Ammidown v. Freeland

Gray, J. The congress of the United States, in exercising the power, conferred by the Constitution, “ to lay and collect taxes, duties, imposts and excises, to pay the debts and provide for the common defence and general welfare of the United States,” and to make all necessary and proper laws for carrying this power into execution, may tax goods to be manufactured and sold, at any stage of their manufacture or sale, and may determine whether the tax upon goods sold shall be borne and paid by the seller or the buyer. The parties may by agreement decide as between themselves which shall bear the tax; but no agreement of parties, whether made before or after the passage of a tax act, can exempt property from taxation according to the laws in force when the property reaches that stage at which it is declared by those laws to be taxable. It is within the province of the legislature to determine not only which party shall pay the amount of the tax to the government, but upon whom the burden shall finally rest, and also, for greater certainty and convenience in the collection of the tax, to provide that the ¿mount of the tax shall be paid by one party to the government and recovered by him from the other party or deducted upon a final settlement with him. Examples of such legislation are to be found in the provisions inserted in the tax acts of Massachusetts from an early period, taxing real estate either to the landlord or the tenant, and giving to the one who actually pays the amount of the tax the right to recover the same or a certain portion thereof from the other; and in that section of the intern^ revenue act of the United [310] States, (the validity of which has been judicially established, requiring certain corporations to pay a duty on their bonds, and authorizing them to deduct the amount thereof in accounting with their bondholders, and thus making the corporations the agents of the government for enforcing and collecting the duty. Derumple v. Clark, Quincy, 38 and notes. Rev. Sts. c. 7, §§ 7, 8. Gen. Sts. c. 11, §§ 8, 9. U. S. St. 1864, c. 173, § 122; 13 U. S. Sts. at Large. 284. Haight v. Railroad Co. 6 Wallace, 15. Clopton v. Philadelphia & Reading Railroad Co. 54 Penn. State, 356. The English St. of 43 Geo. III. c. 81, which imposed an additional duty on spirits distilled on and after the 5th of July 1803, contained a section, reciting that contracts for the sale or delivery of articles or commodities thus subjected to additional duties might have been made, having no reference to such additional duties ; and enacting that all persons who had made any such contracts should be authorized and empowered “ to add so much money as will be equivalent to the said additional duties respectively to the price of such articles or commodities.” By a contract made six weeks before the passage of the act, a distiller agreed to supply a merchant with a certain quantity of spirits, to be shipped at Leith, at a certain price per gallon, payable in three months from the time of shipment, and also agreed to be on the look out for a vessel, but the custom was for the purchaser to send a vessel to take the spirits on board. No vessel could be found at Leith until after the passage of the act. It was held by the house of lords, under the advice of Lords Eldon and Eedesdale, that the seller was entitled to charge the purchaser with the additional duty, making the price one third higher than that which had been agreed. Haig v. Napier, 1 Dow, 255. That case goes farther than is necessary to maintain this action. By the internal revenue act of 1864, c. 173, § 94, an ad valorem duty is imposed on all cloth or textile fabrics of wool, cotton or other materials; and by § 97 it is provided that “every person, firm or corporation, who shall have made any contract prior to the passage of this act, and without other provision therein for [311] the payment of duties, imposed by law enacted subsequent thereto, upon articles to be delivered under such contract, is hereby authorized and empowered to add to the price thereof so much money as will be equivalent to the duty so subsequently imposed on said articles, and not previously paid by the vendee, and shall be entitled by virtue hereof to be paid, and to sue for and recover the same accordingly.” 13 U. S. Sts. at Large, 269, 273. The duty, the amount of which the plaintiffs seek to recover in this case, is upon woollen goods, and has been paid to the government by the manufacturer of the goods, as required by the internal revenue act. The plaintiffs have themselves paid the amount of the duty on part of these goods, and appear on the facts agreed, and are not denied by the defendants, to be liable to pay it on the other part, to the manufacturer. The goods on which it was payable and paid have since been delivered by the plaintiffs and received by the defendants under a contract of sale made between them before the passage of the act, and in the same shape in which the goods were when the duty was imposed and paid. The effect of the act of congress, as applied to these facts, is, that a duty shall be imposed and paid on all goods of this description, manufactured and sold after the passage of the act imposing the tax; that the time of fixing the ultimate liability of bearing the burden of the tax so paid shall be on the delivery which completes the sale and passes the property; that the person upon whom that burden shall rest shall be the buyer; that, for the convenience and security of the government, the amount of the duty shall be collected in the first instance from the manufacturer; and that, after it has once been so collected, the amount thereof may be recovered by him, and by any subsequent seller, from the person to whom each sells and delivers the same goods. The tax is made to fall uniformly upon the buyer in all cases: and the act imposing it applies only to sales consummated by delivery after its passage, and therefore is not open to the objection of being retrospective in its operation.' The duty having been imposed under the act and paid by tne manufacturer and never paid by the defendants, and the goods [312] having been delivered by the plaintiffs to the defendants and received by them since the passage of the act, under a contract of sale previously made between the parties, the plaintiffs have the right, by the terms of the act, to recover the amount thereof from the defendants as their immediate vendees, without regard to the question whether the plaintiffs have or have not paid it themselves. The contract between the parties containing no other provision for the payment of the duties, the fact that, for some weeks before that contract was made, the bill, including the ninety-seventh section, was pending in congress, and published in the newspapers, has no tendency to show that the defendants should not be held liable to the plaintiffs for the amount of the duty, in accordance with that section. There is no ground for inferring a waiver of the plaintiffs’ claim. As soon as the act was passed, the defendants were bound to know that they were liable to the plaintiffs for the amount of these duties. If they omitted to secure reimbursement in or under their contracts with other parties, it is their own fault; and neither their omission to do so, nor the plaintiffs’ knowledge of those contracts, can affect the liability of the defendants to the plaintiffs. The plaintiffs were not required to add the amount of the tax to each invoice of goods as delivered; and they did make a formal claim upon the defendants for the amount of the duty before a final payment and settling of the accounts between the parties. The claim of the plaintiffs is not for a penalty, but in the nature of a debt, growing out of the dealings between the parties, and the provisions of the act of congress. Dawson v. Linton, 5 B. & Ald. 521. Foster v. Ley, 2 Bing. N. C. 269. Central Bridge Co. v. Abbott, 4 Cush. 474. Met. Con. 5, 8. Congress not having prescribed in what courts the remedy therefor should be pursued, it may be sued for and recovered in any court, state or national, of appropriate jurisdiction. Lapham v. Almy, 13 Allen, 301. Crocker v. Marine National Bank, ante, 240, and authorities cited. Stevens v. Mechanics' Savings Bank, ante, 109. Judgment for the plaintiffs.