Opinion of the Court-Sawyer, C. J.

[April,

court held that duties could only be collected on the weight actually received. Says the court: "The general principle applicable to such a case would seem to be, that revenue should be collected only from the quantity or weight that arrives here; that is, what is imported, for nothing is imported till it comes within the limits of a port." *

* *

*

"As to imports, they therefore can cover nothing which is not actually brought into our limits. That is the whole amount which is entered at the custom house; that is all which goes into the consumption of the country; that, and that alone, is what comes in competition with our domestic manufactures; and we are unable to see any principle of public policy which requires the words of the act of congress to be extended, so as to embrace more. A deduction must be made from the quantity shipped aboard, whenever it does not all reach the United States, or we shall, in truth, assess here what does not exist here. The collection of revenue on an article not existing, and never coming into the country, would be an anomaly, a mere fiction of law, and is not to be countenanced where not expressed in acts of congress, nor required to enforce just right."

"It is also the quantity actually received here, by which alone the importer is benefited. It is all he can sell again to customers. It is all he can consume. It is all he can re-export for drawback." (9 How. 632. Affirmed in United States v. Southmayd, Id. 646.) The same rule was upheld in regard to brandy in Lawrence v. Caswell, 13 Id. 488. So the weight of tea, as actually imported, was adopted as the proper basis for collecting duties, in United States v. Nash, 4 Cliff. 107. See, also, Schuchard v. Lawrence, 3 Blatchf. 397.

But if the case is within the terms of the regulation, it is difficult to see where the secretary obtains authority to require what the statute does not. Is it not enough, that it affirmatively appears what amount of goods is actually brought into the United States, without showing why more was not imported? As was well said by counsel, "the cause, and not the fact of non-importation, is made the ground

1883.]

Opinion of the Court-Sawyer, C. J.

Duties are

of relief from the impost to the merchant." levied under the statute, and the decision of the supreme court construing the statute upon the amount of goods actually imported; and when it is shown what amount is, in fact, actually imported, the importer, certainly, cannot be required by regulations of the secretary to show affirmatively why he did not import more, as a condition of being relieved from paying duties upon goods, which it appears he did not, in fact, import. Some express authority should be shown for establishing such a burdensome rule. In many cases it would, doubtless, be impossible for the importer to show, affirmatively, what had become of his goods; and if it appears that they have not been imported, that should be sufficient. At all events, independent of some act of congress to the contrary, if an importer, under such a rule, adopted for the convenience of the department, is compelled to pay duties, against his protest, on goods never imported, the rule cannot avail as a defense to an action to recover the money thus, wrongfully, exacted. The only statute cited, as justifying the regulation, is section 251, R. S., which provides that the secretary of the treasury "shall prescribe forms of entries, oaths, bonds, and other papers, and rules and regulations, not inconsistent with law, to be used under and in execution and enforcement of the various provisions of the internal revenue laws, or in carrying out the provisions of law relating to raising revenue from imports, or to duties on imports." This certainly does not authorize the collection of duties on goods not in fact imported, unless the importer of goods shows, affirmatively, why he did not import more. Nor does it authorize a regulation which shall prevent an importer from recovering moneys illegally exacted from him on goods never imported. To thus adopt a rule by which duties are collected on goods not imported, when under the statute only duties on goods, in fact, imported are authorized to be collected, would be to adopt a regulation "inconsistent with the law." Section 2921 of the revised statutes expressly provides that "if on the opening of any package a deficiency of any article shall be found on examination by the appraisers, the same shall

Opinion of the Court-Sawyer, C. J.

[April, 1883.

be certified to the collector on the invoice, and an allowance for the same shall be made in estimating the duties." And section 2920 provides for weighing and measuring when there is a deficiency. The importer is not required by the statute to show why there is a deficiency, or how it occurred, as a condition of not paying duties on more goods than he has, actually, imported. He is entitled under the statute to the exoneration, upon the fact of deficiency appearing. Other penalties are provided by law for certain (See Gray v. Lawrence, 2 Blatchf. 117; Lening v. Maxwell, Id. 126.) No other statute authorizing such a rule, or the exaction of the duties sued for has been brought to the notice of the court.

I think plaintiffs entitled to recover the amount claimed, and judgment will be entered accordingly.

INDEX.

ADMIRALTY.

1. COLLISION.-Damages decreed against a vessel overtaking another vessel
for not keeping out of her way. Simpson v. Spreckels, 229.

2. PLEADINGS.-New matter in an answer constituting a defensive allegation
should be articled and pleaded separately, and not blended with the re-
sponse to any article of the libel. The Whistler, 233.

3. EXCEPTIONS.—Exceptions to an answer for insufficiency and impertinence
are taken for entirely different causes, and therefore they ought not to
be taken to the same matter either conjunctively or disjunctively. Id.
4. PILOT SERVICE-PLACE OF TENDER OF.-A state may permit or require its
pilots to tender their services to inward-bound vessels at a greater dis-
tance from the shore than three miles, or the outward limit of the pilot
ground. Id.

5. IDEM OFFER OF, WHEN SUFFICIENT.-The bark Whistler was approaching
the mouth of the Columbia river, with intent to enter and load there as
soon as one of the three pilot tugs stationed there should come out to her
without orders to go elsewhere; and being met by one of said tugs with-
out such orders, she was taken in tow thereby and went in, but on the
day before, and while she was standing off and on about thirty miles from
the bar, she was hailed by an Oregon schooner pilot, who tendered his ser-
vices to pilot her in, which were refused. Held, that the vessel was "bound
in the river," within the meaning of the statute giving full pilotage for the
offer and refusal of such services, and having afterwards gone in, the
' libellant became entitled to such pilotage. Id.

6. COLLISION.-Where a steamer and schooner came into collision, the
schooner having been seen approaching a mile and a half distant, the
steamer was held to be in fault and liable. Steamer Ancon v. Thompson,
334.

7. FOG OR HAZE AND SMOKE.-The night being foggy, or hazy, or both, it
was the duty of the steamer to moderate her speed, and blow her
whistle. Id.

8. INEXCUSAble NegligenNCE.-If the schooner was seen from the steamer at
a distance of a mile and a half, the negligence on the steamer in not
keeping out of the way was inexcusable. Id.

9. FOG. In the condition of the atmosphere in this case, there was no fault
in the schooner in not discovering the steamer at an earlier period of
time. Id.

10. NO FAULT IN SCHOONER.-Under the circumstances in this case, it was not
a fault in the schooner, to put her helm hard-a-port at the time she did,
nor was she in fault in other respects. Id.

11. CHARTER-PARTY-DETENTION-LIABILITY OF CHARTERER.-Where the
voyage described in the charter-party was a voyage "to San Francisco,
or as near thereto as the vessel can safely get," and the cargo was to be
delivered "alongside of any craft, steamer, floating depot, wharf, or pier,
as may be directed by the consignees," and the consignees named a wharf
to which, by reason of its crowded state, the vessel could not enter for a
time greater than that within which, by other provisions in the charter-
party, the discharge was to be effected after it had been commenced:
Held, that the charterer was liable for the detention. Williams v. Theo-
bald, 445.

ALASKA.

1. SPIRITS AND WINE-INTRODUCTION OF, INTO ALASKA.-By the act of
March 3, 1873 (17 Stat. 530), the introduction of spirituous liquors and
wine into Alaska is absolutely prohibited, subject to the power of the
war department to permit such introduction for the use of the army
therein; and, semble, that section 2 of the Alaska act of June 27, 1868
(15 Stat. 240; sec. 1954 R. S.), which gave the president "power to re-
strict and regulate or to prohibit the importation and use of
distilled spirits” into Alaska, is still so far in force, notwithstanding the
passage of said act of March 3, 1873, as to authorize him to permit the
introduction of said spirits, but not wine, as a regulation of the subject.
United States v. Stephens, 117.

2. ATTEMPT TO INTRODUCE SPIRITUOUS LIQUORS INTO ALASKA.-By section
20 of the act of June 30, 1834 (4 Stat. 729), extended over Alaska by the
act of March 3, 1873, supra, it was made a crime to attempt to introduce
spirituous liquors or wine into Alaska: Held, that a person resident in
Alaska, who ordered one hundred gallons of whiskey to be shipped to him
at Alaska, by a wholesale dealer in San Francisco who had the whiskey
on hand and for sale, with intent to introduce the same into Alaska, was
not guilty of such attempt, because he had done no act to accomplish
his illegal intent of which the law will take cognizance-the offer to pur-
chase the liquor, and even the purchase itself, being acts preparatory
and indifferent in their character. Id.

3. SAME.-Semble, that a criminal attempt to introduce liquor into Alaska
cannot be committed unless the act done in pursuance of the illegal in-
tent is performed after the liquor is brought so near some point or place
of "the mainland, islands, or waters" of the district as to render it
convenient to introduce it from there, or to make it manifest that such
was the present purpose of the parties concerned. Id.

ASSESSMENT.

See GARNISHMENT, 1; MINING CORPORATION, 3.

BROKER.

1. SALE OF REAL PROPERTY BY A BROKER.-A contract to sell real property
for a commission is performed when the broker procures a person who is
able to pay for the same, to enter into a valid contract to purchase upon
the terms proposed, or when he induces such person to offer to pay for the
property and take a conveyance thereof upon being allowed a reasonable