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Title: Ebenezer Rockwood Hoar to George S. Boutwell, 6 July 1869

Date: July 6, 1869

Whitman Archive ID: nar.01963

Source: National Archives and Records Administration. Transcribed from digital images or a microfilm reproduction of the original item. For a description of the editorial rationale behind our treatment of the correspondence, see our statement of editorial policy.

Contributors to digital file: Elizabeth Lorang, Kevin McMullen, and John Schwaninger

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July 6, 1869.

Hon. Geo. S. Boutwell,

Secretary of the Treasury.


I have considered the questions submitted to the Attorney General by the letter of the late Secretary of the Treasury, dated December 30, 1868, relating to the case of Brulatour & Company. I do not desire, unless the Department expressly requests it, to give a formal opinion in this case, but prefer to say what I think in the form of a letter.—Of the three questions asked by the Secretary, I will consider the second and third first.

I do not think the transcript of the record exhibits the first question stated by the Secretary in such a manner that it can be considered and determined by the Supreme Court, if a writ of error from that court were now sued out, and I think it impracticable now to attempt to amend the record by asking the Judge who heard the case, to write down a statement of the facts found by him, and of his rulings upon the law, and to make this statement a part of the record, for the purpose of suing out a writ of error thereon. The judgment was rendered December 17, 1864,—and after so long a time, I have no doubt such a request would be denied.

The transcript of the record does not establish an indebtedness of the United States to the defendants in the suit, of six hundred and twenty dollars and forty eight cents, ($620:48,) It does establish that the defendants owe the United States nothing on the bond sued on for the breaches assigned. Even if this had been a suit in which a set off could have been pleaded, and the defendants had actually pleaded a set off, and the Court had been of opinion that, on striking a balance, the United States were indebted to the defendants, the court could not have rendered a judgment against the United States, (United States, vs. Eckford, 6 Wall, p. 484.)

It is very likely that the Court held that the merchandise imported was not liable to the fifty per centum additional duty imposed by the joint resolution of April 29, 1864; and that, if, in the case of overpayment of unascertained duties a suit could have been brought against a collector, to recover back the amount overpaid, and such a suit had been seasonably, brought against the collector in the Circuit Court of the United States for the Eastern District of Louisiana, that Court, in such a suit, would have rendered judgment against the Collector who received the unascertained duties in this case, for six hundred and twenty dollars and forty eight cents and costs. Such a judgment, if the money received by the Collector had been paid into the Treasury of the United States, and if the Court had granted the certificate mentioned in Section twelve chapter seventy-six, Acts 1863, and if there were a proper appropriation therefore in the Treasury, the Secretary of the Treasury would be bound to pay, whether he thought it right or wrong. But this would not necessarily compel the Secretary to assent to the opinion of the Judge upon the question decided in the case, or make that opinion in other cases, whether before the Department, or pending in the same, or other courts, a rule of administration for the Department. It is for the Department to determine whether it will, or will not, adopt, as a rule of administration, the decision of any circuit or District Court. If unable to coincide in opinion with any decision made by a court, it can decline to adopt, it as a rule of administration until the same question has been in other cases submitted to the same or other courts and a general uniformity of judicial decisions established, or until a decision of the Supreme Court of the United States has been obtained. The Court in this case dismissed the petition with costs.

If there is any law authorizing the Court, in a case like the one stated, to adjudge costs against the United States, it is unknown to me, and I have no doubt that this part of the judgment would be reversed on error, if it were thought worth while to prosecute a writ of error merely on account of the costs, (United States, vs. Hooe, et al. 3 Cranch, 73-92; The Antelope, 12 Wheat, 546, 500; U. S. vs. Boyd, et al., 5 H. 29.) Perhaps if the attention of the Circuit Court were called to this error in the judgment by the District Attorney, that Court would correct it.

The real claim of Brulatour & Company is, I suppose, that the Secretary of the Treasury must hold that, their merchandise was not dutiable, under this joint resolution, and that they have paid more money into the Treasury for duties on this importation than the law requires, and that the excess should be paid back.

It is for the Secretary of the Treasury to decide, in the first instance, whether this is so or not,—and to give such weight as he sees fit to the probable opinion of Judge Durell; and the opinion of any Judge is certainly entitled to great weight in determining the meaning of any law.

In the first question, the Secretary asks the opinion of the Attorney General, whether he thinks the importation of the defendants was dutiable under this joint resolution. It is understood that cases are now pending in the Circuit Court of the Southern District of New York in which similar questions are involved. The fact that a question of law arises in a suit pending in Court is ordinarily a reason why the Attorney General should not give an opinion to a Department thereon, but leave it to be decided by the Court, so far as that case is concerned. But it is also understood that it may be a long time before these cases in New York can be heard and determined—and the Secretary desires the opinion of the Attorney General, that he may decide whether to prosecute, or abandon these suits.

The joint resolution of the 29th of April, 1864, (13, Stat, p. 405,) went into effect on the day it was approved by the President (Arnold, vs. United States, 9 Cranch, 104.) An importation of merchandise is complete when the vessel with the merchandise voluntarily arrives within the limits of a port of entry of the United States, with the intention of unloading her cargo there, and the right to duty attaches from the time of such arrival, and not from the time of the entry of the merchandise. (Arnold, vs. United States, 9 Cranch, 104; United States, vs. Lyman, 1 Mason, 484; United States, vs. Lindsey, 1 Gall. 365; Prince in error, vs. United States, 2 Gall. 204; Meredith et al. vs. United States, 13 Peters, 486; Perots et al. vs. United States, 1 Pet. C. C. p. 256; United States, vs. Vowell, et al. 5 Cranch, 368.)

It is not necessary to consider the effect of the joint resolution of June 27, 1864 (13 Stat. p. 411.) or of Chapter 35, Acts of 1865, (13 Stat. p. 429,) or of section 20, Chapter one hundred and seventy one, Acts of 1864, (13 Stat. p. 216,)—as they are immaterial to this inquiry. The merchandise in question was imported on the 26th day of April, 1864, and entered on the 2d day of May, 1864.

The case of the United States vs. Lindsey, (1 Gall. 364,) seems to me to settle this case. In the joint resolution of April 29th, I think the words, "all goods, wares, and merchandise imported shall be added to the present duties and imports now charged on the importation of such articles," mean all goods, wares, and merchandise imported after the passage of the resolution. Congress has the constitutional right to levy duties on merchandise already imported, but still in the custody of the Government, either in public stores or bonded warehouses. But if it sees fit to exercise this right, it must do so in plain terms.—When this has been done in Acts increasing the rates of duty, a certain time has usually been granted to withdraw merchandise from bond at the previous rates of duty. (See Section 21, Ch. 160, Acts of 1862, 12 Stat. 559.)—But when a statute imposes additional duties on merchandise imported, it has always been held that the merchandise must be actually imported after the passage of the Act, to be subjected to the additional duties. Merely landing, or entering merchandise, or permitting merchandise to remain in public stores, or in bonded warehouses, is not an importation. The rule, adopted by the Department in its circular of May 3, 1864, so far as it relates to this case, amounts to this, that if on the arrival of the merchandise on April 26, 1864, the defendants had landed it without entry and without a permit, in addition to the penalties imposed for such action, the defendants would have been liable to pay duties at the old rate—but because they entered the merchandise as they were bound to do, and the entry was made after April 30th, but within the time allowed by law, the defendants by this entry became liable to pay fifty per cent, additional duties.—The meaning of substantially the same words used in this Resolution, had been many times determined by courts before the Resolution was passed; and if Congress had intended the resolution to apply merchandise imported before its passage, but remaining on shipboard at the time of its passage, or entered afterwards, they would have used apt words for that purpose.

I do not think the merchandise of Brulatour & Company is liable to the additional duties imposed by this joint resolution.

I have the honor to be,

Very Respectfully,

your obed't serv't,

E. R. Hoar,

Attorney General.

Brulatour & Co's case.


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