I

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ATTORNEY AT LAW

490 Louisiana Ave. WASHINGTON, D, C.

THE DECISIONS

OF THE

Supreme Court of the United States,

AT

DECEMBER TERM, 1854.

ZEBEDEE RING, DAVID A. BOKEE,
ROBERT S. HONE, AND JOHN P.
HONE, Executors of PHILIP HONE. De
ceased, AND CORNELL S. FRANKLIN,
Complainants,

v.

HUGH MAXWELL.

(See S. C., 17 How., 147-152.)

Mr. Justice Curtis delivered the opinion of the court:

division of opinion of the judges of the Circuit This case comes before us upon a certificate of Court of the United States for the Southern District of New York. The certificate shows that a suit in equity is pending in that court, wherein persons who were the naval officer and surveyor of the port of New York, are complainants, and Hugh Maxwell, who was the Collector of that port, is respondent, and that the scope of the bill is to recover one moiety of a large sum of money levied and collected as additional duties, under the 8th section of the Tariff Act of July 30, 1846 (9 Stat. at L., 43). during the time while the complainants held the offices above mentioned. Upon the hearON NA certificate of division in opinion being of this cause, the judges were opposed in tween the judges of the Circuit Court of opinion upon the following questions: the United States for the Southern District of New York.

Duties when not distributable to custom officers.
One moiety of the additional duties, imposed by
the 8th section of the Tariff Act of July 30, 1846, is
not distributable among the custom-house oflicers
as a penalty.
Section 3 of the Act of Feb. 11, 1846, controls this.

The case is stated by the court.

James J. Ring, for complainants:
Section 8, of the private Act of July 30,
1846, must be construed as a penal provision,
and the "additional duties" of 20 per cent.
must be treated as penalties levied for an of
fense against the revenue laws. They have al-
ways been treated and designated in all the rev-
enue laws since 1799, as penalties levied as a
punishment for the undervaluation of goods,
which has been uniformly regarded as an of-
fense, and in some instances punished by a for-
feiture of the goods.

Greeley v. Thompson, 10 How., 225.
These penalties, like all other penalties, are
distributable among the officers of the customs
as to one moiety thereof, in the manner pre-
scribed in the 91st section of the Act passed
March 2. 1799.

Mr. C. Cushing, Atty. Gen., for the defendant:

The 20 per cent. additional duty authorized to be levied and collected under the 8th section of the Tariff Act of July 30, 1846, is not a penalty to be distributed to the complainants. Stevens, Com., Vol. I., p. 68; Bouvier Law Dic., Vol. II., p. 307. There is nothing in the Act of July 30, 1846, that indicates an inten tion that they meant "penalty" when they said "duty."

There is no statute authorizing these duties, if held to be a penalty, to be distributed to the complainants.

66

Whether, upon a true construction of the revenue laws of the United States, the additional duties of 20 per cent. which have been levied and collected by and paid to the defendant, as Collector of the port of New York, at the port of New York, as stated in his answer, under and by virtue of the 8th section of the Act entitled An Act for reducing the duties on imports, and for other purposes,' passed July 30, in the year 1846, were to be treated as penalties, and one moiety thereof divided between and paid in equal proportions to and among the Collector, naval officer and surveyor of the port of New York, holding said offices at the time of the levying, collection and payment thereof, in the said port of New York, as claimed by the plaintiffs in their bill in this cause."

66

The 8th section of the Act of July 30, 1846, after requiring the collector to cause the dutiable value of the imports therein referred to, to be appraised, estimated and ascertained, in accordance with the provisions of existing laws, goes on to enact, and if the appraised value thereof shall exceed, by ten per cent. or more, the value so declared on the entry, then, in addition to the duties imposed by law on the same, there shall be levied, collected and paid, a duty of twenty per centum, ad valorem, on such appraised value." The question is, whether the sums levied, collected and paid under this clause were by law distributable as penalties, one moiety to the Treasury of the United States, and the other moiety among the Collector, naval officer and surveyor.