237 U.S. 19 (1915), 616, Thames & Mersey Marine Insurance

Docket Nº:No. 616
Citation:237 U.S. 19, 35 S.Ct. 496, 59 L.Ed. 821
Party Name:Thames & Mersey Marine Insurance
Case Date:April 05, 1915
Court:United States Supreme Court
 
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Page 19

237 U.S. 19 (1915)

35 S.Ct. 496, 59 L.Ed. 821

Thames & Mersey Marine Insurance

No. 616

United States Supreme Court

April 5, 1915

Company, Limited v. United States

Argued January 13, 1915

ERROR TO THE DISTRICT COURT OF THE UNITED STATES

FOR THE SOUTHERN DISTRICT OF NEW YORK

Syllabus

United States v. Hvoslef, ante, p. 1, followed to effect that the requirement of § 5 of the Tucker Act, requiring the suit to be brought in the district in which claimant resides, is one of procedure which can be waived, and is waived by a general appearance.

Although the government may assert in its demurrer to an action brought in the district court for refund of taxes under the Tucker Act that it appears specially, a demurrer which raises not only the question of jurisdiction of the subject matter of the action, but also that of the merits, seeking to obtain a decision on the constitutionality of the tax, is in substance a general appearance, and amounts to a waiver of objection with respect to the district in which tho suit is brought.

Exportation is a trade movement and the exigencies of trade determine what is essential to the process of exporting.

Insurance against loss is an integral part of exportation, and is so vitally connected therewith that a tax on the policies is essentially a tax upon the exportation as such.

Taxes on policies of marine insurance on exports are within the prohibitions of § 9, Art. I, of the federal Constitution, prohibiting any tax or duty on articles exported from any state, and held that amounts paid for stamps on such policies under the War Revenue Act of 1898 were illegally exacted and recoverable under the Refunding Act of July 27, 1902.

217 F. 685 reversed.

The facts, which involve the construction of § 9, Article I, of the federal Constitution, prohibiting any tax or duty on exports and the validity of stamp taxes under the War Revenue Act of 1898 on policies of marine insurance on exports, are stated in the opinion.

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HUGHES, J., lead opinion

MR. JUSTICE HUGHES delivered the opinion of the Court.

The plaintiff in error is a corporation engaged in the business of underwriting policies of marine insurance. It brought this action to recover the amount paid as stamp taxes upon policies insuring certain exports against marine risks. The taxes were paid under the War Revenue Act of June 13, 1898, c. 448, 30 Stat. 461, and the recovery was sought under the provisions of the Act of July 27, 1912, c. 256, 37 Stat. 240, upon the ground that the tax was invalid, being in substance a tax upon exportation, and hence contrary to § 9, Article I, of the federal Constitution, prohibiting any tax or duty on articles exported from any state.

It was alleged that the policies were issued in the following manner: open policies were executed by the insurance company containing an agreement that the company would insure all cargoes which the insured should ship in the foreign trade during the life of the policies, and that the shipper would procure such insurance, and from time to time would pay the premiums according to the regular rates for the particular voyages. When the shipper had a cargo of goods ready for export, "designated and set apart from all other goods for shipment on a particular ship," he...

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