
    JOSEPH S. KENNEDY ET AL. v. THE UNITED STATES.
    [No. 15571.
    Decided June 11, 1888.]
    
      On the Proofs.
    
    In May and June, 1886, the claimants reship imported bituminous coal on foreign-built steamers sailing from New York, and claim the drawback given by the Act 3d March, 1883. Before the drawback certificates issue the Act 19th June, 1886, is passed restricting the right “ to vessels of the United States.” The collector withholds the certificates; the claimants seek to recover the drawback.
    I. The Act 19th June, 1886 (24 Stat. L., p. 81, § 10), which restricts the right to a drawback on imported bituminous coal “ to vessels of the United States,” is prospective and does not take away the right to the drawback on coal which had previously been reshipped on vessels not of the United States.
    II. This court has jurisdiction of an action to recover the drawback on imported bituminous coal given by the Act 3d March, 1883 (22 Stat. L., p. 488).
    
      The Reporters’ statement of the case:
    The following are the facts as found by the court:
    I. The claimants, Joseph S. Kennedy and William R. Moon, ■doing business in the city and State of New York under the firm name of Kennedy & Moon, shipped on board certain steam vessels hereinafter named, sailing from that port to foreign ports, certain quantities of bituminous coal, to be used as fuel on board said steam vessels. Said coal was of foreign production, which had been imported into the United States, and on which the import duties had been fully paid, the details of said shipments of coal being as follows:
    
      
    
    II. Due entry of said various quantities of coal was made at the custom-house in the city of New York for the benefit of drawbacks, under Schedule N of the Tariff Act of March 3, 1883 (22 Stat. L., 488), and the regulations of the Treasury Department issued in pursuance thereof. The coal was duly weighed and laden on board the various vessels specified under the supervision of the customs officers.
    III. The collector of customs, acting under instructions from the Secretary of the Treasury, refused to issue to the claimants, certificates of drawback, as required by article 954 of the general regulations of the Treasury Department.
    IV. The drawback on said coal, at the statutory rate of 75 cents a ton, amounts to $1,040.95, no part of which has been paid.
    
      Mr. H. B. James for the claimant:
    1. There is nothing in section 10 of the act of June 19,1886, to necessarily imply that Congress intended that the new legislation should have a retroactive effect, or apply to entries of coal which had been laden on board foreign vessels before the act was passed.
    2. There was a right vested in the claimants to these moneys claimed as drawback before the repealing statute of 1886 as to foreign vessels was passed, and there remained nothing to be done on their part to perfect such right.
    
      The mere fact of payment or non-payment does not affect-the case. If the statute ha*s a retroactive operation it condemns the action of the Treasury Department in allowing payment of drawback to coal used on foreign vessels, and, in fact, invalidates all such payments. (Chew Heong v. The United States, 112 U. S. K., p. 53G 5 S. S. Oo. v. Joliffe, 2 Wall., 450.)
    
      Mr. Heber J. May (with whom was Mr. Assistant Attorney-General Hoioard) for the defendants:
    The claims arise under the revenue laws, and no certificates of drawback having been issued the same are within the exclusive jurisdiction of the Secretary of the Treasury.
   Scofield, J.,

delivered the opinion of the court:

The claimants file their petition to recover certain sums of money for drawback on foreign bituminous coal, shipped as fuel on board certain steamers plying from the port of New York to foreign ports.

The dates of shipments, the quantity of coal, and the names and destination of the vessels appear by the following table:

The duties upon the coal had been paid at the time of importation.

The drawback is claimed under the Act March 3, 1883 (22 ■Stat. L., 488). In Schedule N of that actis the following provision :

“ Coal, bituminous and shale, seventy-five cents per ton of twenty-eight bushels, eighty pounds to the bushel.
“ A drawback of seventy-five cents per ton shall be allowed on all bituminous coal imported into the United States which is afterwards used for fuel on boad vessels propelled by steam which aiu engaged in the coasting trade of the United States or iir the trade with foreign countries, to be allowed and paid under such regulations as the Secretary of the Treasury shall prescribe.”

Upon the reshipment of the coal all the requirements of this act and the regulations of the Secretary of the Treasury were complied with by the claimants, but before the collector of customs had issued the drawback certificates, the Act June 19, 1886 (24 Stat. L., 81) was passed, in which is found the following provision :

“ Sec. 10. That the provisions of Schedule N of an act to reduce internal-revenue taxation, and for other purposes, approved March 3, 1883, allowing a drawback on imported bituminous coal used for fuel on board vessels propelled by steam, shall be construed to apply only to vessels of the United States.”

The Secretary of the Treasury, in doubt as to the effect of this statute upon prior reshipments, directed the collector to withhold certificates of drawback.

It will be observed that the claimants’ right to demand such certificates was complete before the construing act was passed.

Did Congress intend by this act to devest rights already acquired under the act of 1883 ? The rule is well settled that a retroactive effect cannot be given to a statute unless that intention clearly appears.

In Chew Heong v. The United States (112 U. S. R., 559) the Supreme Court said:

“ The courts uniformly refuse to give to statutes a retrospective operation, whereby rights previously vested are injuriously affected, unless compelled to do so by language so clear and positive as to leave no room to doubt that such was the intention of the legislature. In United States v. Heth (3 Cranch, 390, 413) this court said that words in a statute ought not to have a retrospective operation unless they are so clear, strong, and imperative that no other meaning can be annexed to them or unless the intention of the legislature can not be otherwise satisfied; ’ and such is the settled doctrine of this court. (Murray v. Gibson, 15 How., 421, 423; McEwen v. Den, 24 How., 242, 244; Harvey v. Tyler, 2 Wall., 328, 347; Sohn v. Waterson, 17 Wall., 596, 599; Twenty Per Cent. Cases, 20 Wall., 179, 187.) ”

In this act such intention is not clearly expressed. It may mean that the act of 1883 “ shall be construed ” in the future or from the date of that act in the .manner prescribed. If it related back to 1883, then drawbacks already paid should be refunded; if only to the future, no completed transactions will be disturbed and no vested rights devested.

The court holds that Congress intended the act to apply only to reshipments thereafter made.

The defendants also object to the jurisdiction of the court.

That question is settled adversely to the defendant’s position by the opinion of the Supreme Court in Campbell v. United States (107 U. S. R., 407).

The facts in the two cases, so far as concerns the question of jurisdiction, are so exactly similar that it is only necessary to refer to that decision. Judgment will be entered in favor of the claimants in the sum of $1,040.95.  