43 F. 17 | U.S. Circuit Court for the District of New Jersey | 1890
The plaintiff, a duly-organized corporation under the laws of the Hanseatic republic of Bremen, which is a part of the German empire, is the owner of a line of ocean steam-ships, plying regularly between the ports of Bremen and Now; York, and brings these actions, under section 2931, Rev. St. U. S., to recover the amount of certain tonnage dues, alleged to have been unlawfully collected from said ships during the period extending from June 26, 1884, to July 28, 1888, and while the defendants were successively collectors of customs at tho last-named port. The vessels cleared from Bremen for New York via Southampton, Eng., stopping at or near the latter place temporarily, to discharge cargo and passengers, and to take on board additional cargo, passengers, and mails. The consignees of the vessels paid the dues, in every instance, under protest, and the plaintiff appealed to the secretary of the treasiiry, and finally, at tho suggestion of the latter officer and with the concurrence of the department of justice, brought these actions to determine the authority of the defendants.
“That in lieu of the tax on tonnage of thirty cents per ton per annum, heretofore imposed by law, a duty of three cents per ton, not to exceed in the aggregate fifteen cents per ton in any one year, is hereby imposed at each entry on all vessels which shall be entered in any port of the United States from any foreign port or place in North America, Central America, the West India islands, the Bahama islands, the Bermuda islands, or the Sandwich islands, or Newfoundland; and a duty of six cents per ton, not to exceed thirty cents per. ton per annum, is hereby imposed at each entry upon all vessels which shall be entered in the United States from any other foreign ports. ” 23 U. S. St. 57.
This section was amended by section 11 of the act of congress of June 19, 1886, entitled “An act to abolish certain fees,” etc. 24 U. S. St. 81. The amendment consisted in adding the following words to those just quoted:
“Not, however, to include vessels in distress or not engaged in trade: provided, that the president of the United States shall suspend the collection of so much of the duty herein imposed on vessels entered from any foreign port as may be in excess of the tonnage and light-house dues, or other equivalent tax or taxes, imposed in said port on American vessels, by the government of the foreign country in which such port is situated, and shall, upon the passage of this act, and from time to time thereafter as often as it may become necessary, by reason of changes in the laws of the foreign countries above mentioned, indicate by proclamation the ports to which such suspension shall apply, and the rate or rates of tonnage duty, if any, to be collected under such suspension: provided, further, that such proclamation shall exclude from the benefits of the suspension herein authorized, the vessels of any foreign country in whose ports the fees or dues of any kind or nature imposed on vessels of the United States, or the import or export duties on their cargoes, are in excess of the fees, dues, or duties imposed on the vessels of the country in which such port is situated, or on the cargoes of such vessels; and sections 4223 and 4224 and so much of section 4219 of the Revised Statutes as conflict with this section are hereby repealed.”
Section 4219, tit. 48, c. 3, Rev. St., referred to in the foregoing sub-proviso, provides that “nothing in this section shall be deemed * * * to impair any rights * * * under the law and treaties of the United States relative to the duty of tonnage on vessels.” Section 4227 of the same title and chapter is in these words:
“Nothing contained in this title shall be deemed in any wise to impair any rights and privileges which have been or may be acquired by any foreign nation-under the laws and treaties of the United States, relative to the duty on tonnage of vessels, or any other duty on vessels.” .
“That the commissioner of navigation shall be charged with the supervision of the laws relating to the admeasurement of vessels, and the assigning of signal letters thereto, and of designating their official number; and on all questions of interpretation, growing out of the execution of the laws relating to these subjects, and relating to the collection of tonnage tax, and to the refunding of such tax when collected erroneously or illegally, his decision shall be final.”
The plaintiff’s vessels were German vessels, and on the 19th day of June, 1886, and thereafter until now, the government of Germany exacted no tonnage tax or taxes whatever on vessels of the United States arriving in German ports.
As introductory to their argument, plaintiff’s counsel referred to the policy of our government in relation to the subject of navigation, which, it is claimed, has been from the beginning to establish entire reciprocity with other nations. The practice has been to ask for no exclusive privileges and to grant none, “but to offer to all nations and to ask from them entire reciprocity in navigation.” T Kent, Comm. 34, note. This policy has been judicially recognized by the supreme court in Oldfield v. Marriott, 10 How. 146; and it is asserted that congress had it in view in enacting the acts of 1884 and 1886, imposing the tonnage taxes. The •review presented by counsel of the legislative and diplomatic correspondence touching this subject is historically interesting and instructive, and would be persuasive in the case of a doubtful meaning of an .act of congress, but it cannot be held to affect the interpretation of laws which are plain and unambiguous in their terms. The questions before the court must be determined by the ordinary and well-settled rules .applicable to'the construction of and validity of statutes.
Soon after the passage of the act of June 26, 1884, claims were presented by the government of Germany, and of other foreign powers, having similar treaty stipulations with the United States, in relation to navigation for the benefit of the three-cent rate of tax, under the favored-nation clause. The claims having been referred to the department of justice, the attorney general, on the 19th of September, 1886, gave the following opinion:
“The discrimination as to tonnage duty in favor of vessels sailing from the regions mentioned'in the act, and entered in our ports, is, I think, purely geographical in character, inuring to the advantage of any vessel-of any power that may choose to fetch and carry between this country and any port embraced by the fourteenth section of the act. I see no warrant, therefore, to claim that there is anything in the most1 favored-nation clause ’ of the treaty between this country and the powers mentioned that entitles them to have the privileges of the fourteenth section extended to their vessels sailing to this country from ports outside of the limitations of the act. ”
“But it lias been held by the commissioner of navigation that the voyage cannot be so regarded, and that the vessels must pay dues as coming from Southampton, a British port. Similar rulings have been made in respect to other vessels of different nationality.”
And the report further adds:
“Another instance of complication is that of a vessel starting from, we will say, a 6-30 cent port, and calling on her way to the United States at a 3-15 cent port, and a free port. Other combinations will readily suggest themselves, and need not be stated. But in each ease the vessel is required to pay the highest rate, without reference to the amount of cargo obtained at the various ports from which she comes. Thus a penalty may practically be imposed in many cases on indirect voyages. It is conceived that in many instances the main purpose of the act inay be defeated by these rulings, but it must be admitted that the law contains no provision to meet such cases. * * * This appears to be a proper subject for the consideration of congress.”
From an examination of the above extracts from his report, it will be seen that the secretary of state was of the opinion that the questions re
“Our constitution declares a treaty to be a law of the. land. It is consequently to be regarded in courts of justice as equivalent to an act of the legslature, whenever it operates of itself, without the aid of any legislative provision. But when the terms of the stipulation import a contract, when either of the parties engage to perform a particular act, the treaty addresses itself to the political, not the judicial, department and the legislature must execute the contract before it can become a rule for the court.,”
The same doctrine is held in Taylor v. Morton, 2 Curt. 454; Ropes v. Clinch, 8 Blatchf. 304. In the Cherokee Tobacco Case, supra, there was an open conflict between a treaty contract and a subsequent law, and the question was as to which should prevail. The 107th section of the internal revenue act of July 20,1868, provided “that the internal revenue laws imposing taxes on distilled spirits, fermented liquors, tobacco, snuff, and cigars shall be construed to extend to such articles produced anywhere within the exterior boundaries of the United States, whether the same be within a collection district or not.” The tenth article of the treaty of 1866 between the United States and the Cherokee Nation of Indians stipulated as follows:
“Every Cherokee Indian and freed person residing in the Cherokee Nation shall have the right to sell any products of his farm, including his or her livestock, or any merchandise or manufactured products, and to ship and drive the same to market without restraint, paying the tax thereon which is now or may be levied by the United States on the quantity sold outside of the Indian Territory.”
The collection officers had seized a quantity of tobacco belonging to the claimants which was found in the Cherokee Nation, outside of any collection district of the United States, and exemption from duty was1
As to the time when the act of June 19, 1886, went into operation, whether immediately from and after the date of its approval, or not until the date of the president’s proclamation, and also whether the voyages of the plaintiff’s vessels from Bremen to New York must be made “directly,” and without stoppage at an intermediate port, in order to be exempted from the imposition and payment of tonnage dues, the decision of these questions by the commissioner of navigation must be held to be conclusive, unless so much of section 3 of the act of July 5,1884, which makes his decision final in such matters, is unconstitutional. Much learning and ability have been employed by plaintiff’s counsel to establish the invalidity of this portion of the act, which invests a department officer with such unlimited judicial power, and by which he is enabled to decide all contests in relation to alleged illegal dues, ex parte, ánd absolutely. On the other hand, the labor and responsibility of the court
“We have no doubts [say the court] of the objects or the import of that act. We cannot doubt that it constitutes the secretary of the treasury the source whence instructions are to flow; that it controls both the position and the conduct of the collectors of the revenue; that it has denied to them any right or authority to retain any portion of the revenue for purposes of contestation or indemnity; has ordered and declared those collectors to be the mere organs of receipt and transfer, and has made the head of the treasury department the tribunal for the examination of claims for duties said to have been improperly paid. * * * It is contended, however, that the language- and the purposes of congress, if really what we hold them to be declared in the statute of 1839, cannot be sustained, because they would be repugn apt to the constitution, inasmuch as they would debar the citizen of his right to resort to the courts of justice. * * * The objection above referred to admits of the most satisfactory refutation. This may be found in the following positions, familiar in this and in most other governments, viz, that the government, as a general rule, claims an exemption from being sued in its own courts. That although, as being charged with the administration of the laws, it will resort to those courts as means of securing this great end, it will not permit itself to be impleaded therein, save in instances forming conceded and express exceptions. Secondly, in the doctrine, so often ruled in this court, that the judicial power of the United States, although it has its origin in the constitution; is (except in enumerated instances, applicable exclusively to this court) dependent for its distribution and organization, and for the modes of its exercise, entirely upon the action of congress, who possess the sole power of creating the tribunals (inferior to the supreme court) for the exercise of the judicial power, and of investing them with jurisdiction either limited, concurrent, or exclusive, and of withholding jurisdiction from them in the exact degrees and character which to congress may seem proper for the public good. To deny this position would be to elevate the judicial over the legislative branch of the government, and to give to the former powers limited by its own discretion merely. It follows, then, that the courts created by statute must look to the statute as the warrant for their authority. * * * The courts of the United States are all limited in their nature and constitution, and have not the powers inherent in courts existing by prescription or by the common law. * * * The courts of the United States can take cognizance only of subjects assigned to them expressly or by necessary implication ; a fortiori, they can take no cognizance of matters that by law are either denied to them, or-expressly referred ad aliud examen.”