
    THE TWIN CITY NATIONAL BANK OF NEW BRIGHTON v. NEBEKER.
    TREASURER OF THE UNITED STATES ; JOURNALS OF CONGRESS AS EVIDENCE; Constitutional Law ; Revenue Bills.
    1. Quaere, whether the Treasurer of the United States can be held personally liable for money demanded and received by him in his official capacity, under an act of Congress which may, in the action by which he is sought to be charged, be found to be void.
    2. Quaere, whether the journals of Congress are evidence to show in which house a bill and its amendments originated.
    3. A bill is not necessarily a revenue bill within the meaning of Article 1, Sec. 7, of the Constitution, providing that “ all bills for raising revenue shall originate in the House of Representatives,” merely because, as an incident to its main object, it contains a provision for the payment of certain dues, license fees or special taxes.
    4. The fact that that portion of See. 41 of the National Bank Act of June 3, 1864 (13 Stats., Ill) which imposes a semiannual tax upon the circulating notes of the national banks organized under the act, had its origin in the Senate by amendment to the bill as originally introduced in the House, does not invalidate it. The amendment was not an independent measure and did not convert it into a bill for raising revenue in the sense of Art. 1, Sec. 7 of the Constitution.
    No. 250.
    Submitted February 16, 1894.
    Decided April 16, 1894.
    Hearing on a bill of exceptions by the plaintiff in an action of debt.
    
      Affirmed.
    
    The Court in its opinion stated the case as follows:
    This suit involves the validity of that part of Section 41 of th: National Bank Act, approved June 3, 1864, which imposes the semi-annual tax or charge upon the circulating notes of the national banks organized thereunder. U. S; Stat. at Large, vol. 13, p. 111.
    The appellant, The Twin City National Bank of New Brighton, a duly organized national bank, went into liquidation in a lawful manner, made the deposit of money required to redeem its outstanding circulation, on August 25, 1891, and demanded of the Treasurer of the United States, who is the appellee herein, the return of its bonds. The Treasurer refused to surrender the said bonds until payment should be made of the sum of $56.25, which was demanded by him as the amount due on its average circulation during the half year from January 1 to June 30, 1891. In order to obtain the bonds, the bank paid the money under protest, and immediately instituted this suit to recover it.
    Appellant was permitted to introduce the journals of the Senate and House of Representatives in evidence, and the history of the bill, from its introduction to its final passage, is set forth in the bill of exceptions.
    The original bill, entitled “An act to provide a national currency secured by a pledge of United States bonds, and to provide for the circulation and redemption thereof,” was introduced in the House of Representatives. .
    Section 41 of this bill provided for the custody of the plates used in printing the bills, and further that “the expenses necessarily incurred in executing the provisions of this act respecting the procuring of such notes, and all other expenses of the bureau, shall be paid out of the taxes or duties now, or hereafter to be, assessed on the circulation and collected from associations organized under this act.” There was a further clause requiring the banks to pay “a duty of one per cent, each half year upon the maximum amount of their circulating notes during the six months,” etc., etc. This last provision was stricken out by amendment in the House, and in lieu thereof there was inserted a provision recognizing the rights of the States to tax such banks, with certain limitations on the power. The bill then passed the House properly and was sent to the Senate. In that body many amendments were adopted, and among these one to Section 41 aforesaid. This amendment struck out all but the first paragraph of the section, which provides for the custody of the plates, and the payment of the expenses attending the procuring of the notes, etc., and added a lengthy provision concerning the powers and limits of State taxation, as well as the taxes and duties upon circulation, deposits, etc., required to be paid to the United States.
    That portion of the amendment which relates to the charges upon the circulation, etc., reads thus: “And in lieu of all existing taxes every association shall pay to the Treasurer of the United States in the months of January and July, a duty of one-half of one per centum each half year, from and after the first day of January, 1864, upon the average amount of its notes in circulation, and a duty of one-quarter of one per centum each half year upon the average amount of its deposits, and a duty of one-quarter of one per centum each half year as aforesaid on the average amount of its capital stock, beyond the amount invested in United States bonds.”
    In case of default in payment of these dues, the Treasurer was required to retain the sums due from the interest accruing on the bonds deposited in accordance with the provisions of the same law. The bill was finally passed, and approved with the aforesaid Section 41 as amended in the Senate.
    The plaintiff, having introduced evidence to establish the necessary allegations of its declaration, rested its case; whereupon the defendant moved an instruction to the jury to return a verdict in his favor, which was sustained. Plaintiff took a bill of exceptions to the action of the court, in which is set forth all the testimony, and has prosecuted this appeal from the judgment entered on the said verdict.
    
      Mr. John J. Crawford for the appellant.
    1. The court has jurisdiction of the action. The right to maintain actions of this character in any court of general jurisdiction is settled beyond question. Both in England and in the United States, actions have been frequently maintained against public officers, they being sued as individuals. In the former country, the rule that the king cannot be sued has never been extended to officers of the crown; but as between them and other subjects, the principles applied are the ordinary principles which apply between man and man. A review of numerous English cases will be found in Brown v. United States, 6 Ct. Cl., 171, 185.
    And in this country the immunity of the United States and the several States from suits has never prevented the courts from taking jurisdiction of actions against public officers to prevent or remedy illegal proceedings on their part.
    The decisions on the questions both in the State and Federal courts are very numerous. See Ripley v. Gelston, 9 John., 201; Otis v. Walker, n Wheat, 192, 2 Wheat, 18, 6 Wheat., 583 ; Tracy v. Swartwout, 10 Pet., 80; Elliott v. Swartwout, 10 Pet, 137; Bates v. Clark, 95 U. S., 204; Mitchell v. Harmony, 13 How., 115; Brown v. United States, 6 Ct. Cl., 171.
    Not. only have personal actions been maintained against officers of the United States, but even actions for the recovery of real property claimed to be held by them as agents of the United States. See Wilcox v. Jackson, 13 Pet., 498; Grisar v. McDowell, 16 Wall., 363; United States v. Lee, 106 U. S., 199.
    The same principle of immunity from suits is as applicable to each of the States as to the United States, except in the few cases where a State can be sued in the Federal Supreme Court. United States v. Lee, 106 U. S., 196, 206; Cunningham v. R. R. Co., 109 U. S., 446.
    But actions have frequently been maintained against State officers in cases where they claimed to have acted as such officers and under authority of the State. See Osborn v. Bank, 9 Wheat., 738; Davis v. Gray, 16 Wall., 203 ; Poin-dexter v. Greenhow, 114 U. S., 270; Cunningham v. R. R. Co., 109 U. S., 446; Hagood v. Southern, 117 U. S., 52.
    2. The action cannot be defeated by showing payment to the United States.
    It is settled beyond question that where money is exacted by one colore officii, under duress of goods, and is paid under protest, it is no defense to him that he has paid the money over before the action. Snowden v. Davis, X Taunt., 359; Ripley v. Gelston, 9 John., 201; Elliott v. Swartwout, 10 Pet., 80; Maxwell v. Griswold, 10 How., 242, 256; Ogden v. Maxwell; 3 Blatch., 323, 324; Wood v. Stirman, 37 Tex., 584; Rheel v. Hicks, 25 N. Y., 289, 293 ; -Kimball v. Bank, 1 Ill. App., 209, 216.
    3. The payment was made under duress. The money was paid by the plaintiff for the purpose of getting possession of its property, and at the time of the payment protest was made that the action of defendant was illegal, that the money was paid merely to get possession of the property, and that an action would be brought to recover it. This constitutes payment under duress within all the authorities. Maxwell v. Griswold, 10 How., 242 ; Swift v. United States, m U. S., 22; Robertson v. Frank, 132 U. S., 17.
    4. The Journals are competent evidence, and the highest evidence, in this case. Field v. Clark, 143 U. S., 649; United States v. Ballin, 144 U. S., 1; Ex parte Wren, 63 Miss,, 512; State v. Denny, 1x8 Ind., 449, 456; People v. Petrea, 92 N. Y., 139; People v. Allen, 42 N. Y., 378; People v. Commissioners, 54 N. Y., 276; Rumsey v. R. R. Co., 130 N. Y., 88; People v. Purdy, 2 Hill, 31-34, 4 Hill, 384; Gardner v. Collector, 6 Wall., 499, 511; Com. v. Martin, 107 Pa, St., 185, 190.
    5. The proceedings on the passage of Section 41 of the Bank Act were a violation of the constitutional bills provision that all bills for raising revenue must originate in the House of Representatives. It is not contended that it is necessary to the validity of a particular tax that it shall first be proposed by the House of Representatives; but it is admitted that such tax may be first proposed by the Senate by way of amendment to a revenue bill from the House. And it is admitted that the power of the Senate to amend a revenue bill is the same as its power to amend any other bill; that if the House sends a bill laying a tax upon one thing, the Senate may amend the bill by adding a tax upon something else, or by substituting the one for the other; and that it may amend even to the extent of striking out all after the enacting clause, and substituting its own bill. But amendments Of this character must be made to a revenue bill. Before the Senate can act at all in revenue matters, it must have a bill from the House laying a tax of some kind. For it to add revenue measures to any other kind of a bill-is a palpable evasion of the Constitution. If in this case the bill had laid a tax upon the state banks, the Senate might have added a tax upon national banks, or might have struck out the one and substituted the other; or, if the bill had contained provisions taxing the national banks, it might have added, or substituted, a tax on the state banks; but as the bill laid no tax of any sort, either upon the national banks or upon anything else, the Senate had not acquired jurisdiction of the subject, and, therefore, had no power to amend the bill by adding taxing provisions.
    6. The constitutional provision is mandatory. Cooley’s Constitutional Limitations, 94, 95, and cases cited; Perry County v:,R. R. Co., 58 Ala., 546; Hunt v. State, 22 Tex. App., 396, 400; Lake County v. Rollins, 130 U. S., 671; Gibbons v. Ogden, 9 Wheat., 188; People v. Purdy, 2 Hill, 34; 4 Id., 384; Newell v. People, 7 N. Y., 83-84, 97-98, 108-109; State v. Edgerton School Board, 76 Wis., 177; Brown v. Goben, 122 Ind., 113-115; Holmes v. Jennison, 14 Pet., 540, 571; Hooper v. Commissioners, 23 Ga., 566; Dundee Mortgage Co. v. Parrish, 11 Sawyer, 92 ; Mumford v. Sewall, 11 Oregon, 67; Rankin v. City of Henderson (Ky.), 7 S. W. Rep., 174.
    7. The Senate amendment was one for raising revenue. Kilbourne v. Thompson, 103 U. S., 161, 191; Peyton v. Bliss, x Woolw., 170, 173; Cooley on Taxation, 42; Act June 30, 1864, sec. no, 13 St, p. 277. See also Debates on the Bill, Cong. Globe, xst Sess. 38th Cong. See also Letter of Secretary Chase, read in Senate, Cong. Globe, p. 2142.
    8. The provisions in the Revised Statutes have no more force or effect than in the original statute. The Revised Statutes are a revision and consolidation of the old statutes, not an enactment of new. Doyle v. Wis., 94 U. S., 50, 52; 
      Meyer v. Car Company, 102 U. S., x. They were intended as a legislative declaration of what the law was on the 1st day of December, 1873. United States v. Bowen, 100 U. S., 513; United States v. Moore, 7 Rep., 198; Town of South Ottawa v. Perkins, 94 U. S., 260, 270; In re Oregon Bui. Co., 3 Sawyer, 614; In re Leavenworth Savings Bank, 3 Cent. L. J., 207.
    
      Mr. A. A. Birney, United States Attorney for the District of Columbia, for the appellee.
    1. The money paid to defendant and now sought to be recovered was paid to “ the Treasurer of the United States,” as required by the terms of the statute (Sec. 5214, R. S.), and not to Mr. Nebeker, and it was covered into the Treasury of the United States. If plaintiff has a right of action it is therefore against the United States upon its implied contract to return the money paid it through the Treasurer, and it has no right of action against the official through whose hands the money passed. To charge an official with personal liability for refusal to pay a debt of the United States is unheard of unless the proceeding be authorized by statute. Mechem on Public Officers, Secs. 539, 805, 806; Parks v. Ross, xi How., 362, 374; Hodgson v. Dexter, 1 Cr., 345; Angaricasr. Bayard, 127 U. S., 251; Chitty on Contracts (10th ed.), 303, 305. . Congress has provided in what cases and before what tribunals suits may be brought to recover debts due from the United States. No circuitous method of obtaining such relief is permitted. Reeside v. Walker, 11 How., 290.
    2. The duty was lawfully assessed, and the action of the Treasurer in refusing to surrender the bonds until payment of such duty or tax was made was justified by the statute, Section 41 of the National Bank Act, R. Stat., Sec. 5217. The amendment which imposed the tax in question, the plaintiff claims, had its origin in the Senate. This fact does not appear upon the statute itself, but is sought to be established by extrinsic evidence, to be found in the journals of the two Houses of Congress. This proof was received in the court below, but it was entirely incompetent for the purpose and should not have been received. Exclude this evidence, and the plaintiff is at once out of court. The case of Field v. Clark, 143 U. S., 649, is conclusive of this question.
    3. The Senate amendment was not in violation of the Constitution, and was entirely proper. The words stricken out in the Senate, and for which the present Section 41 is a substitute, dealt with the subject of taxation of the associations to be organized. It did not relieve them from the effect of existing acts of Congress, which would have bound them to pay a Federal tax without words of restraint in this statute.
    The amendment did no more than provide that “ in lieu of all existing taxes” these associations should pay the duty there provided for. This was certainly not a “bill to raise revenue,” but was rather an amendment, germane to the general subject of the bill, declaring the extent of liability of these new associations to taxation “in lieu of all existing taxes.” Section 41 of the bill as it came from the House, and immediately preceding- the words of the Senate amendment, is an express provision touching the taxation of these banking associations, -13 Stat. at L., ill, in these words: “. . . and all other expenses of the bureau shall be paid out of the proceeds of the taxes or duties now or hereafter to be assessed on the circulation and collected from associations organized under this act.”
    The tax or duty on circulation of banking associations generally had been provided for by section 7, of the act of March 3, 1863, 12 Stat. at Large, 712.
   Mr. Justice Shepard

delivered the opinion of the Court:

There are three propositions of law in this case, the soundness of which it is incumbent upon the appellant to maintain, in order to procure a reversal of the judgment. These are: (1) That the defendant can be held liable in person for money demanded and received by him in his official capacity of Treasurer of the United States, under an act of Congress which may be found to be void; (2) That the journals of Congress may be brought into court and inspected in order to ascertain where, and in what form, a bill may have originated, and in which house the amendment that may have converted it into a bill for raising revenue was first offered and adopted; (3) That the revenue clause of the act under consideration is of the nature of an independent and original bill for raising revenue, that was injected into the body of a House bill for another and different purpose, in violation of the prohibition of the Constitution.

In the view which we have taken of the merits of the cause, as involved in the third of these propositions, it is not necessary that we should now decide the questions raised in the first and second. Interesting and important as they are, we think it wiser to pretermit their discussion and decision in this case, and to let their final determination await a cause in which the necessity therefor shall become imperative. In the meantime they may be finally determined for the guidance of all the courts, in the tribunal of last resort.

Assuming, then, that the suit can be maintained against Nebeker as a private person, and also that the journals of Congress may be inspected in order to ascertain in which house the objectionable feature of the law had its origin, we come to the consideration of the main question. The contention is, that the taxing clause of the act, having originated in the Senate, is void because enacted in disobedience of the first clause of Section 7, Article 1, of the Constitution, which reads as follows: “All bills for raising revenue shall originate in the House of Representatives; but the Senate may propose or concur with amendments as on other bills.”

The time-honored and jealously guarded principle of the British Constitution which has come down to us, with modification, in the above clause, has not the same reasonable foundation for its existence in our system of government, and in the Constitution of the Federal Congress, that it has in the land of its birth; but it is nevertheless an express command that must be obeyed, and no bill can become a law of the land in disobedience of its injunction.

If appellant’s- contention is well founded, the provision of the law which has been assailed must be declared void, no matter how far-reaching, embarrassing, or even disastrous, the consequences may be. But to justify the courts in overturning an act of Congress that has been passed and approved without suggestion of its unconstitutionality, and acquiesced in for more than twenty-five years without question, during which time millions of money have been demanded and collected under its so-called revenue feature, the conclusion must be logical, plain and unmistakable; the construction must be imperative.

From the statement of the case, it appears that Section 41 of the original bill, as introduced into the House of Representatives, contained a clause imposing a tax upon the circulating notes of the banks, which differs only in points of detail from the Senate’s amendment. This was stricken out, however, before the bill was sent to the Senate. If in fact this provision made the bill one for raising revenue, it might with some plausibleness be contended that as a revenue bill it did originate in the House of Representatives, and that its effect, so far as the constitutional requirement is concerned, was not altered by striking out the revenue feature therein before its passage. In this view, the action of the Senate would be but an exercise of the express power of amendment conferred in such case by the Constitution itself. We say this would seem plausible if confined to a bill, the revenue provisions of which are germane to its main subject and purpose, and not the result of an attempt to join an independent and unrelated object to that expressed in the title, for some ulterior purpose. We are not, however, sufficiently impressed with the soundness of this reasoning to base our decision upon a conclusion reached by it.

Whilst the primary object of all taxation is the raising of revenue for the support of the government, and all bills for that general purpose are “bills for raising revenue,” in the sense of the Constitution, and therefore must originate in the House of Representatives, it does not necessarily follow that every bill for some other legitimate and well-defined general purpose becomes a revenue bill, in the same sense, because, as an incident to the main object, it may contain a provision for the payment of certain dues, license fees, or special taxes. This principle was indorsed by the Supreme Court of Oregon in a case where an act of the Legislature licensing the sale of intoxicating liquors was attacked under a like provision of the Constitiftion of that State, because it originated in the Senate. State v. Wright, 14 Ore., 365.

In another case in the same State the court went so far as to extend the principle to a bill subjecting mortgages to taxation, which had been exempted therefrom under previous laws, saying: “ It is not sufficiently clear that a law which merely declares that certain property theretofore exempt from taxation shall thereafter be subject to taxation, is strictly a law for raising revenue.” Mumford v. Sewall, 11 Ore., 67; followed by the Circuit Court of the United States in Dundee Mortgage Co. v. Parrish, 11 Sawyer, 92.

In Missouri, also, though not with respect to this particular constitutional inhibition, it was held that a liquor license law was a police regulation and not a bill for raising revenue. In the course of the opinion the court said: “Many fines, penalties and forfeitures become a part of the public revenues of the State that are not derived from taxation. The disposition of the fund1 derived from the license fees does not necessarily determine the character of such fees.” State v. Hudson, 78 Mo., 304.

In the case of Georgia, an act incorporating a town, was attacked in an action to recover taxes imposed thereby, on the ground that it was a bill for raising revenue and had originated in the Senate. The supreme court upheld the act on the ground that its main purpose and real object was to incorporate the town, and the-taxation feature was but incidental thereto. Harper v. Commrs., 23 Ga., 566.

The foregoing decisions are in accord with the views expressed by Judge Story in his work on the Constitution, who, after giving a brief history of the origin of the constitutional provisions, says: “What bills are properly bills for raising revenue in the sense of the Constitution has been matter of some discussion. A learned commentator supposes that every bill which indirectly or consequentially may raise revenue is, within the sense of the Constitution, a revenue bill. He therefore thinks that the bills establishing the postoffice, and the mint, and regulating the value of foreign coin, belong to this class, and ought not to have originated (as they in fact did) in the Senate. But the practical construction of the Constitution has been against his opinion. And, indeed, the history of the origin of the power already suggested, abundantly proves that it has been confined to bills to! levy taxes in the strict sense of the words, and has not been understood to extend to bills for other purposes which may incidentally create revenue. No one supposes that a bill to sell any of the public land, or to sell public stock, is a bill to raise revenue in the sense of the Constitution.” Story on the Constitution, Sec. 880.

Tested by the foregoing, the reasoning of which is perfectly satisfactory to our minds, we conclude that the amendment to the bill under consideration, adopted in the Senate, was not an independent measure and did not convert it into a bill for raising revenue, in the sense of the Constitution. The controlling purpose of this bill was to provide for the creation and circulation of national bank notes as money under the sanction and guaranty of the United States. It conferred valuable franchises and privileges upon the banks organized thereunder, to accomplish what was deemed a desirable purpose, and it was not unreasonable nor foreign to its general object, to accompany them with a condition, by way of a tax, or a charge, or a duty, which would not only remunerate the government for its trouble and expenses in connection therewith, but might also add something to its revenues by way of return for- the benefits conferred. Provisions for the payment of fees and charges might well, and in fact usually do, form a part of every bill enacted for the purpose of enabling persons to organize private business corporations, especially where there may be an additional grant of valuable franchises.

There is no reasonable ground for holding that the Senate amendment was injected into the body of this bill without regard to its subject-matter, and solely for the purpose of raising revenue. It is plain from the history of the bill, as disclosed by the journals of both houses, that it could not have been passed without this incidental charge for the franchises and benefits conferred, and to say now that it shall stand with this feature stricken from it, would be to thwart the object of Congress and do violence to its plain intention.

There was no error in the instruction to the jury to return a verdict for defendant, and the judgment thereon must be affirmed, with costs to the appellee ; and it is so ordered.  