Mr. Justice Strong delivered the opinion of duction had been or should have been greater, the court: he was subjected to the required tax on the The 20th section of the act of Congress, ap-quantity of spirits which that ascertained quanproved July 20th, 1868, entitled "An Act Im-tity of materials was capable of producing, and posing Taxes on Distilled Spirits and Tobacco, not merely upon the eighty per centum of that and for Other Purposes," prescribed a mode for quantity. This was the unequivocal language of the ascertainment of the quantity of spirits for the act. Thus the quantity of materials used, which a distiller was required to account in his as ascertained by the assessor, and not the acmonthly returns to the assessor. By a previous tual product of spirits, was made the measure section the distiller was required to make a re- of liability to taxation and of its extent. 188*] turn, but the 20th section made it the This construction of the 20th section is in duty of the assessor on the receipt of the dis- entire harmony with all the other parts of the tiller's first return in each month, to inquire act. The 10th section directed a survey of every and determine whether he had accounted, in his distillery registered or intended to be regisreturn for the preceding month, for all the spir- tered for the production of spirits, in order to its produced by him, and to determine the quan- estimate and determine its true producing catity of spirits thus to be accounted for, it re- pacity. This survey was required to be made quired that the whole quantity of materials by the assessor of the collection district, with used for the production of spirits should be as the aid of some competent and skilful person, certained. It gave also a rule by which the to be designated by the commissioner of interquantity of materials used for the production nal revenue. The mode in which the producing of spirits should be ascertained and settled by capacity of the distillery was to be ascertained, the assessor, and it then enacted that in case as prescribed by the regulations of the commisthe return of the distiller had been less than sioner, was by measuring each mash, or ferthe quantity thus ascertained, he should be lia- menting tub; by calculating how many bushels ble to be assessed for such deficiency, at the of grain, when mashed (if grain was used), the rate of fifty cents for every proof gallon, to- fermenters would hold; by considering the pergether with his special tax of $4 for every cask iod of fermentation, and deducing therefrom of forty proof gallons, which the collector was the number of bushels which could be fermentrequired to collect. It also enacted that in no ed in twenty-four hours. This ascertained, the case should the quantity of spirits returned by assessor and his assistant were directed to estithe distiller, together with the quantity so as- mate the quantity of spirits that could be prosessed, be less than eighty per centum of the duced in the distillery from a bushel of grain, producing capacity of the distillery, as esti- and multiplying that by the number of bushels mated under the provisions of the act. that could be fermented therein in [*190 twenty-four hours, the producing capacity of the distillery was to be ascertained and fixed as a standard of taxation, or rather to determine the minimum of taxation. At all events the distiller was made taxable for a production of spirits not less than eighty per cent of the producing capacity of his distillery, as determined by the survey, whether that quantity was actually produced by him or not; or whether he used a bushel of grain or not. Eighty per cent of the estimated (not the actual) capacity of the distillery was the smallest amount for which he was made taxable. But if he actually produced more, or if the quantity of grain or other materials used for distillation, as ascertained by the assessor, showed a larger production, he was made taxable to the full extent of that production thus shown. No other interpretation can be given to the 20th section. The next preceding section (the 19th) made it the duty of every distiller on the 1st, 11th and 21st days of each month, or within five days thereafter, to render to the assistant assessor an account in duplicate, taken from books he was required to keep, stating not only the number of wine gallons and of proof gallons of spirits produced and placed in warehouse, but also the quantity and kind of materials used for the production of spirits each day. The purpose of these requisitions, as well as of many others made by the statute, was obviously to guard against fraudulent returns, and to secure to the government a tax upon all spirits produced, and upon all which might have been produced from the quantity of materials used. Hence the distiller was required to return, not merely the amount of his product, but the kind and quantity of materials used by him, and the assessor was directed to test the accuracy of that return, and to estimate, from the quantity of materials ascertained by him to have been used, the number of gallons of spirits which should have been accounted for. 189] The quantity of materials used, as ascertained by the assessor, was made a measure of production, and upon all spirits ascertained by that measure to have been produced, either actually or potentially, the distiller was expressly required, by the 20th section, to pay the tax, without any reference to his return, or to what had been actually produced. In no case could he escape from liability to pay a tax on at least eighty per centum of what his distillery was estimated to be capable of producing, but if he produced more, or if the quantity of materials which he had used, as ascertained and determined by the assessor, showed that his pro Now, applying this to the facts of this case as found by the circuit court, it becomes very evident that the judgment should have been given for the defendant below. It is true the actual production of spirits for the three months, September, October, and November, 1868, as returned by the plaintiff below, and correctly returned, was more than eighty per cent of the producing capacity of his distillery for those three months. Whether it was more than eighty per cent of the producing capacity as determined by the survey, provided for in the 10th section of the act, is not found, nor is it material. It is found that by reason of the survey made in pursuance of that section, the distillery was estimated to be capable of producing from each bushel of grain used, three and one quarter gallons of spirits; that the quantities reported by the plaintiff, as instead of eighty per cent, as the statute has it. Again; it will be noticed that the section nowhere says anything concerning the gross amounts of spirits on which the distiller shall pay tax, except in this eighty per cent clause. The proper and natural construction, therefore, is, that he must pay upon the amount actually produced from his grain, with the proviso that such amount shall not fall below four fifths of the estimated rate of the producing capacity of his machinery. Mr. C. H. Hill, Asst. Atty. Gen., for plain-according to the capacity of his vats, the detiff in error: Section 10 makes detailed and particular provision for estimating, by competent persons, the producing capacity of a distillery, and for giving notice of that estimate to the distiller and to the commissioner of internal revenue; and it authorizes the commissioner, upon being convinced that the estimate thus made is erroneous, to order a new estimate to be made. Here is a complete system of measuring the producing capacity of a distillery, and for correcting any errors made in such measurement; and it is submitted that any error of the assessor and his assistant must be corrected in the manner pointed out, namely: by appeal to the commissioner of internal revenue. But section 20 would seem to place the question beyond a doubt. The eighty per cent therein required to be assessed, is the "eighty per centum of the producing capacity of the distillery, as estimated under the provisions of the act," namely: under section 10. The case falls within the principle established in many states, that an action will not lie to recover back a tax imposed on an overvaluation of property, where the statutes provide a remedy for the correction of any error made by assessors in valuing property. Bank v. Bunnell, 10 Wend. 186; Osborn V. Danvers, 6 Pick. 98; Howe v. Boston, 7 Cush. 273. See, also, for analogous decisions: Nichols v. United States, 7 Wall. 122, 19 L. ed. 125; Meade v. United States, 9 Wall. 691, 19 L. ed. 687; DeBode v. Queen, 3 H. L. Cas. 449; Belcher v. Linn. 24 How. 508, 16 L. ed. 754. The estimate provided for by section 10 will be useless, if it can be impeached collaterally, and the distiller is permitted, without appealng to the commissioners, to correct any error in it, to show that it is erroneous, whenever it is for his interest to do so. Messrs. J. D. Cox and H. L. Burnett, for defendant in error: If he fails to report the full amount of grain ficiency in grain is to be reduced to the corresponding quantity of spirits which such extra amounts of grain would make, and on this deficiency he must pay the "gallon tax" of fifty cents, and the special "barrel tax" of $4 per barrel for the whole quantity of spirits reckoned as deficiency. Such interpretation is sustained by the current of judicial decisions. U. S. v. Nissley, 13 Int. Rev. Rec. 175; U. S. v. Reed, 13 Int. Rev. Rec. 149; Mason v. Peabody, Coll. 13 Int. Rev. Rec. 142; see, also, U. S. v. Singer, 12 Int. Rev. Rec. 210. "Laws imposing duties are never construed beyond the natural import of the language, and duties are never imposed upon the citizens upon doubtful interpretations, for every duty imposes a burden on the public at large and is construed strictly, and must be made out in a clear and determinate manner from the language of the statute." Per Story, J., in Adams v. Brancroft, 3 Sumn. 387. This interpretation is that which has been uniformly given by the internal revenue bureau, prior to the case at bar. In September, 1868, soon after the law took effect, one of the Kentucky assessors addressed the bureau for instructions on this subject, and the answer of the commissioner of internal revenue was published by the authority of the bureau, for the guidance of its officers. 8 Int. Rev. Rec. 93. -"If his returns exceed eighty per cent of this, no assessment is necessary, unless it shall appear that his actual production is in ex cess of his returns. Very respectfully, E. A. Rollins, Commissioner. Edgar Needham, Assessor, Louisville, Ky.” Still again; Apr. 22, 1869, revised instrucknown as series five, number seven; in which tions were issued by Commissioner Delano, form 89," occur the following clauses, viz.: (9 under caption of "instructions as to reports in Int. Rev. Rec. 156): If the distiller were bound, as was claimed by the revenue commissioner in the case at bar, "to pay and account to the government for Laxes upon the amount of three and one quar"If the eighty per cent exceeds the reported ter gallons for each bushel of grain used by him product, then an assessment must be made on If the amount actually produced during those months," which would be at the the balance. full rate of his estimated producing capacity, is found to be correctly reported, and the the eighty per cent clause would be made mean- amount so reported is less than eighty per cent ingless; for we have seen that the full quantity of the capacity as determined upon the survey, of grain used must be reported, and to charge the difference between the reported product taxes upon the full estimated possible produc and eighty per cent must be assessed. On this tion from each bushel, is of course to say that point the law is imperative. But if the amount he shall not be assessed upon a less quantity of actually produced and reported equals or exspirits than one hundred per cent of the pro-ceeds the eighty per cent, no assessment is to be ducing capacity of the distillery, as estimated made." Mr. Justice Strong delivered the opinion of | duction had been or should have been greater, the court: he was subjected to the required tax on the quantity of spirits which that ascertained quantity of materials was capable of producing, and not merely upon the eighty per centum of that quantity. This was the unequivocal language of the act. Thus the quantity of materials used, as ascertained by the assessor, and not the actual product of spirits, was made the measure of liability to taxation and of its extent. The 20th section of the act of Congress, approved July 20th, 1868, entitled "An Act Imposing Taxes on Distilled Spirits and Tobacco, and for Other Purposes," prescribed a mode for the ascertainment of the quantity of spirits for which a distiller was required to account in his monthly returns to the assessor. By a previous section the distiller was required to make a re188*] turn, but the 20th section made it the duty of the assessor on the receipt of the distiller's first return in each month, to inquire and determine whether he had accounted, in his return for the preceding month, for all the spirits produced by him, and to determine the quantity of spirits thus to be accounted for, it required that the whole quantity of materials used for the production of spirits should be as certained. It gave also a rule by which the quantity of materials used for the production of spirits should be ascertained and settled by the assessor, and it then enacted that in case the return of the distiller had been less than the quantity thus ascertained, he should be liable to be assessed for such deficiency, at the rate of fifty cents for every proof gallon, together with his special tax of $4 for every cask of forty proof gallons, which the collector was required to collect. It also enacted that in no case should the quantity of spirits returned by the distiller, together with the quantity so assessed, be less than eighty per centum of the producing capacity of the distillery, as estimated under the provisions of the act. The next preceding section (the 19th) made it the duty of every distiller on the 1st, 11th and 21st days of each month, or within five days thereafter, to render to the assistant assessor an account in duplicate, taken from books he was required to keep, stating not only the number of wine gallons and of proof gallons of spirits produced and placed in warehouse, but also the quantity and kind of materials used for the production of spirits each day. The purpose of these requisitions, as well as of many others made by the statute, was obviously to guard against fraudulent returns, and to secure to the government a tax upon all spirits produced, and upon all which might have been produced from the quantity of materials used. Hence the distiller was required to return, not merely the amount of his product, but the kind and quantity of materials used by him, and the assessor was directed to test the accuracy of that return, and to estimate, from the quantity of materials ascertained by him to have been used, the number of gallons of spirits which should have been accounted for. 189] The quantity of materials used, as ascertained by the assessor, was made a measure of production, and upon all spirits ascertained by that measure to have been produced, either actually or potentially, the distiller was expressly required, by the 20th section, to pay the tax, without any reference to his return, or to what had been actually produced. In no case could he escape from liability to pay a tax on at least eighty per centum of what his distillery was estimated to be capable of producing, but if he produced more, or if the quantity of materials which he had used, as ascertained and determined by the assessor, showed that his pro This construction of the 20th section is in entire harmony with all the other parts of the act. The 10th section directed a survey of every distillery registered or intended to be registered for the production of spirits, in order to estimate and determine its true producing capacity. This survey was required to be made by the assessor of the collection district, with the aid of some competent and skilful person, to be designated by the commissioner of internal revenue. The mode in which the producing capacity of the distillery was to be ascertained, as prescribed by the regulations of the commissioner, was by measuring each mash, or fermenting tub; by calculating how many bushels of grain, when mashed (if grain was used), the fermenters would hold; by considering the period of fermentation, and deducing therefrom the number of bushels which could be fermented in twenty-four hours. This ascertained, the assessor and his assistant were directed to estimate the quantity of spirits that could be produced in the distillery from a bushel of grain, and multiplying that by the number of bushels that could be fermented therein in [*190 twenty-four hours, the producing capacity of the distillery was to be ascertained and fixed as a standard of taxation, or rather to determine the minimum of taxation. At all events the distiller was made taxable for a production of spirits not less than eighty per cent of the producing capacity of his distillery, as determined by the survey, whether that quantity was actually produced by him or not; or whether he used a bushel of grain or not. Eighty per cent of the estimated (not the actual) capacity of the distillery was the smallest amount for which he was made taxable. But if he actually produced more, or if the quantity of grain or other materials used for distillation, as ascertained by the assessor, showed a larger production, he was made taxable to the full extent of that production thus shown. No other interpretation can be given to the 20th section. Now, applying this to the facts of this case as found by the circuit court, it becomes very evident that the judgment should have been given for the defendant below. It is true the actual production of spirits for the three months, September, October, and November, 1868, as returned by the plaintiff below, and correctly returned, was more than eighty per cent of the producing capacity of his distillery for those three months. Whether it was more than eighty per cent of the producing capacity as determined by the survey, provided for in the 10th section of the act, is not found, nor is it material. It is found that by reason of the survey made in pursuance of that section, the distillery was estimated to be capable of producing from each bushel of grain used, three and one quarter gallons of spirits; that the quantities reported by the plaintiff, as having been produced during those three | June 3, 1872, reviewing the decree below, and months, were less than three and one quar- ordering that the claims of the mariners, furter gallons for each bushel of grain used nishers, etc., be preferred to the said mortgage, by him during that time, and that the ad- and that a new distribution of the proceeds be ditional assessment made, of which he com- prepared by a commissioner. Upon June 6, plains, was for the difference between the quan- 1872, the report of the commission was contity reported in his returns and the estimated firmed, and the distribution decreed accordingproduct of three and one quarter gallons for ly to the mariners, etc. The whole amount to each bushel of grain used, the possible produc- be thus distributed was $4,337.51, but the high191* tion determined by the survey. Such est amount upon any one of the claims was being the facts, as found, the plaintiff was ex- $992.87. pressly declared, by the 20th section, to be assessable for the difference between his return and the estimated possible product and it was made the duty of the collector to collect it. The survey and estimate of producing capacity made under the 10th section were conclusive, while they remained, though subject to revision, under the direction of the commissioner of internal revenue. And the extent of liability to taxation was, under the act of Congress, directed to be measured, not by the actual product of spirits, but by what should have been the product of the materials used, according to the estimate made under the 10th section. An appeal was thereupon prayed for by the *Mr. Chief Justice Chase delivered [*357 the opinion of the court: We are asked to dismiss this appeal on three grounds: First. That the appeal was from a decree of the circuit court reversing a decree of the district court, and was allowed by the district judge. Second. Because no one of the claims exceed $2,000. Third. Because the appeal was not in time to operate as a supersedeas. As to the first of these grounds, on looking into the acts of Congress relating to the connection of the district judge with the circuit court, we are of opinion that, though upon appeals from the district court the district judge has no vote in the circuit court, he has in all other respects the powers of a member of the court, and may consequently allow appeals from its decisions. Second, it is apparent that, though no one of the claims allowed exceeded $2,000, yet the claim of the appellants, which was disallowed, exceeded that sum. Third, we are of opinion that the decree may be considered as of either the 3d day of Powers of district judge jurisdiction as to June or the 6th day of June, 1872, and that amount-supersedeas. 1. Although upon appeals from the district court the district judge has no vote in the circuit court, he has in all other respects the powers of a member of the court, and may, consequently, allow appeals from its decisions. 2. Although no one of the claims allowed exceeded $2.000, yet where the claim of the appellants, which was disallowed, exceeded that sum, this court has jurisdiction. 3. The act of June 1, 1872, allows sixty days for the filing of the bond by which the appeal is made to operate as a supersedeas. A libel as filed in the district court of the United States for the district of Louisiana by Doyle against the Steamer Lotawana, etc. The steamer was sold in the course of the proceedings, to pay the claim of the libelants, and a petition was filed by the appellants in this case for the application of the surplus proceeds of said sale to the payment of their mortgage upon the said steamer. Said proceeds were also claimed by various other persons, as mariners and furnishers, etc.; but the district court ordered that they be applied upon the mortgage of the said appellants herein. Upon appeal to the circuit court, a decree was entered upon the appeal was in time to operate as a supersedeas under the act of 1789 (1 Stat. at L. 73). That act, however, does not prescribe the existing rule. The act of June 1, 1872 (17 Stat. at L. 198), which must govern the case allows sixty days for the filing of the bond by which the appeal is made to operate as a supersedeas. The motion to dismiss must, therefore, be denied. THE NEW YORK CENTRAL RAILROAD v. CHARLES C. LOCKWOOD. (See S. C. 17 Wall. 357-384.) Carrier of passengers cannot stipulate for exemption from responsibility for his own neg. ligence-drover traveling on free pass-negligence, what is. 1. A common carrier cannot lawfully stipulate for exemption from responsibility when such exHeadnotes by Mr. Justice BRADLEY. NOTE. From what liability a contract that a common carrier is not to be liable for loss or damage, will exonerate- see note to N. J. Steam Nav. Co. v. Merchants' Bank, 12 L. ed. U. S. 465. ried free or riding on a pass. Liability of carrier for injury to passenger car A person riding on a pass upon which was indorsed this condition "The person who accepts and former are assailed is, that they are contrary to public policy. In regard to contracts generally, public policy and public law unite in support of them; and to warrant the holding of a contract invalid as against public policy, a clear, plain, strong case of necessity for the protection and preservation of the public interest must be presented. In Chitty on Contracts, 10th American edition, 736, it is said, under the head of contracts affecting public policy: "Agreement is not void on this ground, unless it manifestly contravenes public policy." Story, Eq. Jur. §§ 292-306; Story, Cont. §§ 545, 546; Richardson v. Mellish, 2 Bing. 399. There is no evidence of fraur unfairness of any kind by the defendant below, in the making of the contracts.. On the contrary, it is proved that it was fairly entered into and understood by the plaintiff below. In the absence of fraud by the company, the plaintiff below must be deemed to have read and understood the contract when it was made. Hallenbeck v. DeWitt, 2 Johns. 404; Jackson v. Croy, 12 Johns. 427; Addington v. Allen, 11 Wend. 374, 408; Chase v. Ins. Co. 20 N. Y. 55. Most manifestly, the contract extends to and embraces the risk from which the injury in question resulted. The clause in the "stock release," that the persons riding free to take The decisions of the court of appeals of the charge of the stock do so at their own risk of state of New York, above cited, were made up- personal injury from whatever cause, as interon the law of that state, as adopted and estab-preted in the foregoing decisions, covers the lished in the progress of the law by a long course of business which had extensively prevailed without objection by the legislature and, therefore, with its implied approbation. It is no objection to the rule, as the law of the state of New York, that it has not been adopted in all the other states of the Union, for that would prohibit any advance and im- | provement in the common law in any state, not simultaneously accepted by all. In fact, as is well known, important differences exist between the different states in respect to the rules of common law, growing out of differences in the progress of society and business, and the wants of the people. Thirty years ago, the supreme court of the state of New York decided that "Common carriers cannot limit their liability, or evade the consequences of a breach of their legal du'ties as such, in respect to goods carried by an express agreement;" on the ground that it would be against public policy to allow it. Gould v. Hill, 2 Hill, 623. It was not until 1854 that the advance was made to the position that common carriers may limit their liability by express agreement with the owners of goods. Dorr v. Nav. Co. 11 N. Y. 485. The rule that common carriers in the transportation of property may, by contract, protect themselves from responsibility for negligence of their servants, could not be regarded as established, until recently. And for a long period the law in its onward course has been tending to allow carriers of persons to stipulate by contract upon a good consideration, for a similar protection from responsibility for negligence of their servants and agents. Such contracts as that in question are mutually beneficial to drovers and railroad companies; the drover thereby securing a reduction of the rate of transportation; and the company thereby relieving itself from responsibility to the extent contracted for. If drovers should not from motives of selfinterest, accompany their cattle on the train, and take charge of them, railroad companies would be obliged to provide men to give the cattle all necessary attention. It is for the interest of drovers, on being allowed to ride free, to discharge this duty, assuming the risk; and it is for the interest of railroad companies to carry drovers free, to be relieved from that responsibility, compensating them by a reduction of fare, case. Bissell v. Railroad Co. 25 N. Y. 442, and the other cases cited. So, also, does the clause in the pass. It covers all risks on the journey. Northrup v. Assurance Co. 43 N. Y. 516; Theobald v. Assurance Co. 26 Eng. L. & E. 432. See, further, subdivision 7 of this point. No corporate negligence can be fairly imputed to the defendant below, contributing to the injury. Its road was in good condition. The grade was the same as it had been for thirty years, and necessary to cross the canal; the train was properly made up; the size of the train was what had been usual for many years, and the engine was amply adequate to draw the train. Messrs. Truman Smith and C. Brainard, for defendant in error: We insist that the case is neither within the words of the memorandum of June 5, 1858, nor within those of the stock drovers' pass, nor is it material whether those words be taken separately or together, nor how they are construed, whether strictly or otherwise. Let us examine the clause of the former on which the plaintiff in error relies by itself, and consider what it imports. It is as follows, viz.: "And it is further agreed between the parties hereto, that the persons, riding free to take charge of the stock, do so at their own risk of personal injury from whatever cause." And here we remark that this clause can hardly be held to include the defendant in error himself. If he intended to include himself at all, it was himself only. Why did he not speak out explicitly? Why use the awkward, roundabout expression, "the persons riding free to take charge?" Why the third person plural when the first person singular was intended?" But if we are wrong on this point, we next insist that the words of this clause do not include any such case as that now before the court. No injury can be held to be governed by it, except such as was in a strict sense incurred while the defendant in error was on the train, "riding in charge of his stock." Next, we will examine the "stock drover's pass" in connection with the memorandum of agreement and then the case will be more than clear; it will become vivid. What is that pass? After stating that the defendant in error had shipped a quantity of stock which entitled him |