US SUPREME COURT DECISIONS

1. Under the ninth section of the Act of July 13, 1866, laying on the owners of steamboats a tax of " 2 1/2 percent of the gross receipts from passengers," the owners of a night boat which receives a certain sum for the mere transportation of persons (that is to say, for their passage, or barely being on the boat during its transit), and also a certain sum for the use of berths and state rooms (which berths and state rooms it was not obligatory on the passengers to take or pay for, and which persons who were willing to sit up all night did not take), is chargeable with 2 1/2 percentum on the latter sort of receipts as well as on the former.

2. A proviso to an existing act held to have been repealed by an act which "amended" the former act, "by striking out all after the enacting clause and inserting in lieu thereof, the following," this "following" being in part an iteration of the words of the section amended, and in part new enactments.

3. The proviso in the fourth section of the Act of March 3, 1865, exempting a certain class of steamboats from a tax of 2 1/2 percent, which was laid on all steamboats by the one hundred and third section of the Act of June 30, 1864, fell by the enactment of the ninth section of the Act of July 13, 1866, which "amended the first-named act by striking out all after the enacting clause and inserting in lieu thereof the following," this "following" being in part an iteration of the words of the section of the Act of June 30, 1864, amended, and in part new enactments.

The New Jersey Steamboat Company had a night line of steamboats which ran between New York and Albany, and chanrobles.com-red

Page 85 U. S. 479

which paid tonnage duty in conformity with the laws of the United States. The boats were furnished with berths and state rooms. But it was not obligatory on passengers going on the boats to take either. They might pay for a passage only -- that is to say, pay for the "bare right" to be on the boat, while it was going from one place to the other, in which case they would have to sit up all night, or they might pay in addition to the passage money a certain sum, in which case they had the privilege to occupy a berth or a state room. The accounts of passage money received were kept distinct from those of money received for berths or state rooms.

In this state of things, the collector of the United States at New York, asserting that he was justified by the ninth section of an Act of Congress of July 13, 1866, hereinafter set forth, demanded from the company the sum of $7,972.66, which he alleged to be a tax assessed at the rate of 2 1/2 percent on the company's "gross receipts from passengers" during the summer of 1869.

The sum just mentioned was thus made up:

For the transportation of passengers (passage money) . . $4,831.99

For berths or state rooms. . . . . . . . . . . . . . . . 3,140.67

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$7,972.66

If the government had a right to lay a tax on the company for passage moneys and the price of berths and state rooms let, it was not denied that the sums charged were the right ones, but the company denied:

1st. That it was bound by the act relied on by the collector, or by any other act, to pay a tax on either item of its receipts.

2d. That if it was bound by that act or any other act to pay the tax on the first item, it was bound to pay it on the second.

Having, however, paid both on compulsion, and under protest, it now, December, 1869, sued the collector to recover both, or at least the latter.

Whether the company was bound to pay any tax depended chanrobles.com-red

Page 85 U. S. 480

upon the fact whether the statute relied on by the collector and giving generally a tax, had repealed a previous statute relied on by the company, and discharging specifically from tax all companies which paid a tonnage duty, which confessedly this company did pay.

The case as to these statutes was thus:

An Act of July 14, 1862, [Footnote 1] entitled "An act increasing temporarily the duties on imports and for other purposes," by its fifteenth section laid a tonnage tax of 10 cents per ton on all steamboats.

An Act of June 30, 1864, [Footnote 2] to provide revenue to support the government, and to pay interest on the public debt and for other purposes, by its one hundred and third section laid, in addition, "a tax of 2 1/2 percentum upon the gross receipts" of steamboats "engaged or employed in transporting passengers or property for hire." It made certain other provisions about taxation.

An Act of March 3, 1865, [Footnote 3] by its fourth section increased the tonnage duty on steamboats to 30 cents per ton, and by a proviso to the section enacted,

"That the receipts of vessels paying tonnage duty shall not be subject to the tax provided in section one hundred and three of 'An act to provide revenue,' &c., approved June 30, 1864, nor by any act amendatory thereof. [Footnote 4] "

Page 85 U. S. 481

An Act of July 13, 1866, entitled "An act to reduce internal taxation, and to amend an act entitled &c., approved June 30, 1864, and acts amendatory thereof," by its ninth section, [Footnote 5] amended the one hundred and third section of the Act of June 30, 1864, "by striking out all after the enacting clause and inserting in lieu thereof the following."

It then inserted provisions laying the same tax of 2 1/2 percentum of gross receipts on "steamboats, engaged or employed in the business of transporting passengers for hire," and made some other changes, more or less considerable in other matters provided for in this one hundred and third section. Its seventieth section was thus:

"All provisions of any former act inconsistent with the provisions of this act are hereby repealed."

I. The reader will perceive from what has been thus far said that the question was whether this ninth section of the Act of July 13, 1866, which "amended" the one hundred and third section of the Act of June 30, 1864, "by striking out all after the enacting clause and inserting in lieu thereof" certain provisions in part identical with the old ones and in part not so, did not only abrogate that section of that act, but whether it swept away also with it, as something in its nature inseparable from it, the proviso in the fourth section of the Act of March 3, 1865, exempting steamers paying tonnage from the tax.

The solution of this question requires a fuller exhibition than that which, for the purpose of a general idea, is above given of the whole language of the two enactments -- that is to say, of the one hundred and third section of the Act of June 30, 1864, and the ninth section of the Act of the date just given, which the collector contended had not only repealed this section of the Act of June 30, 1864, but annihilated also the proviso in the fourth section of that of March 3, 1865. The two sections of the two acts are here set out one after the other, words existing in one and not existing in chanrobles.com-red

Page 85 U. S. 482

the other being put in italics.

"ACT OF JUNE 30, 1864"

"SECTION 103. That every person, firm, company, or corporation, owning or possessing, or having the care or management of, any railroad, canal, steamboat, ship, barge, canal boat, or other vessel, or any stage coach or other vehicle, engaged or employed in the business of transporting passengers or property for hire, or in transporting the mails of the United States, or any canal, the water of which is used for mining purposes, shall be subject to and pay a tax of two and one half percentum the gross receipts of such railroad, canal, steamboat ship, barge, canal boat, or other vessel, or such stage coach or other vehicle, ['Provided, That this section shall not apply to those teams, wagons, and vehicles used in the transportation of silver ores from the mines where the same are excavated to the place where they are reduced or worked.'] [Footnote 6]"

Provided that the duty hereby imposed shall not be charged upon receipts for the transportation of persons or property, or mails between the United States and any foreign port; ["but such duty shall be assessed upon the transportation of persons and property from a port within the United States through a foreign territory to a port within the United States, and shall be assessed upon and collected from persons, firms, companies, or corporations within the United States, receiving such freight or transportation."] [Footnote 7] and any person or persons, firms, companies, or corporations, owning, possessing, or having the care or management of any toll road, ferry, or bridge, authorized by law to receive toll for the transit of passengers, beasts, carriages, teams, and freight of any description over such toll road, ferry, or bridge, shall be subject to and pay a duty of three percentum on the gross amount of all their receipts of every description. But when the gross receipts of any such bridge or toll road shall not exceed the amount necessarily expended to keep such bridge or road in repair, no tax shall be imposed on such receipts, provided that all such persons, companies, and corporations shall have the right to add the duty or tax imposed hereby to their rates of fare whenever their liability thereto may commence, any limitations which may exist by law or by agreement with any person or company which may have paid or be liable to pay such fare to the contrary notwithstanding:

"And provided further that no tax under this section shall be assessed upon any person, whose gross receipts do not exceed one thousand dollars per annum."

"ACT OF JULY 13, 1866"

"SECTION 9. That section 103 (of Act of June 30, 1864) be amended by striking out all after the enacting clause and inserting in lieu thereof the following: That every person, firm, company, or corporation owning or possessing, or having the care or management of, any railroad, canal, steamboat, ship, barge, canal boat, or other vessel, or any stage coach or other vehicle, except hacks or carriages not running on continuous routes, engaged or employed in the business of transporting passengers for hire or in transporting the mails of the United States upon contracts made prior to August 1, 1866, shall be subject to and pay a tax of two and one half percent of the gross receipts from passengers and mails of such railroad, canal, steamboat, ship, barge, canal boat, or other vessel, or such stage coach or other vehicle:"

"Provided that the tax hereby imposed shall not be assessed upon receipts for the transportation of persons or mails between the United States and any foreign port, but such tax shall be assessed upon the transportation of persons from a port within the United States through a foreign territory to a port within the United States, and shall be assessed upon and collected from persons, firms, companies, or corporations within the United States, receiving hire or pay for such transportation of persons and mails; and so much of section 109 as requires returns to be made of receipts hereby exempted from tax when derived from transporting property for hire is hereby repealed. Provided also that any person or persons, firms, companies, or corporations, owning, possessing, or having the care or management of any toll road, ferry, or bridge, authorized by law to receive toll for the transit of passengers, beasts, carriages, teams, and freight of any description over such toll road, ferry, or bridge, shall be subject to and pay a tax of three percent of the gross amount of all their receipts of every description. But when the gross receipts of any such bridge or toll road for and during any term of twelve consecutive calendar months shall not exceed the amount necessarily expended during said term to keep such bridge or road in repair, no tax shall be assessed upon such receipts during the month following any such term. Provided further that all such persons, companies, and corporations, shall, until the 30th day of April, 1867, have the right to add the tax imposed hereby to their rates of fare whenever their liability thereto may commence, any limitations which may exist by law or by agreement with any person or company which may have paid or be liable to pay such fare to the contrary notwithstanding."

And whenever the addition to any fare shall amount only to the fraction of one cent, any person or company liable to the tax of two and a half percentum may add to such fare one cent in lieu of such fraction; and such person or company shall keep for sale, at convenient points, tickets in packages of twenty and multiples of twenty, to the price of which only an amount equal to the revenue tax shall be added. And provided further that no tax under the foregoing provisions of this section shall be assessed upon any person, firm, company, or corporation, whose gross receipts do not exceed one thousand dollars per annum.

And provided further that all boats, barges, and flats not used for carrying passengers nor propelled by steam or sails which are floated or towed by tug boats or horses, and used exclusively for carrying coal, oil, minerals, or agricultural products to market shall be required hereafter, in lieu of enrolment fees or tonnage tax, to pay an annual special tax for each and every such boat of a capacity exceeding twenty five tons and not exceeding one hundred tons five dollars, and when exceeding one hundred tons, as aforesaid, shall be required to pay ten dollars, and said tax shall be assessed and collected as other special taxes provided for in this act.

"SECTION 7. . . . All provisions of any former act inconsistent with the provisions of this act are hereby repealed."

The question was, did the proviso of the Act of March 3, 1865, exempting from the tax laid by section one hundred and three of the Act of 1864 (the act first set out above), on all steamers which paid a tonnage tax, remain chanrobles.com-red

Page 85 U. S. 485

notwithstanding the ninth and seventieth sections of the later Act of July 13, 1866 (the second act set out above)?

But the question was perhaps not dependent even upon all that precedes, for finally came an Act of Congress of July 14, 1870, [Footnote 8] which in its twenty-fifth section referred to the proviso in the one hundred and third section of the Act of June 30, 1864, as apparently then in force, and repealed it. This act ran thus:

"SECTION 25. And be it further enacted that section fifteen of the act approved July 14, 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 3, 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 30, 1864, requiring an annual special tax to be paid by boats, barges, and flats, is hereby repealed."

II. But if the Act of 1866 was in force, unqualified by the proviso, and if the company was "to be subject to and pay a tax of 2 1/2 percent of the gross receipts from passengers," the next question was whether the $3,140.67 came within that enactment, this sum not having been received for passage, and being for another thing, to-wit, for the right to occupy and sleep in berths and state rooms.

The court below was of opinion against the steamboat company on both points, and, giving judgment for the collector, the company brought the case here. chanrobles.com-red

Page 85 U. S. 489