Steamboat Company v. The Collector, 85 U.S. 478 (1873)

U.S. Supreme Court

Steamboat Company v. The Collector, 85 U.S. 18 Wall. 478 478 (1873) Steamboat Company v. The Collector

85 U.S. (18 Wall.) 478

ERROR TO THE CIRCUIT COURT FOR

THE SOUTHERN DISTRICT OF NEW YORK

Syllabus

1. Under the ninth section of the Act of July 13, 1866, laying on the owners of steamboats a tax of " 2 1/2 percent of the gross receipts from passengers," the owners of a night boat which receives a certain sum for the mere transportation of persons (that is to say, for their passage, or barely being on the boat during its transit), and also a certain sum for the use of berths and state rooms (which berths and state rooms it was not obligatory on the passengers to take or pay for, and which persons who were willing to sit up all night did not take), is chargeable with 2 1/2 percentum on the latter sort of receipts as well as on the former.

2. A proviso to an existing act held to have been repealed by an act which "amended" the former act, "by striking out all after the enacting clause and inserting in lieu thereof, the following," this "following" being in part an iteration of the words of the section amended, and in part new enactments.

3. The proviso in the fourth section of the Act of March 3, 1865, exempting a certain class of steamboats from a tax of 2 1/2 percent, which was laid on all steamboats by the one hundred and third section of the Act of June 30, 1864, fell by the enactment of the ninth section of the Act of July 13, 1866, which "amended the first-named act by striking out all after the enacting clause and inserting in lieu thereof the following," this "following" being in part an iteration of the words of the section of the Act of June 30, 1864, amended, and in part new enactments.

The New Jersey Steamboat Company had a night line of steamboats which ran between New York and Albany, and

Page 85 U. S. 479

which paid tonnage duty in conformity with the laws of the United States. The boats were furnished with berths and state rooms. But it was not obligatory on passengers going on the boats to take either. They might pay for a passage only -- that is to say, pay for the "bare right" to be on the boat, while it was going from one place to the other, in which case they would have to sit up all night, or they might pay in addition to the passage money a certain sum, in which case they had the privilege to occupy a berth or a state room. The accounts of passage money received were kept distinct from those of money received for berths or state rooms.

In this state of things, the collector of the United States at New York, asserting that he was justified by the ninth section of an Act of Congress of July 13, 1866, hereinafter set forth, demanded from the company the sum of $7,972.66, which he alleged to be a tax assessed at the rate of 2 1/2 percent on the company's "gross receipts from passengers" during the summer of 1869.

The sum just mentioned was thus made up:

For the transportation of passengers (passage money) . . $4,831.99

For berths or state rooms. . . . . . . . . . . . . . . . 3,140.67

---------

$7,972.66

If the government had a right to lay a tax on the company for passage moneys and the price of berths and state rooms let, it was not denied that the sums charged were the right ones, but the company denied:

1st. That it was bound by the act relied on by the collector, or by any other act, to pay a tax on either item of its receipts.

2d. That if it was bound by that act or any other act to pay the tax on the first item, it was bound to pay it on the second.

Having, however, paid both on compulsion, and under protest, it now, December, 1869, sued the collector to recover both, or at least the latter.

Whether the company was bound to pay any tax depended

Page 85 U. S. 480

upon the fact whether the statute relied on by the collector and giving generally a tax, had repealed a previous statute relied on by the company, and discharging specifically from tax all companies which paid a tonnage duty, which confessedly this company did pay.

The case as to these statutes was thus:

An Act of July 14, 1862, [Footnote 1] entitled "An act increasing temporarily the duties on imports and for other purposes," by its fifteenth section laid a tonnage tax of 10 cents per ton on all steamboats.

An Act of June 30, 1864, [Footnote 2] to provide revenue to support the government, and to pay interest on the public debt and for other purposes, by its one hundred and third section laid, in addition, "a tax of 2 1/2 percentum upon the gross receipts" of steamboats "engaged or employed in transporting passengers or property for hire." It made certain other provisions about taxation.

An Act of March 3, 1865, [Footnote 3] by its fourth section increased the tonnage duty on steamboats to 30 cents per ton, and by a proviso to the section enacted,

"That the receipts of vessels paying tonnage duty shall not be subject to the tax provided in section one hundred and three of 'An act to provide revenue,' &c., approved June 30, 1864, nor by any act amendatory thereof. [Footnote 4] "

Page 85 U. S. 481

An Act of July 13, 1866, entitled "An act to reduce internal taxation, and to amend an act entitled &c., approved June 30, 1864, and acts amendatory thereof," by its ninth section, [Footnote 5] amended the one hundred and third section of the Act of June 30, 1864, "by striking out all after the enacting clause and inserting in lieu thereof the following."

It then inserted provisions laying the same tax of 2 1/2 percentum of gross receipts on "steamboats, engaged or employed in the business of transporting passengers for hire," and made some other changes, more or less considerable in other matters provided for in this one hundred and third section. Its seventieth section was thus:

"All provisions of any former act inconsistent with the provisions of this act are hereby repealed."

I. The reader will perceive from what has been thus far said that the question was whether this ninth section of the Act of July 13, 1866, which "amended" the one hundred and third section of the Act of June 30, 1864, "by striking out all after the enacting clause and inserting in lieu thereof" certain provisions in part identical with the old ones and in part not so, did not only abrogate that section of that act, but whether it swept away also with it, as something in its nature inseparable from it, the proviso in the fourth section of the Act of March 3, 1865, exempting steamers paying tonnage from the tax.

The solution of this question requires a fuller exhibition than that which, for the purpose of a general idea, is above given of the whole language of the two enactments -- that is to say, of the one hundred and third section of the Act of June 30, 1864, and the ninth section of the Act of the date just given, which the collector contended had not only repealed this section of the Act of June 30, 1864, but annihilated also the proviso in the fourth section of that of March 3, 1865. The two sections of the two acts are here set out one after the other, words existing in one and not existing in

Page 85 U. S. 482

the other being put in italics.

"ACT OF JUNE 30, 1864"

"SECTION 103. That every person, firm, company, or corporation, owning or possessing, or having the care or management of, any railroad, canal, steamboat, ship, barge, canal boat, or other vessel, or any stage coach or other vehicle, engaged or employed in the business of transporting passengers or property for hire, or in transporting the mails of the United States, or any canal, the water of which is used for mining purposes, shall be subject to and pay a tax of two and one half percentum the gross receipts of such railroad, canal, steamboat ship, barge, canal boat, or other vessel, or such stage coach or other vehicle, ['Provided, That this section shall not apply to those teams, wagons, and vehicles used in the transportation of silver ores from the mines where the same are excavated to the place where they are reduced or worked.'] [Footnote 6]"

Provided that the duty hereby imposed shall not be charged upon receipts for the transportation of persons or property, or mails between the United States and any foreign port; ["but such duty shall be assessed upon the transportation of persons and property from a port within the United States through a foreign territory to a port within the United States, and shall be assessed upon and collected from persons, firms, companies, or corporations within the United States, receiving such freight or transportation."] [Footnote 7] and any person or persons, firms, companies, or corporations, owning, possessing, or having the care or management of any toll road, ferry, or bridge, authorized by law to receive toll for the transit of passengers, beasts, carriages, teams, and freight of any description over such toll road, ferry, or bridge, shall be subject to and pay a duty of three percentum on the gross amount of all their receipts of every description. But when the gross receipts of any such bridge or toll road shall not exceed the amount necessarily expended to keep such bridge or road in repair, no tax shall be imposed on such receipts, provided that all such persons, companies, and corporations shall have the right to add the duty or tax imposed hereby to their rates of fare whenever their liability thereto may commence, any limitations which may exist by law or by agreement with any person or company which may have paid or be liable to pay such fare to the contrary notwithstanding:

"And provided further that no tax under this section shall be assessed upon any person, whose gross receipts do not exceed one thousand dollars per annum."

"ACT OF JULY 13, 1866"

"SECTION 9. That section 103 (of Act of June 30, 1864) be amended by striking out all after the enacting clause and inserting in lieu thereof the following: That every person, firm, company, or corporation owning or possessing, or having the care or management of, any railroad, canal, steamboat, ship, barge, canal boat, or other vessel, or any stage coach or other vehicle, except hacks or carriages not running on continuous routes, engaged or employed in the business of transporting passengers for hire or in transporting the mails of the United States upon contracts made prior to August 1, 1866, shall be subject to and pay a tax of two and one half percent of the gross receipts from passengers and mails of such railroad, canal, steamboat, ship, barge, canal boat, or other vessel, or such stage coach or other vehicle:"

"Provided that the tax hereby imposed shall not be assessed upon receipts for the transportation of persons or mails between the United States and any foreign port, but such tax shall be assessed upon the transportation of persons from a port within the United States through a foreign territory to a port within the United States, and shall be assessed upon and collected from persons, firms, companies, or corporations within the United States, receiving hire or pay for such transportation of persons and mails; and so much of section 109 as requires returns to be made of receipts hereby exempted from tax when derived from transporting property for hire is hereby repealed. Provided also that any person or persons, firms, companies, or corporations, owning, possessing, or having the care or management of any toll road, ferry, or bridge, authorized by law to receive toll for the transit of passengers, beasts, carriages, teams, and freight of any description over such toll road, ferry, or bridge, shall be subject to and pay a tax of three percent of the gross amount of all their receipts of every description. But when the gross receipts of any such bridge or toll road for and during any term of twelve consecutive calendar months shall not exceed the amount necessarily expended during said term to keep such bridge or road in repair, no tax shall be assessed upon such receipts during the month following any such term. Provided further that all such persons, companies, and corporations, shall, until the 30th day of April, 1867, have the right to add the tax imposed hereby to their rates of fare whenever their liability thereto may commence, any limitations which may exist by law or by agreement with any person or company which may have paid or be liable to pay such fare to the contrary notwithstanding."

And whenever the addition to any fare shall amount only to the fraction of one cent, any person or company liable to the tax of two and a half percentum may add to such fare one cent in lieu of such fraction; and such person or company shall keep for sale, at convenient points, tickets in packages of twenty and multiples of twenty, to the price of which only an amount equal to the revenue tax shall be added. And provided further that no tax under the foregoing provisions of this section shall be assessed upon any person, firm, company, or corporation, whose gross receipts do not exceed one thousand dollars per annum.

And provided further that all boats, barges, and flats not used for carrying passengers nor propelled by steam or sails which are floated or towed by tug boats or horses, and used exclusively for carrying coal, oil, minerals, or agricultural products to market shall be required hereafter, in lieu of enrolment fees or tonnage tax, to pay an annual special tax for each and every such boat of a capacity exceeding twenty five tons and not exceeding one hundred tons five dollars, and when exceeding one hundred tons, as aforesaid, shall be required to pay ten dollars, and said tax shall be assessed and collected as other special taxes provided for in this act.

"SECTION 7. . . . All provisions of any former act inconsistent with the provisions of this act are hereby repealed."

The question was, did the proviso of the Act of March 3, 1865, exempting from the tax laid by section one hundred and three of the Act of 1864 (the act first set out above), on all steamers which paid a tonnage tax, remain

Page 85 U. S. 485

notwithstanding the ninth and seventieth sections of the later Act of July 13, 1866 (the second act set out above)?

But the question was perhaps not dependent even upon all that precedes, for finally came an Act of Congress of July 14, 1870, [Footnote 8] which in its twenty-fifth section referred to the proviso in the one hundred and third section of the Act of June 30, 1864, as apparently then in force, and repealed it. This act ran thus:

"SECTION 25. And be it further enacted that section fifteen of the act approved July 14, 1862, entitled 'An act increasing temporarily the duties on imports, and for other purposes,' and section four of the act in amendment thereof, approved March 3, 1865, be, and the same are hereby, so amended that no ship, vessel, steamer, boat, barge, or flat, belonging to any citizen of the United States, trading from one port or point within the United States to another port or point within the United States or employed in the bank, whale, or other fisheries shall hereafter be subject to the tonnage tax or duty provided for in said acts, and the proviso in section one hundred and three of the 'Act to provide revenue to support the government and to pay interest on the public debt, and for other purposes,' approved June 30, 1864, requiring an annual special tax to be paid by boats, barges, and flats, is hereby repealed."

II. But if the Act of 1866 was in force, unqualified by the proviso, and if the company was "to be subject to and pay a tax of 2 1/2 percent of the gross receipts from passengers," the next question was whether the $3,140.67 came within that enactment, this sum not having been received for passage, and being for another thing, to-wit, for the right to occupy and sleep in berths and state rooms.

The court below was of opinion against the steamboat company on both points, and, giving judgment for the collector, the company brought the case here.

Page 85 U. S. 489

MR. JUSTICE SWAYNE delivered the opinion of the Court.

The plaintiffs in error instituted the suit to recover back the amount of a tax which they allege was exacted from them without warrant of law. They were the owners of a night line of steamers running between the Cities of New York and Albany. The tax was upon the gross receipts from their passengers. Payment was required by the collector under the ninth section of the Act of July 13, 1866. [Footnote 9] The facts, agreed by the parties, make prima facie a clear case of liability within the language of this law. The tax was exacted only to the amount prescribed and upon a subject specified. There is no complaint as to either of these particulars. If this were the whole case, there could be no controversy between the parties, and doubtless the case would not be here. But the plaintiffs in error insist that by reason of certain provisions in the acts of June 30, 1864, and of March 3, 1865, the ninth section of the Act of 1866 does not apply to receipts from passengers upon their steamers.

The one hundred and third section of the Act of 1864 [Footnote 10] imposed a tax of 2 1/2 percent of the gross receipts from passengers, freights, and the transportation of the mails, earned by steamboats within the category of those of the plaintiffs in error.

A proviso in the fourth section of the Act of 1865 [Footnote 11] declared

"That the receipts of vessels paying tonnage duty shall not be subject to the tax provided in section one hundred and three of the Act of 1864, nor by any act amendatory thereof."

The steamers of the plaintiffs in error paid such tonnage

Page 85 U. S. 490

duty. Under these acts, they were entitled to the exemption claimed.

But the ninth section of the Act of 1866 declared that the one hundred and third section of the Act of 1864 should "be amended by striking out all after the enacting clause and inserting in lieu thereof the following." It then proceeds to tax the receipts from passengers and for carrying the mails under contracts made prior to the taking effect of the act, as was done by the section amended, but it wholly omits the tax upon freights and upon receipts for carrying the mails under contracts thereafter made, to which they would have been liable under that section, standing alone, before it was amended. Three things were taxed by the original section, and but one of them, with the limited exception as to the mails, by the section which superseded it and took its place. The seventieth section declares

"That this act shall take effect, where not otherwise provided, on the 1st day of August, 1866, and all provisions of any former act inconsistent with the provisions of this act are hereby repealed."

The one hundred and third section of the Act of 1864 was thus superseded and annulled. The proviso in the fourth section of the Act of 1865 fell with it. The latter referred to the former. When the former ceased to exist, there was nothing left for the latter to operate upon. The ninth section was much more limited in the taxes which it imposed than the one hundred and third. The two sections were the same neither in letter nor substance.

The tonnage duty in question was imposed by the fifteenth section of the Act of July 14th, 1862. [Footnote 12] It was thirty cents per ton, and was to be paid once a year. The exemptions in the ninth section must have exceeded it largely in amount. It may well be that by reason of these remissions, it was deemed proper by Congress that the tax upon the receipts from passengers, as well as the tonnage duty, should thereafter be paid, and that the exemption as to the former, given by the Act of 1865, should no longer continue. Such, in our

Page 85 U. S. 491

judgment, was the intent and effect of the ninth section of the Act of 1866. It is said that the proviso in the act of 1865 is not expressly repealed. There was no necessity for an express declaration upon the subject. It was superseded by the abrogation of the one hundred and third section. And the seventieth section of the Act of 1866 in terms repealed "all the provisions in any former act inconsistent with the provisions of this act." The ninth section of this act declares that the tax here in question shall be paid. The proviso in the Act of 1865 declares that it shall not be paid.

Can there be a clearer inconsistency than that which subsists between these provisions? If Congress intended that the exemption should continue under the Act of 1866 as it was under the Act of 1864, it would have been easy to say so, and doubtless this would have been done.

It is insisted that the twenty-fifth section of the Act of July 14, 1870, [Footnote 13] recognizes the continuing existence and force of the proviso in question. That section is as follows:

"SECTION 25. And be it further enacted that section fifteen of the act approved July 14, 1862, entitled 'An act increasing temporarily the duties on imports, and for other purposes,' and section four of the act in amendment thereof, approved March 3, 1865, be, and the same are hereby, so amended that no ship, vessel, steamer, boat, barge, or flat belonging to any citizen of the United States, trading from one port or point within the United States to another port or point within the United States, or employed in the bank, whale, or other fisheries, shall hereafter be subject to the tonnage tax or duty provided for in said acts, and the proviso in section one hundred and three of the 'Act to provide revenue to support the government and to pay interest on the public debt, and for other purposes,' approved June 30, 1864, requiring an annual special tax to be paid by boats, barges, and flats, is hereby repealed."

This section suggests several remarks.

(1) Section four of the Act of 1865 contains other matters

Page 85 U. S. 492

besides the proviso in question. There is a reference in the twenty-fifth section to one of those other matters, but none to the proviso.

(2) The abrogation of the tonnage duty as thus declared may have been because of the imposition of the tax here in question by the ninth section of the Act of 1866, in addition to tonnage duty. It was a return to the liberal spirit manifested by the Act of 1865, but instead of remitting the tax upon passengers and retaining the tonnage duty, it remits the latter and retains the former. It is not to be supposed that Congress intended to give up both. This legislation gives no support to the views of the plaintiffs in error.

(3) The reference to the one hundred and third section of the Act of 1864 involves an error of fact. That section contains no such proviso or provision as is mentioned, and, as before shown, it was wholly superseded by the Act of 1866. The proviso referred to is in the ninth section of the last named act. The reference to it does not in any wise affect the case before us.

Judgment affirmed.

[Footnote 1]

12 Stat. at Large 558.

[Footnote 2]

13 id. 275.

[Footnote 3]

Ib., 493.

[Footnote 4]

As it is mentioned in the opinion of the Court, infra, p. 85 U. S. 491-492, that this section four of the Act of 1865, "contains other matters besides the proviso in question," and as an argument is drawn from that fact, the whole section is here given. It is thus:

"SECTION 4. And be it further enacted, that section fifteen of an act entitled 'An act increasing temporarily the duties on imports, and for other purposes,' approved July 14, 1862, be, and the same hereby is amended so as to impose a tax or tonnage duty of thirty cents per ton in lieu of ten cents, as therein mentioned."

"Provided that the receipts of vessels paying tonnage duty shall not be subject to the tax provided in section one hundred and three of an act to provide internal revenue to support the government and to pay interest on the public debt and for other purposes, approved June 30, 1864, nor by any act amendatory thereof."

"Provided further that no ship, vessel, or steamer, having a license to trade between different districts of the United States or to carry on the bank, whale, or other fisheries, nor any ship, vessel, or steamer to or from any port or place in Mexico, the British Provinces of North America, or any of the West India Islands, or in all these trades, shall be required to pay the tonnage duty contemplated by this act more than once a year."

[Footnote 5]

14 Stat. at Large 135.

[Footnote 6]

So amended March 3, 1865. 13 Stat. at Large 478.

[Footnote 7]

So amended March 3, 1865. 13 Stat. at Large 478.

[Footnote 8]

14 Stat. at Large 135.

[Footnote 9]

16 Stat. at Large 256.

[Footnote 10]

13 Stat. at Large 275.

[Footnote 11]

Ib., 493.

[Footnote 12]

12 Stat. at Large 558.

[Footnote 13]

16 Stat. at Large 269.

MR. JUSTICE BRADLEY, dissenting:

I dissent from the judgment of the Court in this case. The Act of March 3, 1865, exempted vessels which paid tonnage duty from paying the 2 1/2 percent on gross receipts imposed by the one hundred and third section of the Internal Revenue Act of 1864. The act of 1866 amended this section by exacting the 2 1/2 percent on receipts from passengers and mails only, and not on receipts from freight. A few other minor alterations were made. Such an amendment as this, in my judgment, cannot have the effect of repealing the exemption granted to vessels paying tonnage duty. It is contended that the mode of making the amendment makes a difference -- namely by striking out all after the enacting clause of the one hundred and third section and reenacting it with the modification alluded to. It seems to me that the substance, rather than the form, should govern the construction. The several laws on the subject of internal revenue

Page 85 U. S. 493

constitute one system, all in pari materia, and if modifications of certain sections by amendment are to have the effect of making those sections absolute law, discharged from all qualifications and exemptions created by other parts of the system, the result will be to derange the harmony of the system as a whole. If farm products generally are taxed one percent, but by a special law cotton is taxed ten dollars a bale and by another special law wheat is taxed twenty cents a bushel, can it be that an alteration of the section taxing farm products generally from one percent to two percent will abrogate the special tax on cotton and wheat? It is a rule that special laws are not abrogated by general ones unless the intent to do it be very clear. It seems to me that this rule is lost sight of in the judgment of the Court.