Bartram v. Robertson

• Decision Date: 01 January 1883
• Citation: 15 F. 212
• Parties: BARTRAM and others v. ROBERTSON.
• Court: U.S. Court of Appeals — Second Circuit

15 F. 212

BARTRAM and others v. ROBERTSON. ^[1]

United States Circuit Court, S.D. New York.

January 1, 1883.

Dunning Edsall, Hart & Fowler, for plaintiffs. Thos. H. Edsall, of counsel.

Stewart L. Woodford, U.S. Atty., for defendant. R. H. Worthington, of counsel.

WALLACE J.

The demurrer to the complaint presents the question whether the plaintiffs are entitled to recover duties alleged to have been illegally exacted by the defendant, as collector of the port of New York, upon the following facts: The plaintiffs in March and April, 1882, imported several invoices of sugars and molasses, which were the produce and manufacture of the island of St. Croix, a part of the dominions of the king of Denmark, upon which the defendant exacted and collected duties at the rates imposed on sugars and molasses by the act of congress of July 14, 1870, as amended by the acts of December 22, 1870, and March 3, 1875. These acts prescribe the duty to be collected upon all sugars and molasses of designated grades.

Since 1857 there has existed a treaty between the United States and Denmark, one stipulation of which is as follows: 'No higher or other duties shall be imposed on the importation into the United States of any article, the produce or manufacture of the dominion of his majesty the king of Denmark, * * * than are or shall be payable on the like articles being the produce or manufacture of any other foreign country.'

In 1875 a treaty was concluded between the United States and the Hawaiian islands whereby several specified articles, among them being sugars and molasses, but 'being the growth manufacture, or produce of the Hawaiian islands,' were to be admitted to all the ports of the United States free of duty. This treaty was not to take effect until a law to carry it into operation should have been passed by congress. In 1876 the necessary legislation was passed, and, upon due proclamation by the president, the treaty became operative and has ever since remained in force.

The plaintiffs duly protested against the exaction of duties upon their importation, insisting that, by force of the treaties and legislation referred to, their importations, being the produce and manufacture of the dominions of Denmark, were exempt from duties, and no other or higher duties could lawfully be imposed upon them than were payable upon like articles when the growth, manufacture, or produce of the Hawaiian islands. Having taken all the requisite preliminary steps required by statute, plaintiffs brought this action to recover the duties exacted by the defendant. They now rely upon the position that the Danish treaties operates to limit the duties on Danish products to the amount collectible under the Hawaiian treaty upon Hawaiian sugar and molasses.

The consideration of the case will be simplified by assuming, without extended discussion, that the stipulation of the Danish treaty is operative and controlling, except so far as it has been annulled by the subsequent laws of congress. When the provisions of a treaty by their terms, or by reasonable implication from their subject-matter, require legislative action to carry them into effect, they do not operate of themselves. The Danish treaty contained two stipulations, in separate articles, that required the payment of money on the part of the United States. The other stipulations, including the one under consideration, could execute themselves. Congress made the necessary appropriation for the payment of the moneys promised. 11 St.at Large, 261. No further action on its part seemed necessary, and its silence when the subject was before it is significant as a legislative construction that it was not required to speak. That congress had the power to annul this treaty, so far as it might have validity as a rule of municipal law, is not disputed. Both treaties and acts of congress are, under the constitution, the supreme law of the land, and each are of equal authority within the sphere of the constitutional power of the respective departments of the government by which they are adopted; therefore the treaty or the act of congress is paramount, according as it is the latest expression of the will of the law-making power. Ropes v. Clinch, 8 Blatchf. 304; Taylor v. Morton, 2 Curt.C.C. 454; Gray v. Clinton Bridge, Woolw. 150; Cherokee Tobacco, 11 Wall. 616.

Assuming the stipulation of the Danish treaty and that also of the Hawaiian treaty to be completely operative, the question in the case may, in one aspect, be considered as one of construction, to ascertain the meaning and result of several laws, adopted at different times, relating to the general subject of duties to be imposed on importations from foreign countries. By the earliest law, the Danish treaty, all importations, the product of the Danish dominions, are to be free from the payment of higher duties than may be...