Aldridge et al. v. Williams. parded the bill. But does it repeal the 1st section? Or does it not rather recognise the continued existence of the duties laid in that section? The duties are to be collected in cash. What duties? Not those thereafter to be laid, but those then imposed. 5th proposition. This points to the mode in which such home valuation shall be established, by directing that the "regulations shall be prescribed by law." It is said that the existence of these regulations is a pre-requisite to the power of collecting. Assuming this to be so, what would be the legal effect? Only to leave the duties to be ascertained as they were by the act of 1832. If this clause should become inoperative by legislative omission, it cannot repeal the other provisions of the act. This will be considered more particularly hereafter. The result is, that the third section of the act, when analysed into its five propositions, modified the act of 1832 in but two particulars, viz.: by introducing cash duties and a home valuation. The 4th section, as has already been stated, can have no bearing upon the question, as it is temporary in its character. Let us proceed to the 5th section of the act. Does it repeal the 1st section? It provides' only that Congress may reduce the whole duties below twenty per cent., in case there should be a redundancy of money in the treasury, or raise them to twenty upon free articles, in case there should be a deficiency. How is this inconsistent with the 1st section? It made no change in it, but only reserves a power which existed without such reservation. We must harmonize these sections, if possible. The rule which requires us to do so is so well known that it is useless to cite authorities in support of it. A reservation of power to legislate is not legislation. It would be extraordinary that in a case of mutual concession, all duties should be repealed, and the manufacturing interest left without any protection at all. The 6th section provides "that so much of the act of 1832, or of any other act, as is inconsistent with this act, is hereby repealed." The rate of duties differing from the act of 1833; the credit on duties; the duties on articles made free by the act of 1833, are inconsistent with this act, and necessarily repealed by it. But the provisions of the act which merely contemplate future legislation, and yet enact nothing in themselves, such as that "duties shall be laid for the purpose of raising necessary revenue only;" that goods paying less than twenty per cent. ad valorem, may be admitted at such duty, not exceeding twenty per cent., as may be provided by law;" that "the duties shall be assessed upon the value thereof at the port of entry, under such regulations as may be prescribed by law," (under the assumption before stated,) are inconsistent with no previously existing law. A promise to pass a law to change the rate of duty, is not inconsistent with an existing law, so as to repeal it before the promise is executed. The future legislation contemplated has not been had; Aldridge et al. v. Williams. the only thing done is by the act of the 11th of September, 1841, which provided that all articles imported after the 30th of September, 1841, which paid less than twenty per cent. or came free, should be subject to a duty of twenty per cent., with certain exceptions. Let us now return to the consideration of the fourth proposition of the 3d section, respecting the home valuation, and inquire whether the power to collect duties upon it did not exist under the acts of 1832 and 1833, notwithstanding the omission of Congress to legislate as to regulations. Omitting the qualification of the clause, was it not susceptible of execution under the act of 1832 ? 1. The 7th section of the act of 1832 contains a principle which is as applicable to home as to foreign valuation. It directs the actual value to be appraised by the collector, and provides for duties then or thereafter imposed. Value is what a thing is worth in the market, and the law that provides for ascertaining it by the judgment of appraisers in one place, lays down a principle by which it may be ascertained everywhere. 2. By the 15th section a rule of ascertainment is prescribed by adding insurance. 3. But supposing these sections insufficient, still the 9th section of the act vests the secretary of the Treasury, under the direction of the President, with power to prescribe regulations, &c. Doc. 261, pp. 6, 7; Executive Doc., 27th Cong., 2d sess.,. vol. 5, opinion of Mr. Legaré. But suppose that regulations by Congress were necessary, instead of being made by the secretary. They would only be directory to govern the officers of the customs. The principle is established by the law. Regulations are not wanted to settle the rights of merchants or the amount of the tax, for the amount is fixed at twenty per cent., and this court decided in Wood's case that merchants must pay the amount of duty whether the custom-house officers acted rightly or not. The record admits that twenty per cent. was fairly paid on a home valuation. A duty thus imposed by the law becomes a personal debt. 13 Peters, 493. The government could recover the amount although the officers gave up the goods without any bond; and money thus properly paid cannot be recovered back. 1 T. R. 286. But it has been said that the statute in question may be explained by extrinsic parol evidence of the meaning of the legislature which passed it. Now I hold, 1st, That you cannot look, in interpreting an act, beyond the terms of the act itself and the particular historical circumstances out of which it grew, and, 2d, That if you can, the evidence which has been invoked proves nothing. As to the first proposition, see Dwarris on Statutes, 48; 15 Johns 380, 395; 2 Peters, 662; 1 Kent's Com. 461; Opinions of Attorneys-General, Mr. Wirt's opinion, 444. 445. Aldridge et al. v. Williams. If every member of the legislature had preferred that the regulations under the act of 1832 should not have been sanctioned by that of 1833, it would not have been effective to repeal the act of 1832, unless they had expressed their wish in a legislative form. But 2d, what does the debate prove? Mr. Dickinson's proposition was to strike out the paragraph respecting a future law and insert an adoption of that of 1832. Upon what principle was it rejected? Merely because Congress intended to reserve the power instead of giving it to the executive. Even supposing that you knew the meaning of the Senate, would it follow that the House of Representatives understood the law so? At page 715, Mr. Robbins proposed an amendment, that if Congress should omit to make a regulation, the law should cease; and this was rejected. Mr. Wilkins, in his speech, said that the law was not to be expounded by the declaration of any senator. But suppose I am wrong in all this, still I say that the collector is not personally responsible. I concede that if an agent exacts money illegally, and has notice, he is liable. But there is a distinotion between voluntary and involuntary payments. 10 Peters, 137; 13 Peters, 267. These cases were before the act of 1839, and under them Mr. Hoyt claimed a right to retain money in his hands to meet protests. The act of 3d March, 1839, was passed to prevent this practice, and was founded upon Mr. Grundy's opinion, reported in Opinions of Attorneys-General, p. 1287. This act says that moneys paid to collectors shall not be held by them, but shall be placed to the credit of the treasurer of the United States. It contains two provisions. 1. That the collector shall pay over to the treasurer. 2. It creates a remedy for the party by authorizing the secretary of the Treasury to draw his warrant upon the treasurer for the amount to be refunded. How can an importer, since this act, bring a personal action against the collector? This action of assumpsit is founded on an implied promise. But will the law imply a promise in the face of the act of 1839, which directs all moneys, whether received properly or improperly by the collector, to be paid immediately over to the treasurer? The case in 10 Peters, 154, sanctions a collector's retaining money if it is paid under a protest, but this was before the act of 1839. If he had given a bond not to pay it over, the bond would have been void. If then he cannot retain the money without violating the laws, how can a promise to retain it be implied? If an agent, acting in the execution of a duty, endorses a bill, he is not personally liable. 5 Price, 564. Nor will a suit lie against an agent who pays over. 4 Cowen, 456. And a case in Wheaton carries the doctrine further still, that an officer of government is not personally responsible for torts. 3 Wheat. Aldridge et al v. Williams. Johnson, in reply and conclusion. Let us consider in the first place the point just raised, viz., that we cannot recover because the collector has paid the money over to the government. We say, 1. That there is no such general principle. 2. That the act of 1839 did not establish it. 3. That if it did, the act would be unconstitutional and void. 1. The original cases establish that where payment has been made to an agent, who has paid it over without notice, the agent is not responsible. But if there be notice, he is. 10 Peters, 154; 13 Peters, 267; 3 Wheat. 246; 4 Cowen, 456 458; 9 Johns. 201. 2. It is said, however, that the act of 1839 has changed the law in this respect. It is probable that collectors sometimes retained too much, and if so, the act was right. But it only makes a rule between the government and its officer, without interfering with the rights of the merchant. The 2d section says, "paid under protest against the rate of duty," but does not include cases in which it is alleged that there is no duty at all. If the argument on the other side be correct, there can be no suit at all against any collector, and the President has only to instruct him to seize upon any man's goods that he chooses. 3. Would such a law be constitutional? It is unnecessary to enlarge upon the doctrines, that the government has only limited powers, and that its fundamental principal is, the sacredness of private property, which is not to be taken without law. The true construction of the act of 1839 must be, that the secretary of the Treasury is to draw his warrant for whatever amount may be recovered against the collector, and not, that he is vested with discretionary power whether to refund or not. It would not be justice to turn a citizen over for redress to the very government which has injured him. But, to pursue the argument, 1. Were we bound to pay any thing at all? 2. If so, how much, on the home or foreign valuation? The first point turns on the act of March, 1833, which it is desirable to construe by its own terms only, but if this is difficult, we have a right to resort to its history. The 1st section provides for reductions until June, 1842. After that time, was there any law for the collection of duties? We say not. Up to that day there can be no doubt of the existence of a duty, or that it was levied on the foreign valuation. It is true, that if the law had stopped there, the duty would have continued. But that is not all the law. It in-. tended to provide also for a time subsequent to June, 1842, in some particulars, as for example, payment in ready money and a home valuation. The 3d section says, that until June, 1842, the duties shall remain Aldridge et al. v. Williams. and be collected. If they could already be collected by existing The 4th section of the act is said to have no bearing upon the present point; but I do not so consider it. It provides for free articles until June, 1842; after that time, they fall back into their former class. But the section contemplates fresh legislation, when it says, that goods shall be admitted on such terms as shall be prescribed by law. Why put this in, unless it was thought that there would be no law, unless one were passed? The last part of the 3d section ought to be read as if it were part of the 1st. If you put them together, the sense is clear; and their meaning is, that there is no duty after 1842, unless by the passage of another law. What will you do with the articles enumerated in the 4th section? After 1842, they must go back to their former class. But this would interfere with the basis of the compromise. If the other side is right, these articles must be taxed again, and, not being included within the 1st section, might be taxed more than twenty per cent. But this was not the meaning. The compromise act was more like a treaty, of peace than a law; but the parties could not see as far as 1842. One thought that free trade, and the other, protection, would by that ime be the settled policy of the country, and therefore both agreed in referring the whole matter to future legislation. They in |