Nelson Elliott v. Samuel Swartwout

• Decision Date: 01 January 1836
• Citation: 10 Pet. 137,9 L.Ed. 373,35 U.S. 137
• Parties: NELSON J. ELLIOTT v. SAMUEL SWARTWOUT
• Court: U.S. Supreme Court

35 U.S. 137

10 Pet. 137

9 L.Ed. 373

NELSON J. ELLIOTT v. SAMUEL SWARTWOUT.

January Term, 1836

ON a certificate of division from the circuit court of the United States for the southern district of New York.

The suit was originally instituted in the superior court of the city of New York, by the plaintiff against the defendant, the collector of the port of New York; and was removed by certiorari into the circuit court of the United States.

The action was assumpsit, to recover from the defendant the sum of thirty-one hundred dollars and seventy-eight cents, received by him for duties, as collector of the port of New York, on an importation of worsted shawls with cotton borders, and worsted suspenders with cotton straps or ends. The duty was levied at the rate of fifty per centum ad valorem, under the second clause of the second section of the act of the 14th of July, 1832, entitled 'An act to alter and amend the several acts imposing duties on imports,' as manufactures of wool, or of which wool is a component part. The plea of non assumpsit was pleaded by the defendant in bar of the action:

The following points were presented during the progress of the trial for the opinion of the judges; and on which the judges were opposed in opinion:

First. Upon the trial of the cause, it having been proved that the shawls imported, and upon which the duty of fifty per centum ad valorem had been received, were worsted shawls with cotton borders sewed on; and that the suspenders were worsted with cotton ends or straps; and that worsted was made out of wool by combing, and thereby became a distinct article, well known in commerce under the denomination of worsted.

The judges were divided in opinion whether the said shawls and suspenders were or were not a manufacture of wool, or of which wool is a component part, within the meaning of the words 'all other manufactures of wool, or which wool is a component part,' in the second article of the second section of the act of Congress of the 14th of July, 1832.

Second. Whether the collector is personally liable in an action to recover back an excess of duties, paid to him as collector and by him, in the regular or ordinary course of his duty, paid into the treasury of the United States; he, the collector, acting in good faith, and under instructions from the treasury department, and no protest being made at the time of payment, or notice not to pay the money over, or intention to sue to recover back the amount given him.

Third. Whether the collector is personally liable in an action to recover back an excess of duties paid to him as collector, and by him paid, in the regular and ordinary course of his duty, into the treasury of the United States, he, the collector, acting in good faith, and under instructions from the treasury department; a notice having been given, at the time of payment, that the duties were charged too high, and that the party paying, so paid, to get possession of his goods; and intended to sue to recover back the amount erroneously paid, and a notice not to pay over the amount into the treasury.'

These several points of disgreement were certified to this court by the direction of the judges of the circuit court.

The case was argued by Mr. Ogden for the plaintiff, and by Mr. Butler, attorney-general, for the defendant.

Mr. Ogden stated, that the question on the first point arose under the second clause of the second section of the act of Congress of 14th July, 1832, 'to alter and amend the several acts imposing duties on imports.' The language of that part of the section, after enumerating a number of articles on which a specific duty is laid, is 'and upon merino shawls made of wool, or of which wool is a component part, and on ready-made clothing, fifty per cent, ad valorem.' In the act, a duty of ten per cent. ad valorem is laid 'on worsted stuff goods, shawls, and other manufactures of silk and worsted, and on worsted yarn, twenty per cent. ad valorem.'

It is contended that the articles imported by the plaintiff do not come under the provision of the law which imposes a duty of fifty per cent. ad valorem on woollen goods; but that the duty is ten per cent. ad valorem, as they are worsted goods, or goods of which worsted is the principal component material.

Congress draw a distinction between worsted and woollen goods. These articles are worsted suspenders, with cotton ends. The shawls are worsted shawls, with cotton borders. Worsted is made of wool, but it undergoes a particular process of carding and combing. It becomes, by the process, 'a distinct article.'

The certificate of the judges states the fact, that although worsted 'is made out of wool, by combing it becomes a distinct article, known in commerce under the denomination of worsted.'

Congress are to be considered as using terms of art and commercial terms, as they are generally used and generally understood. This has been so decided in this court, in the case of the United States v. 200 chests of tea, 9 Wheat. 230. The question in that case was, whether certain tea was bohea tea. It was proved that the tea was, in the common language of commerce, called bohea tea; although it was not in truth so called in the country from which it was brought. If this settles the law of the case, it decides the question in the case before the court: for the articles upon which the higher duties are claimed, are not 'wool' but 'worsted,' and well known in commerce under this denomination. It will then be for this court to say, on the first point; whether the articles are wool or worsted.

The second point presents the question of the personal responsibility of the collector, on the payment of duties to him which he has illegally exacted. The duties thus demanded were paid by compulson. Unless paid, the goods would not have been delivered to the owner, and thus this became a compulsory payment. If the duties were not due, their payment gives no right to retain them.

3. The payment of the illegal duties gave the collector no right to them, and the collector cannot discharge himself by paying over the money. 1 Camp. N. P. 396. This was a case in which money was illegally claimed by overseers, and was paid over to their successors; but they were not protected from personal responsibility by the payment. If it was illegally demanded, it was illegally paid over by the collector. But in the point certified, the fact of a notice having been given that the duties were too high charged, is stated; and the collector was informed that an action would be brought against him to recover back the amount erroneously paid. It is a general principle of law, that, under such circumstances, the money may be recovered back.

The attorney-general, Mr. Butler, for the defendant.

On the first point it is insisted, on the part of the defendant, that the shawls and suspenders were a manufacture of wool, or of which wool was a component part, within the meaning of the words 'all other manufactures of wool, or of which wool is a component part,' in the second article of the second section of the act of congress of the 14th of July 1832. Laws of the United States, sessions 1832, p. 187. In support of which view of the subject, the following reasons are suggested, viz:

1. The articles in question do not come within the third article of the section above referred to, and are not manufactures of cotton, or of which cotton is a component part; and therefore subject only to a duty of twenty-five per cent. ad valorem: but as the cotton borders and cotton straps are merely adjuncts or accessaries to the shawls and suspenders, the entire article is liable to the rate of duty imposed upon that component part, which is most essential for the formation of the entire article, and is of the greatest intrinsic value.

2. The duties upon the articles in question are therefore to be determined solely by the words and intention of the second article of said second section; and as shawls and suspenders are not specifically enumerated, it is respectfully insisted, that they come within the general concluding clause.

3. The tariff act of May 22, 1824, § 1, vol. vii. p. 269, shows he understanding of congress, in their legislation upon the subject, to be, that worsted goods are woollen goods; else, why except worsted goods, eo nomine? for if they were not to be deemed wollen, they could not be included in a general clause relative to woollen, and the exception would be surplusage. Worsted goods, although made of wool which has undergone a different process, to wit, combing, from wool employed in various other manufactures; are still manufactures of wool. The case admits that it is wool prepared to a certain state; and until it can be shown that any other raw material, as cotton, flax, &c. is usually manufactured into the intermediate stage denominated worsted, then it follows that worsted can have no existence, except as a manufacture of wool.

4. Whatever weight might, in a case of doubtful construction, be attached to the consideration, that worsted being made out of wool by combing, 'thereby became a distinct article, well known in commerce under the denomination of worsted,' no understanding, either of merchants or others, can countervail either the express language of a statute, or the meaning of the legislature to be derived from the language they have employed. The language and intention of the statute are so explicit as to preclude the admission of extrinsic evidence for settling their interpretation. In The United States v. Clarke, 5 Mason, 32. Judge Story clearly understands that an article composed of worsted is 'a fabric of which wool is a component material.' Few v. Marsteller, 2 Cranch 23, shows that the general words of a law are not to be restrained by implication, 'unless that implication be very clear, necessary, and irresistible.' The United States v. Fisher, 2 Caranch 386. 'Where the intent is plain, nothing is left to...