Tremlett v. Adams.

7th. That the paper hereto annexed marked A, is a true copy of the commission under which D. Nye acted as an officer of the revenue, from the date of the commission till after January, 1849; and that the paper marked B, annexed hereto, is a true copy of an official letter, received by D. Nye from said defendant, at or about the time it bears date, and that the papers annexed, marked C and D, are true copies of official letters received by the defendant from the Secretary of the Treasury of the United States.

Boston, December 13th, 1849.

(The paper marked A was merely an authority to David Nye to act as deputy-collector, inspector, gauger, weigher, and measurer, for the port of Wareham, dated October 3, 1843.

The paper marked B was an authority to Nye, from Adams, under the authority of the Secretary of the Treasury, to warehouse coal, &c., at Wareham, under the Warehousing Act of 1846. But this authority was dated August 22, 1848.

The paper marked C was dated August 27th, 1846, and was a letter from the Secretary of the Treasury to Adams, refusing to allow any article to be warehoused without the limits of a port of entry.

The paper marked D was from the same to same, dated July 5th, 1849, merely saying that the District Attorney had been instructed to defend Adams in the suit brought by Tremlett.)

Upon those facts the plaintiff, by his counsel, requested the court to rule and instruct the jury,

1st. That the right or privilege of warehousing goods at any ports or places within the United States is regulated by the laws of Congress, which specify the ports and places at which, and the manner in which, such warehousing shall be permitted, and that no discretion as to the selection of such ports or places, or as to the manner in which such warehousing shall be allowed, is reposed in the collector, or any other executive officer.

The plaintiff further requested the court to rule and instruct the jury,

2d. That by law there is no distinction as to the exercise of such right of warehousing between ports of entry and ports of delivery, and that if the plaintiff at the time had a right, under the existing laws, to warehouse his goods in a port of entry in any district in the United States, he had equally a right to warehouse them at any port of delivery in such district, upon complying with the requirements of the laws regulating the warehousing of goods.

The plaintiff further requested the court to rule and instruct the jury,

3d. That the plaintiff, being unlawfully prevented from ware

Tremlett v. Adams.

housing his goods as aforesaid, and required to pay duties upon them according to the rates established by the Tariff Law of 1842, ought to recover of the defendant the difference between the amount of duties chargeable under the Tariff Act of 1842 and that under the Tariff Act of 1846, and interest thereon from the time of payment of the several sums.

The plaintiff further requested the court to rule and instruct the jury,

4th. That if, upon the facts, the plaintiff could not recover the whole of the difference between the amount of duties properly chargeable under the act of 1842, and the amount properly chargeable under the act of 1846, he was entitled to recover the sum of $38.86, being the surplus in the defendant's hands over and above the amount of the duty properly chargeable according to the act of 1842. But the court refused to give the instructions so prayed for; but, on the contrary thereof, did rule and instruct the jury that the plaintiff could not maintain his action, nor recover either of said sums of money, or any part thereof; to all which rulings and instructions the plaintiff excepts, and prays that his exceptions may be allowed. PELEG SPRAGUE, [SEAL.] Judge, &c. The jury accordingly found for the defendant, and upon these exceptions, the case came up to this court.

It was argued by Mr. Sherman, for the plaintiff in error, and by Mr. Bibb, for the defendant in error. There was also an elaborate brief on the same side, filed by Mr. Crittenden, (Attorney-General.)

Mr. Sherman, for the plaintiff in error, contended that the court below erred,

1st. In refusing the instructions prayed for in behalf of the plaintiff below.

2d. In the instructions which it gave to the jury.

(The arguments of the counsel upon both sides were founded upon a minute examination of preceding laws, which it would be difficult to compress within reasonable limits, and at the same time do justice to the arguments. The reporter, therefore, confines himself to a mere statement of the points.).

Mr. Sherman united both the above points in his arguments. 1st. That, under the Constitution and laws of the United States, a right existed to warehouse the coal at a port of delivery. 2d. The right to warehouse at the port in question being given by law, the plaintiff could not be deprived of that right by any instructions issued by the Secretary of the Treasury to carry the

Tremlett v. Adams.

act into effect. Sect. 5 of Warehousing Act, 9 Stat. at Large, 53; Tracy & Balister v. Swartwout, 10 Pet. 95; Elliot v. Swartwout, 10 Pet. 153; and Greely v. Thompson, 10 How. 234, decided at the last term of the Supreme Court.

3d. The defendant, as collector of the customs, having deprived the plaintiff of the right to warchouse his said nine cargoes of coal at Wareham, and to enter the same, under the Tariff Act of July, 1846, upon the payment of $1,135.13, the duty imposed on the same by that act, and exacted of the plaintiff a deposit of money, as for duties, amounting to $3,403, the plaintiff has a right to recover the difference, with interest.

4th. Or, otherwise, if it be decided that the duties were legally due under the Tariff Act of 1842, amounting to $3,364.11, the plaintiff having deposited with the defendant the sum of $3,403, is entitled to recover the difference, viz., $38.89, with interest. Boyden v. Moore, 5 Mass. R. 365, 369; Breed v. Hurd, 6 Pick. 356; Whipple v. Newton, 17 Pick. 168.

On the other hand, the counsel for the defendant in error contended that the first, second, and third instructions, as moved, were not according to the law of the case upon the facts established by the evidence, and facts pertinent to the issue, which no evidence conduced to prove, (and are therefore to be considered as not having existed.) They would, if given, have misled the jury.

The first and second instructions moved, misconstrue the revenue laws. Important distinctions between ports of entry and delivery, and ports of delivery only, are made by the laws. The Secretary of the Treasury had a discretion to refuse to suffer coal to be warehoused at ports of delivery only, where no collector, naval officer, or surveyor resided; where the collector of the port of entry had to discharge, at one, two, or three ports of delivery only, annexed to his collection district, all the duties of collector, naval officer, and surveyor; and where, in the opinion of the Secretary, the additional charge of a permanent officer to reside at the port of delivery only, with the rent to be paid for warehouses, would overgo the receipts from storage, and diminish the revenue at such port of delivery only.

The third instruction moved by the plaintiff, when applied to the facts of the case, assumes, in the first place, that the Secretary of the Treasury "unlawfully" prevented the warehousing of the coal at Wareham; and in the next place assumes that, because the collector obeyed the instructions of the Secretary, the defendant became a wrongdoer; and in the third place assumes that the defendant is liable, and, in the language of the count, became indebted to the plaintiff, and promised him to

Tremlett v. Adams.

pay the difference of duty on the coal between the Tariff of 1842, and that of December, 1846.

If the Secretary of the Treasury had been sued as the wrongdoer instead of the collector, the Secretary could have defended and maintained his instructions against warehousing coal at Wareham, a port of delivery only, as being a lawful exercise of a discretionary power confided by the revenue laws existing before the act to establish a system of warehousing, not impaired by that act, but confirmed by its fifth section; which discretionary power so given by the laws, was necessary and proper to the uniformity and efficiency of the system of revenue from the customs, over which the judicial department has no control.

The second proposition assumed by the plaintiff, that the defendant, in obeying the instructions to him as collector, by the Secretary of the Treasury, against warehousing the coal at the port of Wareham, became thereby a wrongdoer, and liable to the plaintiff for damages, would not follow, if it were conceded, that the Secretary of the Treasury, in the exercise of his functions, erred in the construction of the revenue laws, and thereupon issued wrong instructions to the collector against warehousing at Wareham.

The third assumption, as to the amount of the remote consequential damages, would not follow from the plaintiff's first and second premises, if they were conceded.

The conduct of the defendant, as collector, whether he pursued the right line of his duty, or departed from it and became a trespasser, and if a wrongdoer for what damages he became responsible, are matters to be adjudged by the laws in force defining his duties as collector at the time when the plaintiff made his protest against the conduct of the collector; not by the error of the Secretary of the Treasury, whom the law had put over him as a light, a guide, and a buckler; nor by laws which did not take effect until months after the plaintiff's protest; nor by the after voluntary act of the plaintiff himself, of omission or commission.

The fourth instruction moved relates to the sum of $38.86, twice tendered to the plaintiff, and twice refused.

This is certainly a small business, a little matter, a very trifling matter, wherewith the plaintiff hath elected, (after two tenders and refusals,) to engage the time and attention, first of the Circuit Court of the United States, by an action originally brought therein, whose cognizance, as defined by law, is intended to be limited to cases "where the matter in dispute exceeds, exclusive of costs, the sum or value of five hundred dollars," and secondly, the time and attention of this court, whose appellate jurisdiction in such like cases is, by the law. intended to be confined to

Tremlett v. Adams.

matters in dispute exceeding the sum or value of two thousand dollars, exclusive of costs.

If the plaintiff had truly stated his said demand, for the said sum of thirty-eight dollars eighty-six cents, neither the Circuit Court nor this court could have held cognizance of the plea. But by refusing this sum when tendered, and by mixing this matter with his protest about the warehousing, and, by stating his demand at five thousand dollars, he has compelled the Circuit Court and this court to hold cognizance of his complaint.

If the jury had found for the plaintiff the sum of thirty-eight dollars eighty-six cents, then, according to the twentieth section of the Judiciary Act of 24th September, 1789, "he shall not be allowed, but, at the discretion of the court, may be adjudged, to pay costs."

When, upon the facts given in evidence, the plaintiff moved this fourth instruction, that " he was entitled to recover the sum of $36.86," he thereby confined and dwindled his demand to that sum; the court was called to adjudicate as to that sum; to lend its assistance to the plaintiff to recover that sum and no more; a matter far beneath the cognizance of that court.

Mr. Chief Justice TANEY delivered the opinion of the

court.

This is an action brought by the plaintiff against the collector of the port of New Bedford, for refusing to permit the plaintiff to enter for warehousing at Wareham sundry cargoes of coal, imported from Pictou, Nova Scotia, which were shipped for Wareham, and arrived in the months of September and October, 1846. Wareham was a port of delivery in the collection district of which New Bedford was the port of entry; and the collector, in refusing to permit them to be entered for warehousing at Wareham, acted under the directions of the Secretary of the Treasury. The plaintiff was required to pay in cash the duties imposed by the act of 1842, before the permit for landing at Wareham was granted. And this suit is brought to recover the difference between the duties paid and the duties to which the coal would have been liable if it had been warehoused at Wareham and remained in store as the plaintiff desired until the reduced tariff went into operation. The case depends upon the construction of the Warehousing Act of August 6, 1846.

The law is framed in very general terms, referring to other laws for some of its regulations; and containing but few specific directions as to the manner in which it should be carried into execution. And it authorizes the Secretary of the Treasury to make from time to time such regulations, not inconsistent with law, as might be necessary to give full effect to the provisions of