
    THE THINGVALLA LINE ET AL v. THE UNITED STATES.
    [Departmental 36.
    Decided March 11, 1889.]
    
      On the defendants’ Demurrer.
    The collector of the port of New York requires the claimant to pay head-money on passengers under the Immigration Act, 1882. The claimant applies to the Secretary of the Treasury to refund the money as an exaction illegally made. The Secretary transmits the elaim-to this court under the Tucker Act.
    I. The provision of the Revised Statutes ($ 1066) prohibiting the court from exercising jurisdiction growing out of or dependent upon treaties does not extend to Departmental cases transmitted under , the Tucker Act, 1887 (24 Stat. L., 507, § 12).
    II. The Immigration Act, 1882 (22 Stat. L., 214), imposing a taxupon passengers, applies to those brought by Danish ships, notwithstanding the Treaty toiih Denmark (8 Stat. L.,340; 11 id., 720).
    
      III. The Aet26th June, 1884 (22 Stat. L., 58, § 22), wMcb excepts from the passenger tax vessels plying between the ports of the United States and those of Canada and Mexico, does not entitle Danish vessels to the same exemption by virtue of the most favored nation clause in the treaty.
    IV. The provisions of the Immigration Act if in conflict with a pre- ■ existing treaty must prevail in the courts of this country.
    V.The power given by the Aet 26 June, 1884 (23 Stat. L.,09, § 26), to the Secretary of the Treasury to remit an exaction “ illegally, improperly, or excessively imposed,” does not authorize him to remit a legal charge became it may involve the Government in a controversy with a foreign power.
    VI.The provision of the Revised Statutes, § 4227, relating to tonnage duties does not affect or limit the operation of the Immigration Act.
    
      The Reporters statement of the case:
    The following statement and findings were filed by the court:
    The claim or matter in the above-entitled case was trans-initted to the court by the Secretary of the Treasury on the 16th day of November, 1888, under the provisions of section 12 of the act of March 3, 1887, chapter 359 (24 Stat. L., 507).
    The claimants filed their petition November 28, 1888. The Attorney-G-eneral, by his assistant, filed a general demurrer, which we understand to mean, in a case of this kind, where no judgment can be entered, that the facts are admitted to be as stated in the petition, and the law therein claimed is denied. The case was brought to a hearing on the 11th day of February, 1889.
    The petition is as follows, so far as it alleges facts and is not argumentative, and is to be taken as the findings of fact:
    
      u The claimant, the Thingvalla Line, which is owned by citizens and subjects of Denmark, says that Funch, Edye & Co., of New York City, are its resident agents, and that on the 3d day of August, 1888, one of their steam-ships, the Geiser, owned as aforesaid, having cleared from Copenhagen, a port in Denmark, for the city of New York, arrived at said port with seven hundred and thirty-three passengers, citizens and subjects of Denmark, on which passengers the collector of the port of New York demanded, exacted, and collected of claimants, owners of said vessel, the sum of fifty cents per passenger; in all, the sum of three hundred and sixty-six dollars and fifty cents, to which demand, exaction, duty, and charge the claimants had protested; nevertheless, they were compelled to and did pay the same to said collector.
    
      44 The claimant says that said payment was claimed and exacted under section 1 of an act of Congress of date August 3, 1882, entitled ‘An act to regulate immigration,’ which provides 4 that there shall be levied, collected, and paid a duty of fifty cents for each and every passenger, not a citizen of the United States, who shall come by steamer or sail vessel from a foreign port to any port within the United Slates,’ which duty is made a lien upon the vessel, and becomes a duty thereon, for which it and its owners are responsible for the payment and from whom it wa,s and is collected.
    44 Among the provisions of the lievised Statutes is section 4227, which is as follows:
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    W Tv W TT W *7v TT
    44 Another act was passed, however,-on the 26th day of June, 1884, in which, in section 22, among other things, it is provided 4 that until the provisions of section 1 of the act of 1882 shall be made applicable to passengers coming into the United States by land carriage, said provisions shall not apply to passengers coming By vessels employed exclusively iu the trade between the ports of the United States and the ports of Canada and Mexico.’
    ##*###*
    “Now claimants say that in the treaty made between the King of Denmark and the United States in the year 1826, and continued in force by further treaty of 1857, it is provided [as therein set out].
    #######
    44 The claimants say that the payment of said three hundred and sixty-six dollars and fifty cents exacted of them and -paid to the collector was improper, illegal, and excessive, that no part thereof was properly collectible, and they have within one year from the date thereof applied to the Secretary of the Treasury to refund the same.
    44 That. they are exempt from said payment upon two grounds:
    44 First. That the 22d section of the Act of 1881 exempted passengers coming by vessels employed in trade between Canada and Mexico and the United States, which exemption became common to the Kingdom of Denmark and the subjects thereof under the first article of said treaty.
    44 Second. That under the second article of said treaty said passengers, citizens, and subjects of Denmark were and are entitled to perfect equality and reciprocity of commerce and navigation in the United States, and to frequent all the coasts and -countries thereof, and reside and trade there in all kinds of produce, manufactures, and merchandise, and to enjoy all the rights and privileges and exemptions in navigation and cornmerce which native citizens of tbe United States do or shall enjoy, submitting themselves to the laws, decrees, and usages there established to which native citizens or subjects are subjected.
    “That one of the exemptions of navigation and commerce aforesaid is the exemption contained in section 1 of the act of August 3,1882, which is granted to citizens of the United States from the payment of said sum of fifty cents when passengers on vessels from a foreign port to a port of the United States, which exemption, by force of said article second of said treaty, the subjects of Denmark are'equally entitled to.
    “ That nothing was due from said passengers on said vessel, subjects of Denmark, and as the said passengers were exempt from said payment, the collection of the same from said vessel upon which the law makes it a lien was an improper, illegal, excessive duty on said vessel, and an impairment of their rights and privileges acquired as subjects of Denmark under the treaties aforesaid.
    “ Claimant says that upon application to the honorable the Secretary of the Treasury to refund the same, the questions of law arising upon the facts were controverted, and they asked that the matter be transmitted to this court under section 12 of the Act of March 3, 1887, which has been accordingly done by letter of said Secretary, dated the 19th day ot' Eov. 1888, which is made part hereof, marked Exhibit A.
    “ That no assignment of said claim, or any part thereof, has ever been made, and claimant, ‘The Thingvalla Line,’is the owner and holder thereof, and is justly entitled to recover the full amount of $366.50; that there are no offsets or credits upon the part of the Government against said claim. Claimant has not in any way voluntarily aided, abetted, or given encouragement to rebellion against the United States Government, and believes the facts as stated in this petition are true.
    “ Claimants therefore pray that the court will report to .the Secretary of the Treasury the facts and conclusions of law which it shall find, and will find upon the trial that said duty upon their said steam-ship was and is an improper charge and exaction within the meaning of section 26 of the Act of June 26, 1884, and should be returned and refunded to them out of any money in the Treasury not otherwise appropriated, as provided in said act, and any and all other relief which the court can grant.
    “Geo. O. Glavis,
    “ Phil. B. Thohpson, Jr.,
    “ Of Counsel for Claimants.
    
    
      “ New York, November 24,1888.
    “ This is to certify that, in compliance with the provisions of the Act of August3,1882, Funch, Edye & Go., general agents, have paid to the collector of customs of the port of New York, on the entry on the 3d day of August, 1888, of the Danish S. S. G-eiser, from Copenhagen, and in behalf of said steam-ship, the sum of three hundred and sixty-six (366) dollars and fifty (50) cents duty upon seven hundred and thirty-three (733) passengers, then landed in said steam-ship at said port, i
    “Bec’d August 21,1888, three hundred and sixty-six and T5^dollars, ac. seven hundred thirty-three immigrants landed from steam-ship Geiser.
    “O. H. Taylor,
    “ Cashier Custom-House, N. T.
    
    “Exhibit A.
    “ Treasury Depart ment, Oeeioe oe Sect’y,
    “ Washington, I). G., Nov. 16, 1888.
    “ To the honorable the Chief-Justice and Judges
    
    
      of the Court of Claims:
    
    “ I have-the honor to transmit herewith the papers pertaining to the claim of Funch, Edye & Go., agents of the Thing-valla Line, now pending in this Department, for the refund of $366.50, levied under the provisions of the Immigrant Act (22 Stats., 214), on the owners of the steamer Geiser of said line, for 733 alien passengers, citizens and subjects of Denmark, brought into the port of New York by said steam-ship, and paid by said agents August 3, 1888, to the collector of customs at New York, which claim involves controverted questions of law.
    “ The said claim is transmitted to your honorable court with the consent of the claimants and under and by authority of section 12 of the act of Congress approved March 3, 1887, for such consideration and action as may be authorized by law.
    “ Very respectfully,
    “ G. S. Fairchild,
    “ Secretary A
    
    
      Mr. Felix Brannigan (with whom was Mr. Assistant Attorney-General Howard) for the demurrer :
    (1) If this is a claim growing out of or dependent on a treaty stipulation entered into by the United States with a foreign nation, the Secretary of the Treasury has .no power to transmit it to the Court of Olaims under section 12 of the act approved March 3,1887 (24 Stk L., 505).
    (2) The Supreme Court of the United States have decided all the questions presented in this case in the Head Money Gases (112 U. S. E., 580).
    
      Mr. Phil. B. Thompson, jr., opposed:
    (1) If there is an irreconcilable conflict between the statute and treaty, until the treaty is abrogated the President has a right of election which law he will enforce.
    (2) In this case there is no irreconcilable conflict between the treaty and statute; there was no intention upon the part of Congress in the passage of the act of 1882 to interfere with treaty stipulations with' Denmark.
    (3) All duties upon vessels found in the laws of “ commerce and navigation ” are subordinate to treaty stipulations.
    (4) The duty collected in this case is in violation of articles 1 and 2 of the treaty, and illegal and erroneous.
    (5) They are improperly imposed, and the Secretary should refund them as provided by law.
   Richardson, Ch. J.,

delivered the opinion of the court:

The claimants were the owners and the agents respectively of the Danish steam-ship Geiser, which, having cleared from the port of Copenhagen, in Denmark, arrived in the port of New York, and upon the entry thereof at the custom-house, August 3,1888, the collector of that port collected of them the sum of $366.50 upon 733 passengers not citizens of the United States, then landed from said vessél. This was done in accordance with the requirement of the Act of August 3, 1882, chapter 376, entitled “An act to regulate immigration” (22 Stat. L., 214), which provides in section 1:

u That there shall be levied, collected, and paid a duty of fifty cents for each and every passenger not a citizen of the United States who shall come by steamer or sail vessel from a foreign port to any port within the United States. The said duty shall be paid to the collector of customs of the port to which such passenger shall come, or if there be no collector at such port, then to the collector of customs nearest thereto, by the master, owner, agent, or consignee of every such vessel, within twenty four hours after the entry thereof into sqch port. * * * ”

The claimants made application to the Secretary of the Treasury to refund the money so collected, in exercise of his power under section 26 of Act of June 26,1884 (23 Stat. L., ch. 121, p. 59), which is as follows: ,

“ Sec. 26. That whenever any fine, penalty, forfeiture, exaction, or charge arising under the laws relating to vessels or seamen has been paid to any collector of customs or consular officer, and application has been made within one year from such payment for the refunding or remission of the same, the Secretary of the Treasury, if on investigation he finds such fine, penalty, forfeiture, exaction, or charge was illegally, improperly, or excessively imposed, shall have the power, either before or after the same has been covered into the Treasury, to refund so much of such fine, penalty, forfeiture, exaction, or charge as he may think proper, from any money in the Treasury not otherwise appropriated.”

Controverted questions of law having arisen upon that application, the Secretary of the Treasury, at the request of the claimants, transmitted the same to this court under the provisions of section 12 of the Act of March 3, 1887 (24 Stat. L., ch. 359, p. 507).

One of the grounds upon which the claimants rely to show that the money was illegally collected is the allegation that such collection is in violation of the terms of the Treaty of 1826 (8 Stat. L., 340), re-affirmed in 1857 (11 Stat. L., 720). On that account the counsel for the United States insists that the court has no jurisdiction and can not make any finding of facts and conclusions of law as required by said Act of March 3,1887, by reason of the prohibition contained in the following section of the Revised Statutes:

“ Sec. 1066. The jurisdiction of the said court shall not extend to any claim against the Government not pending therein on December one, eighteen hundred and sixty-two, growing out of or dependent on any treaty stipulation entered into with foreign nations or with the Indian tribes.”

We hold now as we held in the OMcTcasaw Nation Case (22 C. Cls. R., 247), that the restriction of that section does not apply to the peculiar jurisdiction of this court conferred by the Bowman Act of 1883 (22 Stat. L., 485), and by section 12 of the Act of March 3, 1887, before cited. The acts conferring juris-’ diction upon the court to find the facts, make conclusions of law, and give opinions in matters referred by heads of the Executive Departments without entering judgments, are of later date than tbe Revised Statutes, and they contain no restriction.

It is sufficient to refer to the Chickasaw Nation Case for a full exposition of our views on the subject.

We shall therefore proceed to a consideration of the law upon the facts admitted.

The treaty between the United States and Denmark (8 Stat., 340, and 11 Stat., 720) contains the following articles:

“ Ant. 1. The contracting parties, desiring to live in peace and harmony with all the other nations of the earth by-means of a policy frank and equally friendly to all, engage mutually not to grant any particular favor to .other nations in respeet of commerce and navigation which shall not immediately become common to the other party, who shall enjoy the same freely if the concession were freely made, or on allowing the same compensation if the concession were conditional.
“ Art. II. The contracting parties being likewise desirous of placing the commerce and navigation of their respective countries on the liberal basis of perfect equality and reciprocity, mutually agree that the citizens and subjects of each may frequent all the coasts and countries of the other (with the exception hereinafter provided for in the sixth article), and reside and trade there in all kinds of produce, manufactures, and merchandise; and they shall enjoy all the rights, privileges, and exemptions in navigation and commerce which native citizens or subjects do or shall enjoy, submitting themselves to the laws, decrees, and usages there established to which native citizens or subjects are subjected. But it is understood that this article does not include the coasting trade of either country, the regulation of which is reserved by the parties, respectively, according to their own separate laws.”

The claimants urge that the collection of this duty or tax is in violation of that treaty for two reasons :

(1) The act of 1882 excepts citizens of the United States from those passengers on account of whom the duty is levied, and so the claimants allege that the citizens of Denmark are entitled by the treaty to the same exemption.

(2) The Act of June 26,1884 (22 Stat. L., ch. 121, § 22, p. 58), makes a further exception of “ passengers coming by vessels employed exclusively in trade between the ports of the United . States and the ports of the Dominion of Canada or the ports of Mexico,” and so the claimants allege, this being a grant of a particular favor to Mexico and Canada, the citizens of Denmark are entitled to the same favor by reason of the first article of the treaty.

In the Head Money Oases (l 12 U. S. R., 580), to which the present claimants were parties, the record and briefs show that both these points were presented to the court and relied upon by the plaintiffs. From the opinion it is apparent that they made no impression upon the court. The cases were decided in fayor of tbe defendants, and it was distinctly held that even if any of the provisions of theTmmigration Act are in conflict with a pre-existing treaty with a foreign nation, the provisions of the act must prevail in all the judicial courts of this country. The claimants’ counsel seeks to have great force given to the word improperly” in the refunding section, 26, of the act of 1884, hereinbefore quoted, and he argues that if there be such conflict, the Secretary may .regard the tax as improperly collected, because it might involve the country in a controversy with a foreign nation. We can not concur in these positions taken by the claimants. In our opinion the word “improperly ” adds nothing in effect to the words “ illegally or' excessively imposed,” with which it is grouped in the section, and that if the provisions of the act are to prevail in all the courts of this country, as the Supreme Court say they are, they are equally binding on the Secretary of the Treasury, who must obey the law as all officers of the Government are bound to do. See also Bartram v. Robertson (122 U. S. R., 117); Whitney v. Robertson (124 U. S. R., 190); Kelly v. Hedden (124 U. S. R., 196).

There is another point raised in these cases which was not presented in the Head Money Cases, and which must be considered here. The claimants insist that the citizens of Denmark are exempt from the provisions of the Immigration Act of 1882 by reason of the following section of the Revised Statutes, found at the end of chapter 3, entitled “ Tonnage duties,”' in title 48, entitled “ Regulation of commerce and navigation

“ Seo. 4227. Nothing contained in this title shall be deemed in anywise to impair- any rights and privileges which have been, -or may be, acquired by any foreign nation under the laws and treaties of the United States relative to the duty on tonnage of vessels, or any other duty on vessels.”

The argument is that the Immigration Act relates to commerce and navigation, and so is in amendment of said title 48 •of the Revised Statutes, and is to be construed as though it were incorporated into and formed part of that title, where it would be limited by the provisions of said section 4227,

In our opinion this argument is not sound and we can not adopt it as leading to the true construction of the statutes. While the act does, in a certain sense, relate to commerce and navigation, we are unable to find any of the numerous sections of the nine chapters of title 48 of the Bevised Statutes which are in the least amended or affected by it. The act contains entirely new and independent legislation, and makes no reference to pre existing laws. It is entitled “An act to regulate immigration,” and its place in the Bevised Statutes, if it were to be incorporated therein, would be in “ Title 29 — Immigration.”

Moreover, section 4227, upon which the claimants rely as controlling this act of 1882, was a reproduction in condensed language of section 3, chapter 107, of the Act of April 27, 1816 (3 Stat. L., 314); section 1, chapter 3, of the Act of January 14,. 1817 (3 Stat. L., 344), and section 15, chapter 163, of the Act of July 14, 1862 (12 Stat. L., 558), wherein the provisions relate-only to duties on tonnage, and it is now found in a chapter of' the Bevised' Statutes entitled Tonnage duties.” To extend its force so as to affect subsequent legislation on the subject of' immigration would be contrary to the rules of construction of statutes and against the clear intent of Congress.

On the whole case our conclusion of law is that the head money paid by the claimants was not illegally, improperly, or excessively imposed, and that the Secretary of the Treasury ha's no authority to refund it.

The clerk will certify a copy of the foregoing findings and conclusion of law to the Treasury Department, by which the, case was transmitted to this court.  