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[237 U.S. 1, 2] Solicitor General Davis and Mr. Theodor Megaarden for plaintiff in error.
[237 U.S. 1, 4] Mr. Everett P. Wheeler for defendants in error.
Messrs. Simon Lyon and R. B. Lyon as amici curiae.
Mr. Justice Hughes delivered the opinion of the court:
This is a writ of error to review a judgment of the district court awarding a recovery against the United States for the amount paid as stamp taxes upon certain charter parties under 25 of the war revenue act of June 13, 1898, chap. 448, 30 Stat. at L. 448, 460, Comp. Stat. 1913, 6144. These charter parties were exclusively for the carriage of cargo from ports in the states of the United States to foreign ports, and the imposition of the taxes was held to be in violation of 9, article I. of the Constitution of the United States, which provides: 'No tax or duty shall be laid on articles exported from any state.'
The suit was brought under paragraph 20 of 24 of the Judicial Code [ 36 Stat. at L. 1093, chap. 231, Comp. Stat. 1913, 991 (20)], which confers jurisdiction, concurrent with the court of claims, upon the district court, 'of all claims not exceeding ten thousand dollars founded upon the Constitution of the United States or any law of Congress' (see act of March 3, 1887, chap. 359, 1, 24 Stat. at L. 505, Comp. Stat. 1913 , 991 (20)); and the claim of the plaintiffs (defendants in error) was based upon the act of July 27, 1912, chap. 256, 37 Stat. at L. 240, Comp. Stat. 1913, 6370, which is as follows:
The government demurred to the petition upon the grounds that the court had no jurisdiction of the defendant, or of the subject of the action, and that the petition did not state facts sufficient to constitute a cause of action. The demurrer was overruled (217 Fed. 680), and, after answer, the case was heard on the merits. The court found in substance that the firm, of which the defendants in error were the surviving members, had paid without protest certain stamp taxes on charter parties of the character described; that, on filing their claim under the act of 1912, it had been certified by the collector to be correct in its statement of facts, but that the Commissioner of Internal Revenue had rejected it for the reason that the act was not applicable. Holding the taxes to be unconstitutional, and the claim to have been duly presented, the court rendered judgment for the claimants.
The government contends that the court erred in deciding (1) that the court had jurisdiction of the case, (2) that it need not be averred or proved that the tax was paid under protest, and (3) that the tax was invalid.
The first contention-with respect to jurisdiction-is that, the claim having been rejected, the remedy of the claimants was an action against the collector of internal revenue, and not against the United States. The course of the pertinent legislation since the passage of the war revenue act of 1898 may be briefly reviewed: In 1900, Congress provided for the redemption of, or allowance for, internal revenue stamps, including cases where 'the rates or duties represented thereby' had been 'excessive in amount, paid in error, or in any manner wrongfully collected.' Act of May 12, 1900, chap. 393, 31 Stat. at L. 177, Comp. Stat. 1913, 6346. In [237 U.S. 1, 9] 1902, various provisions of the war revenue act, and amendments thereof, including 6, 12, 25, schedules A and B, with regard to stamp taxes, and 29 as to taxes on legacies and distributive shares, were repealed. Act of April 12, 1902, chap. 500, 32 Stat. at L. 96, 97, Comp. Stat. 1913, 6144, 6369. The repealing act was to take effect on July 1, 1902, and shortly before that date Congress made specific provision that certain taxes collected under the repealed statute should be refunded. Act of June 27, 1902, chap. 1160, 32 Stat. at L. 406. These taxes were (1) those that had been paid upon bequests for uses of a religious, literary, charitable, or educational character, etc.; (2) the 'sums paid for documentary stamps used on export bills of lading, such stamps representing taxes which were illegally assessed and collected;' and (3) taxes theretofore or thereafter paid upon legacies or distributive shares to the extent that they were collected 'on contingent beneficial interests' which had not become vested prior to July 1, 1902. It was also provided that no tax should thereafter be assessed under the act in respect of any such interest which had not become 'absolutely vested in possession or enjoyment' prior to the date mentioned.
The act of 1902 was followed by other refunding statutes. In United States v. New York & C. Mail S. S. Co. 200 U.S. 488 , 50 L. ed. 569, 26 Sup. Ct. Rep. 327, suit had been brought in the district court to recover taxes which had been paid under the war revenue act upon manifests of cargoes bound to foreign ports, and it was held (following Chesebrough v. United States, 192 U.S. 253 , 48 L. ed. 432, 24 Sup. Ct. Rep. 262) that no recovery could be had because the payment had been voluntarily made; the jurisdiction of the court was not impugned. Thereupon Congress provided for the refunding of sums paid for stamps 'on export ships' manifests' representing taxes 'which were illegally assessed and collected,' 'said refund to be made whether said stamp taxes were paid under protest or not, and without being subject to any statute of limitations.' Act of March 4, 1907, chap. 2919, 34 Stat. at L. [237 U.S. 1, 10] 1373. Again, in 1909, the Secretary of the Treasury was directed to pay to those who had duly presented their claims prior to July 1, 1904, the sums paid for stamps used 'on foreign bills of exchange' (drawn between July 1, 1898, and June 30, 1901) 'against the value of products or merchandise actually exported to foreign countries, such stamps representing taxes which were illegally assessed and collected, said refund to be made whether said stamp taxes were paid under protest or duress or not.' Act of February 1, 1909, chap. 53, 35 Stat. at L. 590; see also acts of August 5, 1909, chap. 7, 36 Stat. at L. 120; June 25, 1910, chap. 385, 36 Stat. at L. 779; August 26, 1912, chap. 408, 37 Stat. at L. 626.
It thus appears that the act of 1912-upon which the present claim is based-was the culmination of a series of statutes which leave no question as to the intention of Congress to create an obligation on the part of the United States in favor of those holding the described claims, and it follows that these claims must be deemed to be founded upon a 'law of Congress' within the meaning of the provisions of the Tucker act, now incorporated in the Judicial Code. See Medbury v. United States, 173 U.S. 492, 497 , 43 S. L. ed. 779, 782, 19 Sup. Ct. Rep. 503; McLean v. United States, 226 U.S. 374, 378 , 57 S. L. ed. 260, 262, 33 Sup. Ct. Rep. 122. With respect to the refunding of taxes paid on the 'contingent interests' described in the act of June 27, 1902, supra, it has been held that upon the rejection of the claim an action lies against the United States in the court of claims, or in the district court (where the amount is within the prescribed limit). Fidelity Trust Co. v. United States, 45 Ct. Cl. 362, s. c. 222 U.S. 158 , 56 L. ed. 137, 32 Sup. Ct. Rep. 59; United States v. Jones, 236 U.S. 106 , 59 L. ed. --, 35 Sup. Ct. Rep. 261; Thacher v. United States, 149 Fed. 902; United States v. Shipley, 116 C. C. A. 627, 197 Fed. 265. And this is true not only where such taxes were paid before the refunding act was passed, but also where subsequently they were wrongfully collected in violation of its provisions. United States v. Jones, 236 U.S. 106 , 59 L. ed. --, 35 Sup. Ct. Rep. 261. The same rule must obtain [237 U.S. 1, 11] as to all claims described in the act of 1912, and in this view we are not concerned in the present case with questions arising under the general provisions of the internal revenue laws.
It is urged by the government that Congress intended to limit the act of 1912 to the refunding of death duties erroneously or illegally assessed under 29 of the war revenue act. Reference is made to the legislative history of the statute, but the contention lacks adequate support. See House Reports, 62d Cong. 2d Sess., Report No. 848, June 6, 1912. While the pendency of claims for the refunding of such taxes may have induced the passage of the act, its terms were not confined to these. On the contrary, after providing for the claims arising under 29, Congress added the further clause making express provision for the presentation of claims for the refunding 'of any sums alleged to have been excessive, or in any manner wrongfully collected under the provisions of said act;' and the Secretary of the Treasury is directed to pay to those who duly present their claims and establish the erroneous or illegal collection 'any sums paid by them . . . to the United States under the provisions of the act aforesaid.' We are not at liberty to read these explicit clauses out of the statute.
Another objection to the jurisdiction of the district court is that under 5 of the Tucker act (a provision which was saved from repeal by 297 of the Judicial Code [36 Stat. at L. 1168, chap. 231, Comp. Stat. 1913 , 1274]) the suit was to be brought 'in the district where the plaintiff resides.' 24 Stat. at L. 506, chap. 359, Comp. Stat. 1913, 1575. The petition alleged that petitioners were the surviving members of a copartnership engaged in business in the city of New York 'within the district aforesaid,' and that their 'business and partnership residence was and is in the borough of Manhattan, city of New York, in said district.' It is said that the allegation was insufficient to show the residence required by the statute, but it does not appear that any such objection was [237 U.S. 1, 12] made in the court below. The general language of the demurrer with respect to jurisdiction had appropriate reference to the general authority of the court to entertain such a suit against the United States and to the jurisdiction of the subject-matter of the action. But assuming that the subject-matter was within the jurisdiction of the court, the requirement as to the particular district within which the suit should be brought was but a modal and formal one, which could be waived, and must be deemed to be waived in the absence of specific objection upon this ground before pleading to the merits. St. Louis & S. F. R. Co. v. McBride, 141 U.S. 127, 131 , 35 S. L. ed. 659, 661, 11 Sup. Ct. Rep. 982; Central Trust Co. v. McGeorge, 151 U.S. 129, 133 , 38 S. L. ed. 98, 100, 14 Sup. Ct. Rep. 286; Martin v. Baltimore & O. R. Co. (Gerling v. Baltimore & O. R. Co.) 151 U.S. 673, 688 , 38 S. L. ed. 311, 316, 14 Sup. Ct. Rep. 533; Interior Constr. & Improv. Co. v. Gibney, 160 U.S. 217, 220 , 40 S. L. ed. 401, 402, 16 Sup. Ct. Rep. 272; Western Loan & Sav. Co. v. Butte & B. Consol. Min. Co. 210 U.S. 368 , 52 L. ed. 1101, 28 Sup. Ct. Rep. 720; Arizona & N. M. R. Co. v. Clark, 235 U.S. 669, 674 , 59 S. L. ed. --, 35 Sup. Ct. Rep. 210.
It is also apparent, in the light of the manifest purpose and scope of the legislation to which we have referred, that the contention based upon the absence of protest cannot be sustained. Where taxes have been illegally assessed upon the 'contingent interests' described in the refunding act of 1902 it has been held that recovery may be had although the taxes were paid without protest. United States v. Jones, supra. In the acts of 1907 and 1909, supra, with respect to stamp taxes on 'export ships' manifests' and on foreign bills of exchange against exports, Congress expressly provided for refunding whether the taxes had been paid under protest or not. The fact that these express words were not repeated in the act of 1912 cannot, in view of the nature of the subject, be regarded as evidencing a different intent; rather must this act receive in this respect the same construction as that which had been given to the act of 1902. If it appeared that the sums sought to be recovered were not legally payable, and the claim was duly presented within the time fixed, the right to [237 U.S. 1, 13] repayment was established by the express terms of the statute.
The question, then, is whether the tax, so far as it was laid upon charter parties which were exclusively for the carriage of cargo from state ports to foreign ports, was a valid one. The constitutional provision that 'no tax or duty shall be laid on articles exported from any state' has been the subject of elaborate and authoritative exposition, and we need but to apply the principles of construction which have been settled by previous decisions.
The prohibition relates only to exportation to foreign countries ( Woodruff v. Parham, 8 Wall. 123, 19 L. ed. 382; Dooley v. United States, 183 U.S. 151, 154 , 162 S., 46 L. ed. 128, 130, 133, 22 Sup. Ct. Rep. 62), and is designed to give immunity from taxation to property that is in the actual course of such exportation (Pace v. Burgess, 92 U.S. 372 , 23 L. ed. 657; Turpin v. Burgess, 117 U.S. 504 , 29 L. ed. 988, 6 Sup. Ct. Rep. 835; Cornell v. Coyne, 192 U.S. 418 , 48 L. ed. 504, 24 Sup. Ct. Rep. 383). This constitutional freedom, however, plainly involves more than mere exemption from taxes or duties which are laid specifically upon the goods themselves. If it meant no more than that, the obstructions to exportation which it was the purpose to prevent could readily be set up by legislation nominally conforming to the constitutional restriction, but in effect overriding it. It was the clear intent of the framers of the Constitution that 'the process of exporting the products of a state, the goods, chattels, and property of the people of the several states, should not be obstructed or hindered by any burden of taxation.' Miller, Const. p. 592. It was with this view that Chief Justice Marshall, in Brown v. Maryland, 12 Wheat. 419, 6 L. ed. 678,-holding that a state tax on the occupation of the importer was a tax on imports, and that the mode of imposing it merely varied the form without varying the substance,-drew the comparison between the two prohibitions: 'The states are forbidden to lay a duty on exports, and the United States are forbidden to lay a tax or duty on articles exported [237 U.S. 1, 14] from any state. There is some diversity in language, but none is perceivable in the act which is prohibited. The United States have the same right to tax occupations which is possessed by the states. Now, suppose the United States should require every exporter to take out a license, for which he should pay such tax as Congress might think proper to impose; would government be permitted to shield itself from the just censure to which this attempt to evade the prohibitions of the Constitution would expose it, by saying that this was a tax on the person, not on the article, and that the legislature had a right to tax occupations?' Id. pp. 444, 445. And in Almy v. California, 24 How. 169, 16 L. ed. 644, applying the same principle, the court said, by Chief Justice Taney, that 'a tax or duty on a bill of lading, although differing in form from a duty on the article shipped,' was 'in substance the same thing,' for 'a bill of lading, or some written instrument of the same import,' was 'necessarily always associated with every shipment of articles of commerce from the ports of one country to those of another.' There, as was pointed out in Woodruff v. Parham, supra, shipments to foreign ports were not in fact involved, but this did not detract from the force of the statement so far as it concerns the effect of the tax described.
In Fairbank v. United States, 181 U.S. 283 , 45 L. ed. 862, 21 Sup. Ct. Rep. 648, 15 Am. Crim. Rep. 135, the question of Federal taxation of export bills of lading was directly involved, and after great consideration was definitely determined. In that case, there had been a conviction under the war revenue act of 1898. It was the contention of the government that no tax was placed upon the article exported; that, so far as the question was as to what might be exported, and how it should be exported, the statute imposed no restriction; that the full scope of the legislation was to impose a stamp duty on a document not necessarily, though ordinarily, used in connection with the exportation of goods; that it was a mere 'stamp imposition [237 U.S. 1, 15] on an instrument,' and similar to many such taxes which are imposed by Congress by virtue of its general power of taxation, not upon these alone, but upon a great variety of instruments used in the ordinary transactions of business. These arguments were not convincing. The court held that 'the requirement of the Constitution is that exports should be free from any governmental burden.' The language is 'no tax or duty.' 'We know historically,' said the court, 'that it was one of the compromises which entered into and made possible the adoption of the Constitution. It is a restriction on the power of Congress; and as, in accordance with the rules heretofore noticed, the grants of powers should be so construed as to give full efficacy to those powers, and enable Congress to use such means as it deems necessary to carry them into effect, so in like manner a restriction should be enforced in accordance with its letter and spirit, and no legislation can be tolerated which, although it may not conflict with the letter, destroys the spirit and purpose of the restriction imposed.' In answer to the contention that the sole purpose of the prohibition was to prevent discrimination between the states, and that there should be enforcement only so far as necessary to prevent such discrimination, the court said: 'If mere discrimination between the states was all that was contemplated, it would seem to follow that an ad valorem tax upon all exports would not be obnoxious to this constitutional prohibition. But surely under this limitation Congress can impose an export tax neither on one article of export, nor on all articles of export. In other words, the purpose of the restriction is that exportation, all exportation, shall be free from national burden.' The court found an analogy in the construction which had been given to the commerce clause in protecting interstate commerce from state legislation imposing direct burdens (Robbins v. Taxing Dist. 120 U.S. 489, 494 , 30 S. L. ed. 694, 696, 1 Inters. Com. Rep. 45, 7 Sup. Ct. Rep. 592); and legislative precedents for the tax were held [237 U.S. 1, 16] to be unavailing in view of the clear meaning and scope of the constitutional provision.
Following this decision, it was held by the district court that the stamp tax on manifests of cargoes for foreign ports was invalid. These manifests were essential to the exportation. New York & C. Mail S. S. Co. v. United States, 125 Fed. 320. And while the case was determined in this court upon another ground, the correctness of this ruling as to the invalidity of the tax was conceded by the United States. 200 U.S. 488, 491 , 50 S. L. ed. 569, 570, 26 Sup. Ct. Rep. 327.
Under this established doctrine, we are of the opinion that the tax upon these charter parties cannot be sustained. A charter party may be a contract for the lease of the vessel, or for a special service to be rendered by the owner of the vessel. Where, as is very frequently the case, the shipowner undertakes to carry a cargo, to be provided by the charterer, on a designated voyage, the arrangement is, in contemplation of law, a mere contract of affreightment. By such a charter, the shipowner is the carrier of the goods transported by the ship, 'for the reason that the charter party is a mere covenant for the conveyance of the merchandise or the performance of the stipulated service.' Marcardier v. Chesapeake Ins. Co. 8 Cranch, 39, 49, 50, 3 L. ed. 481, 484; Reed v. United States, 11 Wall. 591, 600, 601, 20 L. ed. 220; Leary v. United States, 14 Wall. 607, 610, 20 L. ed. 756; Richardson v. Winsor, 3 Cliff. 395, 399, Fed. Cas. No. 11,795; The T. A. Goddard, 12 Fed. 174, 178; 1 Parsons, Shipping, p. 278. The findings in the present case do not permit us to question the character of the charter parties here involved. It appears that the defendants in error, being ship brokers, engaged at various times the vessels respectively, which are named in the schedule attached to the findings, solely for the carriage of cargo from ports in the United States to the foreign ports specified; that is, we understand the findings to mean that these charters were for [237 U.S. 1, 17] described voyages on which 'cargoes of goods were to be, and were in fact, carried' to the places mentioned.
Instead of a contract for the carriage of a particular lot of goods occupying less than the entire cargo space, as in the case of an ordinary bill of lading, the charter party was a contract for the carriage of a full cargo lot. In legal principle, there is no distinction which can condemn the tax in the one case and save it in the other. Whether the contract of carriage covers a small lot, or a partial cargo, or an entire cargo, whether the goods occupy a part of the cargo space or the whole cargo space,-can make no constitutional difference. The charters were for the exportation; they related to it exclusively; they served no other purpose. A tax on these charter parties was in substance a tax on the exportation; and a tax on the exportation is a tax on the exports.
The government urges the analogy of tonnage taxes or duties. The same argument was pressed unsuccessfully in the Fairbank Case, 181 U. S. p. 305, 45 L. ed. 871, 21 Sup. Ct. Rep. 648, 15 Am. Crim. Rep. 135. It should be observed that a tonnage tax, as it has been laid by the Federal government from the beginning, is a tax on entry. 1 Stat. at L. 135, chap. 30; Rev. Stat. 4219; acts Feb. 27, 1877, chap. 69, 19 Stat. at L. 250; June 26, 1884, chap. 121, 14, 23 Stat. at L. 57; June 19, 1886, chap. 421, 11, 24 Stat. at L. 81, Comp. Stat. 1913, 7812. See Parkersburg & O. River Transp. Co. v. Parkersburg, 107 U.S. 691, 696 , 27 S. L. ed. 584, 2 Sup. Ct. Rep. 732. A duty of tonnage under article 1, 10, of the Constitution, has been described as a charge 'for entering or leaving a port' (Huse v. Glover, 119 U.S. 543, 549 , 30 S. L. ed. 487, 490, 7 Sup. Ct. Rep. 313); but Congress has not attempted to impose a tonnage tax for the privilege of leaving a state port for a foreign port, and we have no occasion to consider the question of the validity of such a tax. Again, it is contended that the tax bore only incidentally upon exportation. It was to be paid on all charter parties of vessels having a 'registered tonnage.' But, aside from any question as to the scope of this provision, the tax as [237 U.S. 1, 18] applied to the charter parties here in question was nothing else than a tax on exportation, and to this extent was, in any event, invalid. The same principle governs that has constantly been held to obtain in cases where it has been sought to give effect to taxes upon interstate commerce under general legislation of the states. In Robbins v. Taxing Dist. supra, it was strongly urged, 'as if it were a material point in the case,' that no discrimination was made 'between domestic and foreign drummers,'-that is, between those of the state whose legislation was in question and those of other states; that all were taxed alike. But the court held that this did not meet the difficulty, inasmuch as interstate commerce could not 'be taxed at all, even though the same amount of tax should be laid on domestic commerce.' This had been decided, as the court pointed out, in the case of State Freight Tax Case, 15 Wall. 232, 21 L. ed. 146; and it has become one of the commonplaces of constitutional law. See Brennan v. Titusville, 153 U.S. 289, 304 , 38 S. L. ed. 719, 723, 4 Inters. Com. Rep. 658, 14 Sup. Ct. Rep. 829; Caldwell v. North Carolina, 187 U.S. 622, 629 , 47 S. L. ed. 336, 340, 23 Sup. Ct. Rep. 229; Rearick v. Pennsylvania, 203 U.S. 507, 510 , 51 S. L. ed. 295, 296, 27 Sup. Ct. Rep. 159; Crenshaw v. Arkansas, 227 U.S. 389 , 57 L. ed. 565, 33 Sup. Ct. Rep. 294. We know of no ground upon which a different effect can be given to the explicit constitutional provision which denies to Congress the right to tax exportation from the states.
There is a further objection that the goods were not on the vessel at the time the charter party was made, but, as the charters related only to the exportation, this objection is plainly without merit.
The judgment of the District Court is affirmed.
Mr. Justice McReynolds took no part in the consideration and decision of this case.
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