STEAMBOAT COMPANY
v.
THE COLLECTOR.
Supreme Court of United States.
*485 Messrs. J.M. Carlisle and W.P. Prentice, for the appellant.
Mr. G.H. Williams, Attorney-General, and Mr. C.H. Hill, Assistant Attorney-General, contra.
*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 13th, 1866.[*] The facts, agreed by the parties, make primâ 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 30th, 1864, and of March 3d, 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[] imposed a tax of 2½ per cent. 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[] 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 *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.[*] 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 *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 14th, 1870,[*] 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 14th, 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 3d, 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 30th, 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 *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.
Mr. Justice BRADLEY, dissenting:
I dissent from the judgment of the court in this case. The act of March 3d, 1865, exempted vessels which paid tonnage duty from paying the 2½ per cent. 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 2½ per cent. 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 re-enacting 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 *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 per cent., 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 per cent. to two per cent., 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.
NOTES
[*] 14 Stat. at Large, 135.
[] 13 Stat. at Large, 275.
[] Ib. 493.
[*] 12 Stat. at Large, 558.
[*] 16 Stat. at Large, 269.