Memphis daily appeal. [volume] (Memphis, Tenn.) 1847-1886, 1875-07-20
THE COTTON TAN.
Decision from the supreme Bench Of
the United states Affirming iis
COnsIituiiOnaIfty.'
The Circuit Court for the Middle Dis
tFict OF Tennessee Furnishes
TEST Case.

Test Case.
On Wednesday last, in tine United
States supreme court, the following opin-
ions were given:
Nos. and Il.-7-Andrew Hamilton
ct al. CeTSuS Joseph 4 Dillin, in error to
the circuit court for the middle district
OF Tennessee. ll-Ssmuel M'Clelland
It at. UeTSuS the United States-appeal
from the court of claims. Nj. Justice
Bradley delivered the opinion of the
court.
This was an action Of assumpsir,
brought by the plaintiffs in error against
the defendant in error, TO recover q
charge or bonus Of four cents per pound
paid by the plaintiffs TO the defendant "a
surveyor of the port of Nashville, Ten
nessee, from August, 1868, to July, 1864,
for permission to purchase and ship to
the loyal States certain lots of cotton,
amounting to over seven million pounds.
This payment was one Of the fees OF
charges required by the regulations Of
the treasury department, to be made as
q condition OF carrying on the said trade
between those portions Of the insurrec-
tinnsry States within the lines of Occu-
States. BY the bill of exceptions it APP
pears to have been admitted on the trial
that the defendant was acting as sur
veyOr OF customs at Nashville dur
ing the period in question, and
was the only person that could
grant the necessary permits, and that
the plaintiffs bad in their possession, as
owners or factors. various lots Of cotton,
specified in the bill OF exceptions, which
had been purchased in pursuance Of the
decree Of the President and the reguis-
tons of the secretary OF the treasury III
that regard; that they applied TO the de.
PENDANT for permits to ship and trans
port said cotton from Nashville to a loyal
State, and that the defendant, in Obe-
dience TO said regulations and instruc-
tioDs, refused TO grant such permit ex-
cept on payment of the four cents per
pound. Ii is also admitted that the
regulations were well and publicly
known IS Nashville, and directed seizure
and cOnti5catiOn OF all cotton shipped
without such payment or permit, and
that the plaintiff made no formal protest
against the payment Of the charge, but
paid the same, and that the same was
paid 10y the defendant into the treasury
of the United States before the com
mencement of this action. 1t was slso
admitted that during said period Nash
vile was within the lines of military
occupation of the United States. The
plaintiff then put in evidence the treas
ury regulations in force q. the time Of
the shipment of the cotton in question.
These regulations prohibited the trans
pOrtStiOn of goods or merchandise to or
from sny State or part Of State in in
surrectiCn except under permits,
certificates and clearances, as pro-
vided therein; and the surveyors Of
the customs at Nashville and
other places were designated as the Off
GERS TO grant such permits. Authority
to purchase and transport goods was to
be granted only to those who should
make the prescribed affidavit, and enter
into bond to yay all fees required by the
regulations; and no permit was to be
granted for such purchase and transport
tatiOn except upon the payment Of such
fees, or the giving of bond to secure
the SAME. The fees referred to and ap-
pended to the regulations, and making
part Thereof, cOnsis .eG Of various items
and charges to be paid, and, among
Others, "FOr each permit to purchase
cotton in an insurrectiOnary district and
to transport the same to loyal State,
per pound, four cents" This is the fee
or charge which was paid for the permit
to purchase and transport the cotton in
question, and which is sought to be Ie.
covered. The plaintiffs insisted, and
requested the court to charge substan-
TALLY as follows:
That this eXactiOn was Illegal and
void; that it was essentially q tax not
authorized by any act Of congress, which
alone has the power to impose taxes;
that even if it were authorized by law,
the law itself was to that extent uncOn-
stitutiOnal and void, and that under the
circumstances and state of facts sgreed
upon by the parties the payment wss
involuntary, and 10 protest was neces-
ssry to entitle the plaintiffs to recover
back the money thus illegally exacted.
The court refused - charge as request
ed by the plaintiffs, out Charged as fol-
lowe:
First-Tnat the act Of July Is. 1861,
entitled IAN act further to provide for
the collection OF duties on imports, and
for other purposes" conferred power up
on the secretary of the treasury TO au-
thOrize the eXactiOns mentioned in said
PLAINTIFF declarations.
SecOnd-That whether said act OF July
Is, 1851, conferred such power or not,
the action Of the secretary Of the trea-
sury in imposing and of the defendant
in making said ezaCtiOns was ratified
and made valid by the act of July 2,
1864, entitled "An act in additi n to the
several aCis concerning commercial in
tercourse between loyal and insurrec-
tiOnary States, and 10 provide for the
collection OF captured aud abandoned
property, and the prevention of frauds
in States declared in Instruction.
Third-Thst plaintiffs could not main
tain action to recover back said exsctiOD,
even # they had been Illegal, for want
OF having protested against them at the
time of payment.
To this charge exceptions were taken,
and we are called upon to decide as to
the correctness Of these propositions.
There can be no question that the con-
dition requiring the payment Of four
cents per pound for 8 permit TO purchase
cotton in, and transport it from the in.
States during the civil
war, was competent to the war power Of
the United States government to i'm
pose. The war was q public one. The
government, in prosecuting it, had at
least al the rights which any belligeTent
power has when prosecuting public war.
That war WAS itself a suspension of com
intercourse between the oppos-
ing sections of the country. No cotton
or other merchandise could be lawfully
purchased in the insurrectiOnsry States
and transported to the loyal States with
out the consent Of the government. II
such a course OF dealing were to be per-
mitted at all, it would necessarily be |
upon such conditions as the government
chose to prescribe. The war power
vested in the government implied all
this without any specific mention Of it
in the constitution.
In long opinion the court reviews
the questions presented, and affirrIs the |
ruling and judgment Of the court below. |
The second case is decided by the judg- |
meut in the first.
RIYER REPORTS |