TON

PENNING "thereby appear to be due and payable," with a deduction of six per cent for prompt payment, or to give bond payable in 9 months.

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COXE.

By the 11th se ion a drawback of the duties, "hereby "laid upon sugar refined within the United States," is allowed upon exportation to a foreign port.

But by the 16th section, such, allowance is not to be made, unless the exporter shall make oath that the duties have been paid or secured.

The 20th section declares it shall be lawful to export refined sugar directly from the manufactory, free from duty.

The 1st section of the repealing Act of April 6, 1802, enacts, "that from and after the 30th day of June next, "the internal duties on stills and domestic distilled spirits, "on refined sugars, licences to retailers, sales at auction, "carriages for the conveyance of persons, and stamped "vellum, parchment and paper, shall be discontinued, "and all acts and parts of acts relative thereto, shall, "from and after the said 30th day of June next, be re"pealed:

"Provided, that for the recor and receipt of such “duties as shall have accrued, and on the day aforesaid “remain outstanding, and for the payment of drawbacks, "or allowances on the exportation of any of the said "spirits, or sugars legally entitled thereto, and for the recovery and distribution of fines, penalties and forfeitures, and the remission thereof, which shall have been "incurred before and on the said day, the provisions of "the aforesaid acts, shall remain in full force and virtue."

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Ingersoll, for plaintiff in error.

By the repealing act, no duties upon refined sugar, are to be collected, but such as had accrued, and remained outstanding, on the 30th of June, 1802. The sugars in question were refined before, but were not sent out until after that day; and the question is, whether, the duties upon them, had accrued on that day, and then remained outstanding. We contend that the duty is to be collected

only upon sugar, sent out of the building in which it was refined; and to support this construction, we rely upon the general tenor of the act, which imposed the duty. It is a rule of construction of statutes, that " every act, "upon consideration of all the parts thereof together, is "the best expositor of itself." 4 Inst. 325. And it is another sound rule, that words distributed into different sections, are to be considered as if all were in one section. By this rule the 5th section of the act of June 5th 1794, is to be connected with the 2d. What is general in the 2d, is thus restricted and qualified by the 5th. The 2d section enacts that the duty shall be levied, collected and paid, upon all sugar refined in the United States. If this section stood alone, it is admitted, that it would be conclusive against the plaintiff in error. But it is limited by the 5th section, not accidentally, but with a clear view to collection, and that it might not operate as a tax upon labor, but upon consumption. By this section two accounts are to be kept; one of the sugar refined, the other of the refined sugar sent out; but the duty is only upon that contained in the latter.

If the words of both sections were incorporated into one, (and they are to be construed as if they were,) it would read thus, upon all sugar refined within the Unitea States, and sent out of the building, &c. 'there shall be lé-. vied, collected and paid, a duty of two cents per pound.

The account of sugar refined, but not sent out, was intended merely as a check. It was not to be delivered, but shewn, to the officer, and it's purpose was to enable him, by comparing the amount refined, with that sent out, and what remained on hand, to estimate the correctness of the account of sugar sent out, upon which alone the duty was chargeable. It was clearly the intention of the legislature, that the duty should be paid upon sugar, only in such circumstances, as would show that the tax would fall upon the consumer, and not on the manufacturer.

But it will be contended, that there is a distinction between levying, and collecting. That the duty is levied upon the whole, but is payable only on such as shall be

sent out.

But for this distinction. there is not even an intimation in the act of congress.

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COXE.

PENNING

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COXE.

It will be said on the part of the United States, that there is no section but the 2d, which imposes the duty, and by that section it is imposed on all sugar refined.

But why impose a duty, which is not to be collected?

It is agreed, that the sending out is a pre-requisite to the payment. What use can there be in imposing a duty, upon an article in circumstances which prevent it's collection?

If the duty arises from the act of refining only, the oth section might be expunged, and the law would remain the That section is of no use, unless it operates upon

same.

the second.

The words "levied, collected and paid," in the 2d section, are commensurate, though not of the same meaning. The word "levied" applies to the act of the legis lature, in imposing the duty. "Collected," refers to the act of the officer. "Paid," to the act of the party. “Levied” means the same as imposed.

Each verb has the same subject. The same thing is to be levied, collected and paid. Nothing is levied but what is to be collected; nothing collected but what is to be paid; and nothing is to be paid but on the sugar sent out. Hence no duty is levied but upon sugar sent out

There is no analogy between this duty and that upon goods imported. There the duties are payable on the landing of the goods, and are payable even if the goods are destroyed as soon as landed. In such a case a remission of the duties is matter of favour. But in the case of refined sugar, it is not so. The legislature did not intend that the manufacturer should be the sufferer, The impost laws have no section restricting the general imposition.

The bond to be given for the duties on sugar, is to be payable in nine months after the time of sending out, not of refining.

The bond given for impost is payable in 6 months after importation.

Hence, if any analogy exists, the argument derived from

it is in favour of the construction that the duty is not imposed until the sugar is sent out.

A duty not to be paid, is no duty.

Suppose the refining house should be burnt, and a quantity of refined sugar destroyed, no duty could be collected upon it. The relation of debtor and creditor had not arisen between the manufacturer and the United States. The duty had not accrued.

That it be sent out, is descriptive of the subject matter of the tax. It fixes a certain stage of the business of a manufacturer, at which the duty shall attach. It ascertains the quality and degree of refining, which otherwise might be the subject of much litigation. Sugar may not be fit to send into the market, and yet it may be strictly said to

be refined.

The penalties and the duty must correspond. The duty of the manufacturer cannot exceed the penalty. The doctrine of relation will not extend to create a penalty or a forfeiture. The provisions of the old law are continued by the repealing law, only as to penalties and forfeitures, "which shall have been incurred before or on the 30th of June 1802." As no penalty or forfeiture for non-payment of the duty could be incurred until after the sugar was sent out, and as the sugar was not sent out until after the 30th of June, it is evident no penalty or forfeiture, as to that sugar, could "have been incurred before or on that day." This shows that the provisions of the law to enforce the payment of duties on such sugar were not continued, and is a strong indication of the will of the le gislature that none should be paid.

All the provisions in the act of 1794, subsequent to the 5th section mention the subject of the duty as being sugar refined and sent out. Thus the oath mentioned in the 7th section, is to the truth of the account of sugan sent out.

The drawback, the account to be rendered, the tax to be collected, and the bond for securing the duties, refer only to such sugar as shall have been sent out.

If there had been no express provision in the repealing act, and the duty had been repealed generally on the 30th

PENNING

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COXE.

ΤΟΝ

COXE.

PENNING of June, no duty could have been due on sugars then refined but not sent out. The repealing law creates no obligation on the refiner to render an account of sugars refined before and sent out after the 30th of June. If the duty was levied upon all sugars refined before that day, and payable at any future indefinite time when they should be sent out, it would be necessary to keep an officer in pay as long as a single loaf remained in the building. All parts of the acts were to cease after the 30th of June, unless saved by the proviso; and that relates only to the recovery and receipt of all such duties as had then accrued and remained outstanding, and such penalties and forfeitures as had then been incurred.

The question then recurs, had these duties accrued, and were they remaining outstanding on the 30th of June? The word "accrued" must mean arisen, due; at least due at present, payable in future. But if they were due, the officer had a right to call for payment or security. It cannot be said to have accrued, until it is to be paid or secured. But the words "remaining outstanding" are still stronger. "Shall have accrued and remain outstanding," that is, having before accrued, shall remain outstanding. These expressions imply that the duties had been fixed and their amount ascertained; that the relation of debtor and creditor had arisen, and that the duties remained unpaid either through negligence or indulgence.

The effect of the construction contended for on the part of the U. S. would be to throw the whole of these duties' upon the refiner, for he could not make a difference in price between the sugars refined before, and those manufactured after the 30th of June. This effect would be in direct hostility to the general principle of the legislature which is apparent through the whole act, and which was to tax consumption and not labor.

The proviso in the repealing law, either enacts, or declares. It is evident that it does not enact any new regulations, but merely declares the continuance of former provisions. The remedy given by the former act was only by action, or forfeiture. But no action would lay nor would any forfeiture be incurred, until after the sugars were sent out, It is a rule, that upon a new statute which prescribes a particular remedy, no remedy can be