Argument for the plaintiffs in error. tions" for carrying on a certain trade. But does this carry the power to levy taxes-or if you please to change the phrase, "exact impositions," "levy bonuses,"-for revenue upon such trade? The two ideas are distinct; their circles nowhere touch each other. To provide the "rules and regulations" for conducting a trade relates to the conduct of the persons engaged in it, their methods of transacting their business, the imposition of such checks and safeguards as will secure a compliance with the law. To make such trade contribute in any essential form to the revenues of the country is the exercise of one of the highest prerogatives of the government, and is to be determined upon grounds widely different from the supervision and policing of the trade itself. III. The latter function was the function of these exactions.. In the Mayor v. Second Avenue Railroad Company,* the city of New York required the railroad company to pay $50 for a license for running its cars, justifying the right under the power of the city to establish ordinances for the good rule and government of the city, and to provide penalties for their breach. The court says: "This is only a taxing power in the guise of establishing ordinances for good rule and government." This case went to the Court of Appeals. The opinion of the court says: "Call what it requires by name of license or certificate of payment, or anything else, its primary, and indeed only purpose is to take from the company, under coercion of the penalty which it imposes, the sum of $50 annually for each car run upon the road, for the benefit of the city.... It is in vain, therefore, to speak of it, or to treat it as a license or regulation of police. It is the imposition of an annual tax upon the company in derogation of its rights of property, and on that account is unlawful and void." This same question came again before the Court of Appeals, under this same ordinance, in the case of the Mayor, 21 Howard, Practice Reports, 260. † 32 New York, 272, 273, 274. Argument for the plaintiffs in error. fc., v. The Third Avenue Railroad Company,* where the decision was affirmed. The case of The Commonwealth v. Stodder,† in Massachusetts, presented a similar question. The statute law of Massachusetts authorized the mayor and aldermen to regulate the use of omnibus and stage coaches for the transportation of persons, for hire, from Roxbury to Boston, and from Boston to Roxbury; and an ordinance was passed requiring persons who set up the running of coaches to obtain a license and pay a fee for each license. The court say: "In the aspect in which we have been enabled to regard this part of the ordinance, can we view it in any other light than as the assessment of a tax upon the owner of these vehicles ?" And they decide that they cannot. In Lucas v. Lottery Commissioners, the Court of Appeals of Maryland say: "That a license is a tax, is too palpable for discussion." It is an abuse of terms and of the English language to use the word "fees" in reference to this exaction. Fees are the allowance to public officers for services performed; and through the whole range of custom-house revenue, they will be found to average about what the small charges in this case were, for the issuing a permit, for administering an oath as to loyalty, or oath as to invoices, &c., and they are generally fixed by statute. IV. The intention of Congress not to delegate the power exerted in this case, is manifest from the fact that by two different acts of Congress it has itself taxed cotton. One act is that of July 1st, 1862, the other the act of March 7th, 1864.§ Can it be supposed that it meant to dele * 33 New York, 42. +2 Cushing, 568. † 11 Gill & Johnson, 500; and see Collins v. The City of Louisville, 2 B. Monroe, 136; Mayor v. Beasly, 1 Humphrey, 240; License Tax Cases, 5 Wallace, 472, 474. Referred to supra, 79. Argument for the plaintiffs in error. gate to others a power to tax and to tax at a much higher rate? The President, as we have said, had nothing and could have nothing to do with the "rules and regulations" of the Secretary of the Treasury requiring the defendant to make the exaction, and to pay the money into the treasury. They were, therefore, the secretary's own; made, not in pursuance of any lawful authority of the President acting under statute, but his own wholly. Now, the order of the secretary to a collector or subordinate is no defence for a demand for illegal duties.* V. Neither the prohibition of intercourse, nor the provision respecting its license, nor that concerning its regulation, had any application to the District of Nashville, in the condition in which it was at the time these exactions were made. The act, after providing that the President may, in the contingency mentioned, declare States and parts of States in insurrection, declares that thereupon "all commercial intercourse by and between the same and citizens thereof, and the citizens of the rest of the United States, shall cease, aud be unlawful so long as such condition of hostility shall continue; thus making the prohibition of trade itself, and of course everything dependent thereon, applicable to any region only so long as the condition of hostility shall continue." Now it is matter of public history, that long before the first of these exactions was made, the city of Nashville had been occupied by the National troops, and that it continued in their occupation and under the National control during all the time covered by the transactions out of which our claims arise. It would seem to be manifest, therefore, that the condition of hostility had ceased to exist, and that the provision in question could have no application there, for it cannot be maintained that a portion of our own country in which an insurrection had existed could be regarded as in a state of hostility after such insurrection had been finally suppressed therein by the National troops. *Flanders. Tweed, 15 Wallace, 450; McLane v. United States, 6 Peters, 426; Bend v. Hoyt, 18 Id. 267. Argument for the plaintiffs in error. The decision in The Ouachita Cotton* proceeded upon the ground that the city of New Orleans, after the occupation by the forces under General Butler, ceased to be in insurrection. VI. The act of July 2d, 1864, did not make these exactions legal by a ratification of them by Congress. Nearly all the fees arose prior to the passage of this act, and it could not affect them. The construction of the law of July 13th, 1861, as to all past transactions, is with the courts.† In addition. Nothing in the act requires us to construe it as intended to validate that which was illegal before. No act can be construed to do this unless this be the plain purpose of the lawmaker. Now, the true purposes of the act were to extend the operation of the act of March 12th, 1863; the Captured and Abandoned Property Act. Ex. gr., much property had been collected and held under color of this last-named act. But as no property could be legally collected or sold that was not in fact captured or abandoned, and as much that was collected and sold, was asserted to have been neither captured nor abandoned, much of the money derived from such sales was, on that account, held by the officers making the sales. The secretary was embarrassed by this state of things. To relieve the secretary from these difficulties, and the government from the danger of so much money remaining in the hands of the agents of the Treasury Department executing this law, Congress passed this act of July 2d, 1864, requiring among other things the money ou hand, collected under these laws and regulations, to be paid into the Treasury. Another reason for this act was to enable the Secretary of the Treasury, by rules, to provide for the payment of the * 6 Wallace, 521. + De Chastellux v. Fairchilds, 15 Pennsylvania State, 20; Lewis v. Webb, 3 Greenleaf, 333; Merrill v. Sherburne, 1 New Hampshire, 203, 204; Sanborn v. Com. Rice Co., 9 Minnesota, 279; Holden v. James Aden, 11 Massachusetts, 401, 402. Opinion of the court. expense of the execution of the said act, from the fees imposed, from the sales of captured and abandoned property, and from the sales of the purchased property. These provisions are entirely new in some of their features, and were enacted to avoid the difficulties and dangers before alluded to, and never intended to validate any illegal act or to settle any question of the kind now under discussion. VII. No formal protest was necessary to enable the plaintiff to recover in this case. 1. There is no statute providing for a protest in such a case. The case does not come under any of the acts providing for a protest, as a condition precedent for a suit of this kind. This exaction was wholly foreign to the purpose of this act or any act of Congress, so that there could be no provision for a protest, for no such thing was contemplated, as was done by this rule. 2. Nor was the payment a voluntary payment. The rules and regulations, the refusal to grant the permits without the payment of the money, the presence of an army to aid in the seizure of the cotton if it were attempted to be shipped without the permit, the propriety and necessity of shipment to the loyal States, the great loss to the plaintiff's if not shipped, and the orders and action of these officers, which are a part of the known history of the country, these things show that it was a forced payment.* Mr. G. H. Williams, Attorney-General, and Mr. S. F. Phillips, Solicitor-General, contra. Mr. Justice BRADLEY delivered the opinion of the court. There can be no question that the condition requiring the * Elliott v. Swartwout, 10.Peters, 157; Morgan v. Palmer, 2 Barnewall & Cresswell, 735; Shaw v. Woodcock, 7 1d. 84; Ripley v. Gelston, 9 Johnson, 209; Clinton v. Strong, Ib. 377; Glass Co. v. Boston, 4 Metcalf, 188; Steele v. Williams, 8 Exchequer, 630; Parker v. The Great Western Railroad Co, 7 Manning & Granger, 252; Baker v. Cincinnati, 11 Ohio State, 534; Chase v. Dwinal, 7 Greenleaf, 134; Irving v. Wilson, 4 Term, 485; Snowden v. Da. vis, 1 Taunton, 369. |