direct importation from countries east of the Cape, without regard to the amount of duties imposed on the articles imported. These might be more, or might be less, or might be nothing; yet, the 10 per cent. ad valorem was to be paid if the articles were imported from places west of the Cape. This would incidentally benefit our own shipping, as that principally employed in the direct trade; whereas importation of the same goods to European ports, and thence to this country, would generally be made in foreign vessels. The law in various forms has been in existence since 1861. The successive enactments were as follows:

St. August 5, 1861, c. 45, § 3: 'That all articles, goods,     wares, and merchandise imported from beyond the Cape of Good      Hope in foreign vessels, not entitled by reciprocal treaties      to be exempt from discriminating duties, tonnage, and other      charges, and all other articles, goods, wares, and      merchandise not imported direct from the place of their      growth or production, or in foreign vessels, entitled by      reciprocal treaties to be exempt from discriminating duties,      tonnage, and other charges, shall be subject to pay, in      addition to the duties imposed by this act. 10 per centum ad     valorem: provided, that this rule shall not apply to goods,      wares, and merchandise imported from beyond the Cape of Good      Hope in American vessels.' 12 St. 293.

St. July 14, 1862, c. 163, § 14: 'That from and after the day     and year aforesaid 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 10 per      cent. 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.' 12 St. 557.

The act of March 3, 1863, c. 77, § 2, simply exempted from the operation of the law cotton and raw silk as reeled from the cocoon. The eighteenth section of the new tariff act of June 30, 1864, c. 171, repealed and re-enacted the Cape law of 1862, only changing the words 'beyond the Cape' to 'east of the Cape,' and the words 'this side' to 'west.' The act of March 3, 1865, c. 80, § 6, (which is the law now under consideration,) is set out in the statement of facts. This statute remained in force until supplied by the third section of the tariff act of 1872, which was couched in the same terms, (only adding wool to the excepted articles,) and is still in force.

It will be observed that the first of these laws (that passed in 1861) imposed the additional 10 per cent. ad valorem on goods imported in foreign vessels from beyond the Cape unless they were exempt from discriminating duties by reciprocal treaty, and goods imported in American ships were ex industria exempted from the burden. But it is obvious that this law would have failed to reach the object intended, since it would have been a dead letter in all cases where we had reciprocal treaties with other nations placing their ships on an equality with our own. The next enactment, therefore, left out the reference to foreign ships and propounded the regulation in the form which has ever since been substantially followed. It imposed the additional 10 per cent. ad valorem on the products of the countries beyond, or east of, the Cape of Good Hope, when imported from places this side, or west of, the Cape. By this means the direct trade was distinctly favored, and, without expressly making any discrimination between domestic and foreign vessels, the desired encouragement in favor of the former was substantially attained.

It will also be observed that the provision was successively renewed in the different customs laws without regard to the modifications made in the duties themselves, or the changes made in the free list. It was very early contended by importers that the law was not intended to affect goods which were on the free list, and exempt from any duty-a position somewhat plausible from the words of the law, which were these: 'A duty of 10 per cent. ad valorem in addition to the duties now imposed on any such articles.' It was argued that the 10 per cent. could not be said to be 'in addition to the duties now imposed' where no duties were imposed. But such a construction would evidently have defeated the purpose of the law; and accordingly, it was decided by this court in the case of Hadden v. The Collector, 5 Wall. 107, that the act of 1862 (which was then under consideration) did apply to goods which at the date of the act were duty free, as well as to those which were subject to duty. Reliance was placed in that case, it is true, on the literal phraseology of the law; but the judgment of the court was in conformity with the clear intent of the legislature, as we have supposed it to be. The same conclusion was come to in the case of Sturges v. The Collector, 12 Wall. 19, in expounding the act of 1865, the one now before us. The court, speaking through Mr. Justice CLIFFORD, referred to the evident purpose of congress, not only to augment the revenue, but to make a discrimination 'in favor of the direct trade.' Pages 26, 27.

In conformity with the principle of these decisions, we are of opinion that the law in question continues in force in reference to all goods not expressly exempted from its provisions, whether dutiable or free, and whether new duties imposed are declared to be in lieu of all other duties or not. Such a declaration is a mere formula to indicate that the duties newly imposed are to take the place of and supersede the previous duties specially imposed in the tariff schedules, and not to abrogate any general commercial regulations not expressly mentioned. The duties on tea have been several times changed since 1861; but in our view, these changes have only had reference to the ordinary duties imposed for the purposes of revenue only, and not to the standing regulation which we are considering. In 1861, the regular duty on tea was fixed at 15 cents per pound; in 1864, at 25 cents; in 1870, at 15 cents; and in 1872 it was placed with coffee on the free list. In 1861, 1864, and 1870, the duty was fixed in the general tariff laws of those years respectively; the two first of which also contained the Cape clause discriminating in favor of direct importation. The tariff act of 1870 did not re-enact this clause, but neither was it repealed; it remained in force as enacted in 1865 until re-enacted in the general tariff act of 1872. We do not think that it was necessary to re-enact it in 1870 in order to make it operative upon those imports within its scope, the duties on which were revised by that act. The object of that revision was to readjust the regular schedule of duties, not to interfere with the Cape rule as a regulation of commerce, or any other general regulation not expressly mentioned or referred to in the act, and not repugnant to its provisions. Both laws could stand together without repugnancy. The Cape rule contained in the act of 1865 could only be regarded as repealed by implication, if repealed at all; and considering the object and purpose of the rule, such an implication was not necessarily involved in the act of 1870, and therefore will not be inferred.

It is urged, however, that the case of Gautier v. Arthur, 104 U.S. 345, decides adversely to the view now expressed. But an examination of that case will show that the principle of construction which we have suggested was approved in the opinion of the court. That was the case of plumbago imported in a French vessel direct from Ceylon in 1873. The act of June 6, 1872, had exempted plumbago from all duty, but the seventeenth section of the act of 1864 had imposed posed a discriminating duty of 10 per cent. ad valorem, in addition to the duties imposed by law on all goods imported in foreign vessels, except where by treaty such vessels were entitled to the same privileges as American vessels. The court intimated that if the act of 1872 had done nothing more than to exempt the article from duty, the act of 1864 would still be operative. The court, in its opinion, says: 'A construction of the section, in harmony with this view, is not an unreasonable one. In our judgment it best carries out the purposes of the act imposing a discrimination; and it comforms to the construction which this court, in Hadden v. The Collector, reported in 5 Wall. 107, gave to the succeeding section of the same act.' The opinion then goes on to notice that the act of 1872 does contain something more; that the general repealing clause repeals all acts and parts of acts inconsistent with its provisions, excepting certain other acts, among which the discriminating section of the act of 1864 is not mentioned; and the opinion adds: 'Both from * the general language of the repealing clause, and the enumeration of the provisions of acts excepted from it, we are forced to conclude that it was the intention of congress to put an end, so far as the free list in the fifth section of the act of 1872 is concerned, to the operation of the discriminating act of 1864.' It is only necessary to observe that the act of July 14, 1870, on which the defendants in error rely in respect to the duty on teas, contained no such repealing clause. We do not see, therefore, that the case of Gautier v. Arthur contravenes the conclusion to which we have come.

The judgment of the circuit court must be reversed, and the cause remanded with directions to award a new trial.