NORTH GERMAN LLOYD
S. S.
co. .,. HEDDEN.
17
topped himself from asserting title against complainants, is entitled to a decree quieting his title against the claims now sought to be enforced by defendant,. and enjoining Ji'rederick Wehrman from further prosecuting the action of ejectment pending in his name.
NORTH GERMAN LLOYD S. S. CO. SAME t1.
t1.
HEDDEN, Collector.
MAGONE, Collector.
(OircuA.tCouTt, D. New Jersey. May Ill, 1800.)
L
Act Congo ;Tune 26.1884, § 14, which levies a duty of 8 cents per tbn on all.vessels "trom any foreign port or place in North America, Central America, the West India islah4s, the Bahama islaMs, the Bermuda islands, or the Sandwich islands, ot Newfoundland," and, a duty of 6 cents per ton on vessels from other foreign ports, does not entitle German vessels sailIng from European ports Wenter our ports on payment of a duty of 8 cents per ton. under the treaties of December 20, 182'7. and May 1, 1828. which stipulate that the United. States shall not . flivor regarding commerce or naVigation to any other foreilPlllation . which'sliall not immediately become common to GerlDsnY,slnce the discrlminatlon cPJ;ltsined in said act is me!-'ely geographical, and the 8-cent rate applies· to ves., selS 'of all nations ooming from the privileged ports. ' TREATIES-EFFECT OF INCONSISTENT ACT OF CONGRESS.
CUSToMS DUTIES-CONSTRUCTIONOF
TAX.
II.
Whelie,an act of congress is in conflict with a prior treaty the act must oont.rol, since Iti& of equal force with the tteaty and of later date. i .
,
S.
CONSTITUTIONAL LAW-CoMMISSIONER OF NAVIGATION.
Act July 5. 1884, § 8, which makes final the decision of the commissioner of DSvigatlOn on all questions "relating to the collection of tonnaKe tax., and to the refundIng of such tax, when collected erroneously or illeKally," is constitutional.
At Law. Samuel F. Bigelow and Hemry a. Nevitt, for plaintiff. Howard W. Hayea, Asst. U. S. Diat. Atty., for defendants.
J. The plaintiff, a duly-organized corporation under the W laws of tpe Hanseatic repUblic of Bremen, which is a part of the Gerxnanewpire, is the owner ofa line of ocean steam-ships, plYing regularly between the ports of Bremen and New York, and brings these actions; under section 2931, Rev. St. U. S., to recover the amount of certain'tonnage dues, alleged to have been unlawfully collected from said ships during the period extending from June 26, 1884, to July 28, 1888, ,and w:hile th,e were successiveIy collectors of customs at the last-named port. The vessels cleared from Bremen for New York via§outhllmpton, Eng., stopping at ornear the latter place temporarily; .to cargo and passengers, and to take on board additional cargo, passengers, and mails. The consignees of the vessels paid the duefl, iQ every instance,. under protest, and the plaintiff appealed to the secretllry of the· ,treasury, and finally; at. the suggestion of the latter officer ang of department of justice, brought these actions to determine the authority 9£ tile dl;lfendaQfs. . . . . v.43F.no.1-2 .
· FBDERAL REPORTER"voL
48·.
«
THe"right:ot' theplaintitf toreooverdeperids upon the followmgstatementof the law faots:Prior,to .the act of congress of June ,26',
"An act to remove certain burdens on the American merchant marine and encourage the American foreign carrying trade, II tonnage tax was imposed upon German and all other vessels arriving in the United States from foreign' ports, at rate of 30 cents per ton per annum, and up to July 1st, of that year, it had been collected in a lump Bum for a year at a time. But section 14 of the act of 1884 changed the rate..an'd'mode of collection as .fOllb'ws: . ., "That in lieu of the tax qn tonnage pf thirty cents per ton per annum, heretofore imposed by law, a duty of three cents per ton, not to exceed in the aggregate fifteen cents per ton in anyone year, is hereby imposed at each entry on all vessels which·sbaIl be entered in any'port UjDthe United States from any foreign port or place in North America, Central America, the West India islands, the Bahama ialands, the Ber.muda islands, i8\adutyof aix: cents per tob, not1toexceed thirty centsj'rrtori per annUm, is hereby each be entered in,the United any otl:ler"forelgn ports." 23 U. S. St.57. ; .' .' , . section .11' of the act une 19, 1886J entitled" An act to abolishaertain fees," etc. 24U. S. St. 81. Tl'uhl.inendment con&i'sted in adding those just quoted: . ..',' , . , . , t,.,:, , , ' " ' . . '. , . , ' . .' . '''Not, however, to includevessela in or not eng/1.g.edlntrade: provided, that the president of tbe UnIted' States; shallsnspend the collection Of 80 much'of"the duty hereinhnposed onvassels entered from any foreign port 'as expess of tbetonnage dues,dt 'equivalent tax M'taxes; imposed in ssidport on American vessels, by the government of the foreign country in which such port is situated, and shall, upon thE) pas· sage of this act, and from time to thereafter as often as itniay become necessary, by reason of changes in' the laws of the foreign 'oountl'ies above potts' to which such'.sulipension shall mentioned,indicate by apply, and the rate or rates of tonnage duty, if any, to be collected nnder such further,tbat su<;hproclamation shaP!-Elxclllde from.the 'benefitS.O! tbe suspensidn hereinauthQrized, the vessels of anJ 'foreign coun. try hi wMse'ports the fees 01' duesohny, kihdor nature imposed on vessili's of the UnitedStates,or the import or exiJort duties on l.heir cargoes,are hi excess of the fees, dues, or duties imposed on the vessels' of the country'in w·hich ·such port is situated, or on the cargoes of such vessels; and sections lmd 42U apdso muchof section 4219. of the Revised Statutes as conlliet this are hereby ,..,: ,'" . ',' ' . ' ', "Section 4219, tit. 48,'0.3, Rev. St., referre,d to inihefotegoingsubprpviso, provides that" nothing in this section shall be deemed" * ' to impair any rights * ** and treaties of the United States ie1atitido thedutyof torin:age on ves$els." 'Section 4227 of the title and chapter is in these 'words: ' . y'; " . " , ,:;.' · . ,' ,::.: ,';', ' U : .c()ntaipe<;l in t)lis title shalt be in any impair any arid which have been Qr'tl1aj; be acquired by any foreign titm under the' laws and treaties of the Unite4' States, .relative to the dut, tonnage of vessels, or any other duty on ' . ,.,. · . , ' ! . f"".
NORTH GER)fANLLOYD S.S. 00. V. HEDDEN·
19
. . By article 9 of the treaty of December. 20, 1827, between the United . States and the Hanseatip republics, "the contracting parties * * * engage mutually not to grant any particular favor to other nations, in respect of commerce and navigation, which shall not immediately become common to the other party." Public Treaties, 400. Article 9 of the Prussian-American treaty of May 1, 1828, (Pub. Treaties, 656,) contains a like stipulation. These treaties have been held by both the American ,and German governments to be valid for all Germany. On the 26th of. January, 1888, the president, in virtue of the authority vested in him by section 11 of the act of June 19, 1886, issued his proclamation, wherein, after reciting that he had received satisfactory proof that no tonnage or light-house dues, or any equivalent tax or taxes whatever, are imposed upon American vessels entering the ports of the German empire, either by the imperial government or by the governmep.tsof the German maritime states, and that vessels belonging to the United states are not required, in German ports, to pay any fee or due ofanyldnd or nature, or any import duty higher or other than is payable by Qerman vessels or their cargoes, did" declare and proclaim that from and alter the date of this my proclamation shall be suspended collection of the whole of the duty of six cents, per ton * ** upon:vessels entered in the ports of the United States from any of the ports of. the empire of Germany, * * * and the suspension hereby declared and proclaimed shall continue so long as the reciprocal exemption of vessels belonging to citizens of the United States and their ca,rgoes shall be continued in the said ports of the empire of Germany, and no longer." The commissioner of navigation, in his circular letter No. 19;dated February 1, 1888. and approved by the secretary of the ,addressed to ,the collectors of customs and others, decided that thepresident1s proclamation does not apply to vessels which entered before the date of the prOclamation,. and that only those German vessels "ardving directly from the ports of the German empire may be admitted under the proclamation without the payment of the dues therein meJationed. " The comlllissloner of navigation claims authority tq make thlS decision by virtue of section 3 of the act of congress of July. 5, 1884, entitlj:ld "An act to constitute a bureau of navigation in the treasury departIp.ent," which reads as follows: , "That' thecommissionerof navigation shall be charged with the supervIsion of· the laws ft'latingto the admeasuremt'nt of vessels, and the assigning of signal letters thereto. and of designating their official Dumber; and on all qUt'stiuDS of interpretation, grOWing out of the execution of the laws relatingto these subje<:ts, and relating to the collection of tonnage tax, Knd to the of suOh tax when ,collected erroneously or illegally, bis decision shall D\1I/' , The pJaintifi"svesseJs were German vessels, and on the 19th day of Jun'e, 1'886"and ther,eafteI" until now, the government of exactEld 'no' tonnagetaxortaies whatever on vessels of the United States arriving in Genpap. ports.·,
FEDERAL REPOnTER,
vol. 43.
i Updn this staten1ent of the law and the facts, the plaintiff's'cotinsel (1) that as to the dues collected between June 26, 1884, and June 19, 1886, the plaintiff's vessels should not have been charged more than the lower rate of tonnage tax fixed by the act of 1884, under the favored nation clause of the treaties, whereas the defendants charged six cents per ton; (2) that the dues collected after the passage of the actof June 19,1886, and prior to the president's proclamation, were excessive, for the same reason; (3) that no tonnage tax whatever could be lawfully collected of the vessels of the plaintiff, after the passage of the aet Df June 19, 1886, because that act went into effect immediately, and without waiting for the president's proclamation; (4) that the act of July 5, 1884, in so far as it confers on the commissioner of navigation the power of deciding finally on all questions of interpretation,gl.'owing out of the execution of the laws relating to the collection! df tonnage tax, and 'the refl1nd of the same when illegally or erroneously collected, is unconstitutional and void. "" As introductory to their argument, plaintiff's counsel referred to the governmentihirelation. to subject It IS clanned, has been from the begmnIng to estabhsh entlre reOlproClty with otherJnations. The practice has been to ask for no exclusive priV'ilegesandto grant none,/"but to offer to all nations and to ask from them entire reciprocity in navigation. " 1 Kent, eomm. 34, note. This policy has been judicially recognized by the supreme court in Oldfield v. Marriott, 10 How. 146; and it is asserted that congress had it in view in enacting the acts of 1884 and 1886, imposing the tonnage taxes. The review· presented by counsel of, the legislative and dii)lomatic corresP9ndence touching this subject is historically interesting and instructive, and would be persuasive in the case of a doubtful meaning of an act of congress, but it cannot be held to affect the interpretation of laws which are plain and unambiguous in their terms. The questions before the court must be determined by the ordinary and well-settled rules applicable to the construction of and validity of statutes. , Soon after the passage of the act of June 26, 1884, claims were presented by the government of Germany, and of other foreign powers, having similar treaty stipulations with the United States, in relation' to navigation for the benefit of the three-cent rate of tax, under the favorednation clauli\e. The claims having been refened to the department of justice. the attorney general, on the 19th of September, 1886, gave the following opinion: . ,"The discrimination as to tonnage duty in favor of vessels sailing from the regions mentioned in the act, and entered in our ports, is,I think, purely geographical'in character, inilring to the advantage of any 'vessel of any power that may choose to fetch and carry between this country and nny port' em!;>rMed by the fourteenth section of the act. I see no therefore, to !llairllthat there is anything in the most· favored·nation plause' of the treaty this country and the powers mentioned thateQtitles them to have the' privi!t>ges of the fourteenth' section extended to their vessels sailing to' this country fmln ports outside of the limitations of the act," "
NORTH GERMAN LLOYD S. S. CO. ,. Hll;DDEN.
21
The construction thus given to the statute is clearly consistent with its terms, which grant the privilege of the minimum tax to all vessels from certain specified foreign ports, and not entered in United exclusively to the vessels of nations to whom those ports belong, or in whose territories the ports are situate, excepting the vessels of those governments only which, in the imposition of tonnage taxes, discriminate against American vessels. In accordance with this construction, it follows that no particular favor is conferred on any nation, and that, with the exception noted, the vessels of all nations coming from the privileged ports are entered in the United States on an equal footipg. Further discussion on this point would seem, therefore, to be fruitless; but it may, be proper to,observe that the construction of both the act of June 26, 1886, and the complicated queE\tions grow- , 1884, and of that of June ing out of the claims of foreign governments, for the lower rate of ton-' nage tax by ,virtue of their treaty rights, were brought to ,the attention of congress by the president's message of January 14, 1889, transmit- , tiJ!g, a repprt of the secretary of. state in reference to the iJ;l.ternational . qqestions arising from the imposition of differential tonpfLge dues upon, entering the Uni.ted States from foreigncountrie,s.; ;Ex. Doc. lfouse Rep., 5Qth Congo ,3d Sess. The repo.rt, after lDentioning the cll;l.iW!? ofJhe German minister for a reductiPll of tax under the a,ct, of 1884, and for a proper refund of the dues charged on German shipa ent 'l'ing the United States fr0In German POl';ts sinCe the date of the aot of 1886, stated: "To this suggestion the undersigned was unable to re-, spond, the matter being one tor the consideration of congress. But the' request assuredly deserves equitable consideration." In respect to the , claim now made by the plaintiff, that the course of its ships coming'; from Brerneh to New York by the way of Southampton is not such as . to deprive therun of its character of a voyage from a German port to a ' port in the United States, within the meaning of the act of report says: . , ' "But'it bas been held by the commissioner of naVigation that the voyage '. cahn6t be so regardf'd.and'that the vessels must pay dues as coming from Southampton. a British port. Similar rulings have been made in respect to ot,her vessels of different nationality."
And the report further adds: " Another instance of is that of a vessel starting from. \Yewnl say, a 6-30 cent port, and calling on ber way to the United States at a 3-15 cent port. and a free port. Other combinations will' readily sug- . gest themselves. and peed not be stated. But in each case the vessel is re,quired to pay the highest rate. without to the amount of cargo obtained at the various ports from which she comes. +hus a penalty may practically be imposed in many cases on indirect voyages. is conceived in, many instances the main purpose of the act may be defeated bY.these rulthat the law cqntains ,nq prov.sionto meet " such cases. '... ... ... This appears to be a proper subject for ,thecons.dllr- .. ation of congr!,!ss." ;. ,: "; ,;'
';
\.'
.
..
;,
_.
-
will be.. ··
22"
I'EDERAL R:Epl:n:ttlhn I
vol: 4 8.
be addressed to the political, and not to the bI'anch'of the government, and that oongress alone could be looked to for the'Tedress Of the class at wrongs complained of by theplahitift', and to prevent their 'repetition. TheplaintifJ's counsel deny the! of the construCtion given to the act of 1884 by the attorney general, and insist thaHbedift'erence in tonnage rates, by which certain ports speciallynamed in the act are favored, is particular favor tathe countries to which those ports belong, "in respect to their comm.erce and navigation" which ipaofa'Cto accrues, in pursuancebftreaty rights,to German vessels coming fronI German ports. It is also asserted tha.t the treaty stipulationswithGermany are paramount to: the later ,acts of congress, and that the :former cannot be annihilated by the latter. Admitting for the momenHhlltthe attorney general'may have mi&construed the act, still it cannot :be questioned that, excepting where rights have/become vested under a treaty, to use tbe of Judge SWAYNE, in the Cherokee TobaccoOue,l1 Wall. 616,"a treaty-may supersede a prior act of congres!!, and'an act of congress may supersede a prior treaty." The commissioner of navigation held that the acts of 1884 and 1886 were inconsistent wIth the treaties, and being of a later date must prevail, and in so ruling' he is not without authority' of adjudged, cases. In Foster v. Neilwn., 2 Pet. 314, Chief Justice MARSHALL, in delivering the opinion of the court, said: "Our constitution declares, a treaty to be l\ law of the land. It Is consein courts of justice as t'quivalentto an act of the It'gquently slatul'a; Whenever it operates of itself. without the aid of any legislative provision. But when: the terms of the stipulation import a contract. When eitherof ,the parties engage to perform a particular aet. the treaty addresses itself to the political, not the judicial, department and the, legislature wust execute thec()ntract before it canbecom6'a tule for tbe coUrt." .The same is held inTaYu;;. v. Morton, 2 454; Ropea v. Clinch, S Blatchf. 304. In' the Oherokee Tobacco Case, supra, there was an open conflict. between a treaty contractand a subsequent law, and the was as to which should' prevail. The 107thsection of the intern31 revenue,fl,Qt of July 20, 1868,pl'ovided "that the internal revenue, laws imposing taxes on distilled spirits, .fermented liquors, tobacco, snuff, and cigars shall be construed to extend to such ariiclesproduced anywhere withirlthe exteriorbo)lndarie!'\, pf the whether the same be within ,a, collection or not." The tenth article of the treaty of 1866 ,between the United States and the Cherokee Nation of Indians stipulated as follows: . . ,,, Every Indian and freed person residing in the Cherokee Nation shall have the right to sell any products of his farm, inclUding his or her livestock, or any. merchandise manufactured products, and to ship and drive the saine ro market without:testrainL. pa>;ing the tax: thereon which is now or may 'be levied' by the United !:States on' the quantitY,sold outside of the Indian 'ferritory." i . , ' . '" . The collection officers bad seized a quantity of tobacco belonging to the'cltiim811tff'W'hich'was'foand in the Cherokee Nation, outside of any collection distriet' of. the ''U:nited States, 'and exemption from duty was
fet,red
a
NORTH -GJl:RMANLLOYD B. S. CO. tI. BEDDEN·
. virtue of the treaty. It was adm.itted that the' repugnancy .between ,the treaty and the statute was clear, and that they could not stand. together; that one or the other must yield. Thecourtdeeided that the Janguage of the section was as clear and explicit as could be employed. It embraced indisputably the Indilm Territory, and congress not having' thought proper to exclude them, it was not for the court to make the exception; and that the consequences arising from the repeal' of the treaty' were matters for legislative and not judicial action, and if a done, the power of redress, was with congress and not wrong with the judiciary. In Taylm' v. Morton, the facts were these: Article 6 of the treaty of 1832, with Russia, stipulated that "no higher orother ,duties shall be imposed upon'the importations into the United States of any article the produce or manufacture of Russia, than are or shall be payableion the like article being the produce ormanufacture of any other foreign country." This was held by the court to be merely anagreement, to be carried into effe.et by congress,. and not to be enforced by ,the court, and that an act of congress laying a: duty of $25 a ton, on ,hemp from India, and $40 a .ton, on hemp from other countries, did not authorize· the courts to decide that Russian hemp should be admitted at the lower rate. Such ll. prorriise, it was said, 'addresses itself to the rip-d Dot to the department of the, government, and the .courts cannot try the question whether ithaabeen .observed or not. 'The court expressly declined togive any opinion on the merits of the case, hold,ing that the questions, whether treaty obligationshave,heen kept or not, 'and whether treaty promises shall be withdrawn or performed, are matters that belong to diplomacy and legislation, and. not to the administration of the laws. If congress has departed from ,the treaty, it is itn_nil1terial, to whether the departure was accidental or designed, and if the latter whether the reasons therefor were good or. bad. !f,by the act in qUf!stion, they have not departed from the treaty, the plaintiff has no· Case. If they have; their act is the municipal law of the coun'tty, andariy complaint, either by the citizen or the foreigner, must be )naoeto those who alone are empowered by the constitution to judge of its gro;unds and act as may be suitable and just. '. As to the time when the act of June 19, 1886, went into operation, whether immediately from and after the date bf its approval, or not until the date, of the president's proclamation, and also whether the voy-ages'of the plaintiff's vessels from Bremen to New York must be made :ffdirElctly," and without stoppage at an intermediate pOJ,'t, in order to be exempted from the imposition and payment of tonnage dues, the -decision 'of these questions by the commissioner of navigation must be held to be concb:isive, unless so much of section 3 of the act of July 5,1884, which >makes his decision final in such matters, is unconstitutlonaL . Much arid ability have been employed by plaintiff's counsel t6 estab.1lsl,t. the invalidity of this portion of the act, which invests ad,epartinent Q6lcer with such unlimited judicial p'ower,and by which heia AilI'\l;\ble!l 'to decide all contests in relation to allegedillegalduell,el:pa1'te,iandabsolutely. On the other hand, the labor and ,responsibility of the court
J'EDERAL REPORTER,
vol. 48.
,have been increased by the omission.of the. defendant's counsel to fur.nish any assistance towards the solution of the questions, and permitting them to pass BUb Silentio. The subject, however, is not res integra. In (Jary v. Curtis, 3 How. 236, the supreme court had under cO,nsideration the constitutionality of the third section of the act of congress of March 3, 1839 i entitled "An act making appropriatioris for the civil and diplomatic expenses of the government for the year 1839." by which the secretary of the treasury was authorized to finally decide when more duties had been paid to any collector of customs, or to any person acting as such, than the law required, and -to draw his warrant in favor of the person or persons entitled for arefnnd of the amounts so overpaid. The opinion of the court discusses very ably and at much length the questionsinvolved in that case.. A few sentences taken from the opinion will'indicate the grounds upon .which the validity of the act of 1839 ,was sustained: : "We 'no doubts [saythecourt]of the objects or the import of that ailt.We cannot doubt that it constitutes the secretary of the treasury the .sourca whence instructions are' to flow; that it controls both the position and the ot.: the collectursof the revenue; that it has denied to them any right;or authority to retain any portion of the revenue for purposes of contestationo:.-indemnltYi has ol'dered and declared those collectors to be the mere organs of rpceipt and transfer, and has made the of the treasury departnil:'ntthe tribunal for the examination of claims for duties said to have been impropei'lypaid. ... ... .... It is contended, however, that the language and the purposes 9f congress, if really what we hold them to be declared in the statuteQf 1889, cannot be sustained, because theywQuld be repugnant to the constitution, inasmuch as they would debar the citizen of his right to,resort to the courts of jnstice. .... ... ... The objection above referred to admits of the most satisfactory refutation. This may be in the follOWing positions, familiar in this and in most other governments. viz, that the government, as ageneml rule, claims an exemption from being sued in its own courts. Thatalthollgh, a8 being charged with the administratio!,! of tbe.lawB, it will resort to·those courts as means of securing this great end, it will not permit itself to be impleaded therein, save in instances forming conceded and express exceptions. .Secondly, in the doctrine. so oftt'n ruled in this court, that the jndicial power of the Un'ited$tates, although it has its origin in the constitution, is, (exct'pt in enumerated instances, applicable exclusively to thi's court) dependent for its distribution and organization, Md for the modes of its exercise,entirEjly upon the action of congress. who possess the sole power to the supreme court) for the of the of creating the tr,ibunals judicial power. and ot investing with either limited, concurrent. or exclusive· .and of Withholding jurisdiction from them in the ex;act degrees and character which to congress may seem proper forthe public good. To deny this pOSition' would be to elevate the judicial over the legislative branch of the government. and to gi've to the former powers limited by its own discretion merely. It follows, then, that the courts created by statute, must look to. the statute as the warrant for their authority. * ... ... The conrtso! the United States are all limited in their nature and constitution, and have not the POW61'S inherent in courts existing by prescription qr by the commj:Hil&w.... * "'Thecourts of the United States can take cognizance only ofliubjects assigned' to them expressly or by necessary iinplication;a fortiori,' they can take no cognizance of matters that by Isware either Qr expressly referred aa aliud ewamen." denied to
NORTH GERMAN LLOYD S. 8. CO. tI. HEDDEN.
This exposition of the origin and extent of the jurisdiction of the courts of the United,States was reaffirmed in Sheldon v. Sill, 8 How. 449, where it was held that courts created by statute can have no jurisdiction but such as the statute confers. The right given by section 2931, Rev. St., to sue for overpaid dues is taken away by the act of July 5, 1884, and the power to determine controversies arising from alleged exactions by collectors is deposited with the commissioner of navigation. Such is the effect of the decisions just cited, and which,as long as they are not overruled by the tribunal which made them, must be obeyed as the law of the land. The authorities referred to by plaintiff's counsel are cases where department officers, in making regulations to be observed by their subordinates, exceeded ·their power, but in no one instance was it pretended that the officer was clothed with the power to make a final decision in contested matters. It was perhaps unnecessary, in view of Cary v. Curtis, and Sheldon v. SiU, that I should have done more than acquiesce in the doctrines there announced, and support the validity of the act of July 5,1884, without further discussion, but the large amount of money involved in the present actions, and the earnestness and force with which the plaintiff's claims have been pressed, have induced me to make a more extended presentation of them than was at first designed. It must bebarne in mind that this court is n0t called on to express any opinion on the justice or expediency of placing such unlimited power in the hands of the commissioner of navigation as is conferred by the act {)f July 5,1884. The duty of the court'is to discover whether the act is in conflict. with the constitution, and, on being satisfied that it is not; to judge accordingly. To pursue any other course would be not only -extrajudicial, but also improper, in assuming to criticise the wisdom of congress in making the law. Neither is the court required to say whether the commissioner of navigation is or is not correct in his interpretation {)f tbelaw. Congress has seen fit to constitute him the final arbiter in certain disputes, and congress alone can supply a remedy for any wrong which may have arisen from his construction of the law relating to the collection of tonnage due. Let judgment be, entered in each case for the defendant.
DDERAL REPORTER, \
vol. 43.' CO.te
.': f).
UNITE]) STATES
MicHIGAN CENT. R.
al. 1
(Dl.strict Oourt, N. D. Rtirio'l8. June 28, 1890.· 1. CARRIns--1NTB1ISTATE COMMERCE-REBATES. i Where a railroad company 'which ha, 1lxed a rate of 90 cent!! per bundred for freight ftom Chicago to, New York, and 22 cents per hundred'for freight from points' 'West Of Chicago to New York, of which latter rate saidoompany receives 18 cents, arrangement with a to ship its freigllt from Chicago to New Yorlt at 22 cents under bills of lading purporting to comefrom western points, and to return to them 4 c,ents under pretense of paying it to the road bringing the freight into Chicago, it is guilty of a vIolation of the provision of the interstate commerce act of February 4, 1887, wliich makes it a misdemeanor for a common carrier to charge different rates from those fixed in its schedule.
i
2. 8.urE-ClWilINAL LIABILITY OF OFIIIOERS.
'Where such arrangement was made by the assistant general freight agent, the fact tb, aii,he local freight agent, and, th,e agent who made out the bUls of lading, knew that there was unusual and out of the ordinary course of business in SUch shipments, is not sufllClent notice to them that the company was v10iatiIlg , said act to make them criminally liable therefor.
At Law. , W. G; })wing, U. S. Dist. Atty., for plaintiff. Edwin Walker and Mills & Ingharn, for defendants. , BLODGET1', J. This isacriminal proceeding instituted under certain provisions.ofthe interstate commerce act of February 4, 1887, and, the the offense charged being only a misdemeanor, a jury was waived, and the c8.setried by the court. The indictment contains six counts, charging, in substance, that the Michigan Central Railroad Company was in September, 1888, and for three months succeeding, a common carrier Of passlmgers arid property, owning and operating a railroad from Chicago, in ,the eastward to Detroit, in the state of Michigan, and from thence'bllving connections, by mlla.ns of other railroads, with New York city, cities on the Atlantic coast. The said Michigan Ceptral P.ailtdadCompany had fi:x:ed and published a schedule of rates for thetransportatidn of passengers andr property over its road, and also a schedule of rates for the transportation of passengers and property by way ofits railroad and its connection with other carriers to New York city, in the state of New York, and that by such schedule of rates the rate for the transportation of grain from the city of 'Chicago to the city , of New York was fixed at 20 cents per hundred pounds,-copies of which schedules had been filed with the interstate commerce commission,whereby it became unlawful for said company to charge, demand, collect, or receive a greater or less compensation for the transportation of passengers or property, or for any service in connection therewith, than , was specified in such publiBhed schedule of rates. But that, in violation of their duty and the law in that regard the defendants, the Michigan Central Railroad Company and Alexander Mackey, Fred. C. Nicholas, Matson P. Griswold, Arthur W. Street, and E. L. Somers, who were
IReported,by Louis Boisot, Jr., of the Chicago bar.