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it ordains that the duties “shall be assessed upon the value at the port where the same shall be entered.' Insert these words into the act of 1832, in the place of those above enclosed (-) in brackets, and you will find that they are perfectly consistent with all the provisions of that act, as if they made a part of it originally. If the real value of the customary goods in a foreign market is to be ascertained, and can be ascertained by appraisement under the act of 1832, there should seem to be no reason why their value at the home port may not be appreciated by precisely the same means, and with precisely the same exactness.
There may be grave political reasons against adopting a system liable, perhaps, to error or abuse; but those reasons apply to ad valorem duties universally, and to all attempts whatever at independent appraisenient. Therefore, they present no obstacle to the execution of the act of 1833, that is not just as embarrassing under the act of 1832, which it modifies in this particular.
To prevent or to correct, as far as possible, the evils incident to every system of valuation, the different statutes upon this subject have vested in your department powers, as I conceive, somewhat beyond the bounds of ordinary Executive discretion, large as that necessarily is in every system of administration. They vest in it the power which is often dele. gated to the courts, to adopt rules of practice, in some cases falling little short of legislative power. For, first, the 9th section of the act of 14th July, 1832, to which you refer, is a very pregnant provision, evidently calculated to give the department an extraordinary control over the whole subject of ad valorem duties, actual and future. It is only a repetition of the 10th section of the act of 1828, which was of precisely the same purport. The extraordinary importance of this authority is clearly proved by the injunction, itself extraordinary, to report to Congress the regulations to be made by virtue of it. Under the old system of ad valoremi duties-as, for instance, by the 61st section of the act of 1799, and by the act of 1823, section 5-less discretion seems to have been allowed. Arbitrary rules alone were prescribed—such as the addition of 10 per cent. to cost, &c. The provisions of later acts, especially those of the act of 1832, leaving the appraiser more free to put his own estimate upon goods, required that greater precaution should be adopted to prevent irregularities and abuses in the execution of snch a power. Second. The act of 28th May, 1830, authorized the appointment of an additional appraiser at New York, and four assistant appraisers at New York, and two at Philadelphia. This statule also prescribed the duties of the assistant appraisers in words well worthy of being brought particularly to your notice. They are as follows: "Shall be employed in appraising goods, in such manner as shall be directed by the Secretary of the Treasury, subject to the supervision of the chief appraiser, and a still further supervision of the collector over the whole, and a right of appeal to him in the importing merchant.
Il, therefore, the clause in question of the act of 1833, section 3, stopped at the words “should be entered,” I should hold it too clear for doubt that the existing revenue laws were amply sufficient to enable the reve. nue officers to collect the 20 per cent. duty imposed by that act. But those words are followed by others, which are supposed to affect very materially the sense of the whole. They are under such regulations as may be prescribed by law. Under such regulations as may be, which I construe as may or may not be; for may implies discretion to do or not to do.
I do not think that in a fair legal construction this amounts to any thing more than what so frequently happens in all statute law--an expression of what would be supplied by the common law, were it not expressed – expressio eorum quæ tacile insunt, and which, therefore, according to a maxim of the law, nihil operatur. If the legislature retain its usual powers, it may of course, if it see fit, prescribe new regulations in any branch of the service. I hold, therefore, that “such regulations as may be prescribed by law,” is equivalent to such regulations as may be from time to time prescribed in other words, to any regulations prescribed by law. Read the act of 1833 with that of 1832, and the provision in question would harmonize fully with the 9th section of the latter, which authorizes the Secretary to adopt regulations, &c. The words in question are merely affirmative. I need not cite cases to show, that what is done by an executive department, by virtue of an authority vested in it by law, is considered as done by law. Thus lands reserved from sale by order of the Secretary of War, 13 Pet. 112, Wilcox vs. Jackson, (Barbour, judgment of the court.) Therefore regulations prescribed by the Secretary of the Treasury in virtue of the supplementary power granted by the acts of 1828 and 1832, are regulations prescribed by law, and this satisfies the very words of the act of 1833. If, however, a special emphasis must be laid on the words "may be prescribed by law,' and some meaning other than the plain and natural one ascribed to them in the foregoing remarks must be attached to them, the question then presents itself, do they mean that the act of 1833, só comprehensive in its extent, so precise in its provisions, so fundamental in its character, so capital in importance, should be a dead letter, without the addition to it of certain subordinate instrumental regulations of mere mode and detail, which, if my previous reasonings are just, might be, after all, superfluous? Is this a construction to be adopted, if it be not absolutely inevitable? Suppose Congress, in continuing the act by the bill now on its passage, should do nothing in the way of additional regulation, as the House of Representatives has done nothing; suppose it intentionally to renounce all further legislation on the subject, or to adopt some single but confessedly inadequate provision; would it, by doing so, deprive the Secretary of the Treasury of his power of supplementary regulation under the act of 1832? Suppose it prevented by accident, by sudden adjournment on account of war or pestilence, from doing anything in the way of further regulations, would it not be a strange interpretation to consider the whole revenue system as at an end, when the plainest and most imperative precept is solemnly promulgated in the act of 1833, that all duties shall be paid at 20 per cent. according to value, and that value estimated in the home market? Admit that legislation was desired and contemplated, to wit: without negative words to repeal the provisions of the act of 1832, &c. Surely the legislature, as such, has, however imperfectly, done its part. It has prescribed a clear rule of conduct and obligation. It is now the law that on the value of all importations (after the 30th June) a fifth part shall be paid to the government on entry made at the custom-house, else the merchandise shall be forfeited to the government. As between the government and the im. porter, there is nothing clearer than the duty of the latter under the law
of 1833 to pay his 20 per cent. He is bound to do so at his peril. This is a condition precedent to his right of selling his merchandise. Indeed, if he do not comply with that condition, he forfeits his property, which is at once, unless he sell it to a bona fide purchaser, vested in the government. Generally, the regulations adopted by the government are for its own protection and the government of its officers. They are strictly directory. This view of the subject I conceive to have been fully sus. tained by the Supreme Court at the last term, in the case of Wood vs. the United States. However the question may stand between the government and its officers—whether the conduct of the latter were quite regular or otherwise—it is certain the importer would have nothing to complain of, provided that in fact nothing more were taken from him than 20 per cent. Whether he paid it voluntarily or were compelled to pay it, he would not be allowed to recover it back, because he would be morally and legally bound, under the act of 1833, to pay that amount to the government. In short, the act of 1833 is in itself a complete law, and at all events obligatory as the declared will of the legislature. Regulations are merely instrumental, and may or may not be necessary or convenient in the execution of it, according to circumstances and the views of Corgress. So far, therefore, as the importers are concerned, they would have no color to object that they should pay nothing, because Congress had only passed a precise law, and made no regulations for executing it. With the same precision, however, the Executive might have cause to regret the omission which it would be compelled to supply. But the construction against which I am reasoning, seems to me too nischievous and too little warranted by the language of the act, judicially interpreted, to be entertained in such a case. If, however, we must needs lay particular stress on the words in question, I can imagine a reason why they should be used-a political, not a legal reason.
The act of 1833 was what is called a compromise. It bears this charac. ter upon its face; the proviso in the last section is unequivocal to that effect. Besides, the history of a statute may be looked to for the purpose of aiding in the explanation of its true scope and spirit. The Supreme Court has said it will sometimes take judicial notice of such extraneous facts to that end. (9 Wheat. 1, Gibbons vs. Ogden.) If, then, the construction which, on the usual canons of interpretation, I have put upon the words above, must give way to a more special one, I should think it not improbable-certainly a far less absurd and inconvenient one than that which would nullify the law entirely—that they were inserted in the same view as the proviso in the last section; that is to say, by way of saving and reserving to Congress its moral liberty of future legislation, to a certain extent, non obstante the compact out of which the act grew. It was in this view a declaration that Congress might still, from time to time, if need were, adopt such regulations for the convenient execution of the law as experience might show to be necessary. This declaration was of course, in strictness, superfluous; but it might indicate the feeling of moral obligation that led to or accompanied the passing of the act. In this point of view, however, the words are wholly unimportant for any legal purpose--the reservation would be entirely political. 'On the whole, I think the act binding on all, without any statutory regulations connected with it, and susceptible of complete execution under the existing state of the law. I need scarcely add that your regulations must be uniform throughout the Union. I have the houor to be, sir, your obedient servant,
H. S. LEGARE. Hon. WalteR FORWARD,
Secretary of the Treasury.
DUTIES UNDER THE COMPROMISE ACT OF 1833.
The preceding opinion reconsidered and reaffirmed. The bearing of the fifth section accords'
with the interpretation given. Duties can be assessed under the act of 1813, as that of 1832 is not repealed, but only modified
so far as any of its provisions are incompatible with it. It must be read in pari materiâ with former acts; and, when so read, a revenue policy may be rationally discerned and effectuated. OFFICE OF THE ATTORNEY GENERAL,
June 24, 1842. Sir: In compliance with the request conveyed to me in your short note just delivered to me, I have looked again into the act of 1833 with a particular view to the effect of the fifth section of that act upon the interpretation of the rest. The words to which you point as worthy of especial attention are the following: “And on all imports on which ihe first section of this act may operate, and all articles now admitted to entry free from duty, or paying a less rate of duty than twenty per centum ad valorem before the said 30th day of June, 1842, from and after that day may be admitted to entry subject to such duty, not exceeding iwenty per centum ad valorem, as shall be provided for by law.”
I confess I see in this provision only a confirmation--and I will use the freedom to add, a very decided confirmation of the views set forth in the preceding opinion. This clause, like the proviso in the sixth section, is clearly the language of coinpromise. It reserves to Congress a moral liberty to make changes in the law--that is, in the substance of the law the rate of duties, in certain cases, not regarded as falling within the true scope of the compact. I say the moral liberty, because, of course, the strict constitutional competency of a subsequent Congress to change the law could not be affected by any arrangement or legislation of the kind by a preceding one. All that can be done is to declare an understanding entered into on the faith of the legislature for the time being, and to consecrate it, as far as possible, by clothing it in the form of law. I am clear that the clause in question produces no such effect as you say has been ascribed to it in the first section of the act. I understand the idea to be, that no duties whatever can be collected after the 30th of June, unless Congress pass some additional act to that effect. The effect of the first section of the act of 1833, is to reduce all duties, which by previous statutes were above 20 per cent. ad valorem, to that uniform rate. To this extent--and only to this extent--were those previous statutes modified by that of 1833. Up to that amount they remained in full force, and constituted, or rather will (unless expressly or impliedly repealed, &c., by some act yet to be passed) constitute a body of actual subsisting legislation on the 30th day of June. This conclusion—clear enough on gene. ral principles—is fuily borne out by the Supreme Court in the late case of
Wood vs. the United States, and by the act of 1841 in pari materiâ. This being incontestably the effect of the first section by itself, the ques. tion is, What change is made in it by that clause of the fifth which is recited above?
I need scarcely premise that two sections of the same act must be read together, and both must stand if they can possibly be reconciled. To construe a subsequent as repealing a former section of the very same act, unless the words are expressly to that effect, is to violate one of the best settled and most obvious principles of interpretation; but there is no such irreconcilable conflict in this case as to call for the nullifying of the first section of an act by a succeeding one. The fifth section contains two distinct provisions The first lays down an actual positive rule that certain enumerated articles shall be duty free; the second (that now in ques. tion) is altogether executory or prospective, and contingent in its effect. It provides (in the spirit of a compromise) for legislation, at the discretion of Congress, in regard both to the free articles and to the articles on which the duties were to be reduced by the first section of the act to 20 per cent. It precludes a false construction that might otherwise be put upon both, from the words of the first and the fourth sections. It shows, in regard to the former, that 20 per cent. was not a fixed inflexible rate to be levied at all events, whether the country needed it or not, but that it was simply a maximum. In other words, that, however Congress were re. strained in regard to the increasing of duties beyond 20 per cent., it should be in foro conscientia free, if experience should prove it expedient to do so, to lower those duties at its discretion. It shows, in regard to the articles enumerated in the preceding section, that they are not to be considered as perpetually exempt, because they are exempted by an act implying in one respeci a definitive compromise, but may at any time, and from time to time, be altered by law, at the discretion of Congress, up to the rate of 20 per cent. In other words, here again it is shown that the object of the act of 1833 is only to impose a maximum.
You perceive at once how perfectly the apparent contradictions of the statute are reconciled by this obvious and natural reading. On the con trary, to adopt the notion that there will be no law at all of force after the 30th June authorizing any collection of duties, is, first, to entertain the supposition that the majority, who conceded with great and avowed reluc. tance even the maximum in regard to protected articles, had been brought not only to agree to that, but to the abolishing of all duties whatever, unless a law could be passed, and approved by the Executive, providing for the future imposition of thon. Instead of having the systein settled by actual legislation past all present doubt, with only a possibility of amend. ing it for cause shown by their opponents, they were giving up to these latter everything, and only reserving to themselves a future chance of get. ting back a part, (less, at all events, than twenty per cent.,) on cause shown by themselves. They were agreeing to concede everything, and to take for themselves only the laboring oar, and the burden of proof, with a view to future legislation. Secondly, a supposition so improbable in itself has the effect to repeal, as we have seen, entirely, the first section of the very same act, and all acts not repealed by it, against every rule of sound construction. There is no ground in the words of the law to authorize, or, more properly, to force, us to adopt such a construction. These clearly import only contingent and discretionary legislation. Con.