United States v. Heth. 3 C.

the legislature to deserve compensation, and to be in their nature severable, from the ultimate act of the money being received, or collected, provided those acts are in reality performed.

My opinion is, that the defendant is entitled to three per cent. on all moneys collected and received by him, after the 30th June, 1800, on account of bonds previously taken, for duties arising on goods imported into the United States.

PATERSON, J. The basis of this action is the statute of congress of the 10th of May, 1800; and the question is, whether the defendant is restricted to a commission of two and a half per cent. on moneys collected and received after the 30th of June, 1800, by virtue of revenue bonds, executed previously to that date. The words of the statute are," that in lieu of the commission heretofore allowed by law, there shall, from and after the 30th of June next, be allowed to the collectors of Alexandria, Petersburgh, and Richmond, respectively, two and a half per cent. on all moneys which shall be collected and received by them, for and on account of the duties arising

on goods, wares, and merchandise imported into the Uni[*413] ted States, and on the tonnage of ships and vessels." The defendant was late collector of the customs for the district of Petersburgh, in the State of Virginia. 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 cannot be otherwise satisfied. This rule ought especially to be adhered to, when such a construction will alter the preëxisting situation of parties, or will affect or interfere with their antecedent rights, services, and remuneration; which is so obviously improper, that nothing ought to uphold and vindicate the interpretation, but the unequivocal and inflexible import of the terms, and the manifest intention of the legislature. The word "arising" refers to the present time, or time to come, but cannot, with any propriety, relate to time past, and embrace former transactions. As to the word "imported," it may comprehend the past or future, or both, according to the subject-matter, and the words with which it is associated. Thus the word " arising," coupled with the words "on goods imported," shows, that the whole clause has a future bearing and aspect, and will not justly admit of a retroactive construction. According to this view of the subject, the commission of two and a half per cent. is to be restricted to moneys received by the collector of Petersburgh, on account of the duties arising on goods, wares, and merchandise which shall be imported after the 30th of June, when the act went into operation. To fortify the foregoing

United States v. Heth. 3 C.

construction, it may be added, that the words of a statute, if dubious, ought, in cases of the present kind, to be taken most strongly against the law-makers.

CUSHING, J. The question referred to this court by the circuit court is, whether the defendant, as collector, by the act of the 10th of May, 1800, was restricted to a commission of two and a half per cent. on any or all of the moneys collected and received by him, after the 30th of June, 1800, on account of bonds previously taken for duties arising on goods, wares, and merchandise imported into the United States.

There was a prior act of congress, entitling the defendant

to three per cent. on all moneys received on account of du- [414] ties arising on goods imported into the United States, within

his district; which act was in full force during the time those duties arose, and until the subsequent act in question of the 10th of May, 1800, was to come into operation, which was the 30th of June following; and the question is upon bonds previously taken for duties arising on goods imported before the 30th of June. Upon this question I am of opinion, that the collector has a right to the three per cent. allowed by the former law, on all moneys secured by bonds previously taken as aforesaid, for duties arising on goods imported before the 30th of June, 1800; and that he is not restricted by the latter law to two and a half per cent. And that the general and true intent of the latter law was to make a new allowance in lieu of the former only on duties arising on goods imported after the last law came into operation, and not to have a retrospective effect, to devest vested rights of the collector; it being unreasonable, in my opinion, to give the law a construction, which would have such a retrospective effect, unless it contained express words to that purpose.

Whether the words "from and after the 30th of June," are in the beginning, middle, or end of the sentence, the meaning in this respect appears to me the same; to give the collector a new allowance on goods imported after that time.

When the former duties were secured by bond, the laws, I think, consider them, as far as regards the collector's allowance, as collected and received; the principal services being already done by securing the duties by bond.

MARSHALL, C. J., being one of the judges whose opinions were opposed in the court below, did not sit at this hearing.

6 H. 344.

Manella, Pujals & Co. v. Barry. 3 C.

[415]* MANELLA, PUJALS & COMPANY v. JAMES BARRY.

3 C. 415.

If a merchant abroad send a letter of instructions to a merchant here, by the hand of a person named in the letter, which declares the bearer to be the agent of the writer, and the bearer of his orders, and refers to him for verbal communications, the merchant here, has a right to act upon the belief, that such agent has discretionary authority to authorize a departure from the terms of the letter, in an emergency which was probably not foreseen.

ERROR to the circuit court of the United States for the district of Maryland.

The action was brought by the plaintiffs in error, to recover from the defendant, Barry, the price of three cargoes of tobacco, purchased and shipped by Barry, for account of the plaintiffs, but which were captured on their way to Spain, and condemned. The ground of the claim was, that Barry had not strictly pursued his instructions as to the shipments.

On the 27th of January, 1798, Bernardo Lacosta, of Cadiz, in Spain, for and on behalf of the plaintiffs, who were also Spanish subjects, wrote and transmitted to the defendant, by the hands of Juan Alonzo Menendez Conde, a letter in the Spanish language, the following translation of which, purporting to be made by a sworn translator, was read in evidence to the jury.

[ * 416 ]

*"CADIZ, 27th January, 1798.

"To Mr. JAMES BARRY, Baltimore. My most esteemed friend, I derive a particular satisfaction in introducing to you the bearer of this letter, Mr. Juan Alonzo Menendez Conde, who goes to Baltimore as agent of the house of Messrs. Manella, Pujals & Co., of this place, principally interested in the importation of tobacco for this kingdom. The confidence I have always had in you, and the friendship you have on all occasions manifested for me, warrant the conclusion that you will view this measure as your own, and will execute it with your wonted zeal and efficacy. Being an undertaking of considerable magnitude, a proportionable degree of economy should be observed in the purchases, the shipments, and the reimbursements, because the least neglect may cause an enormous loss. By the last accounts from America, I find that tobacco has risen to a great price, but I hope this was only momentary. However, upon a reasonable calculation, it will not answer them at more than ten dollars per quintal, in America; these are the limits to which they can go without exposing themselves to

Manella, Pujals & Co. v. Barry. 3 C.

too much loss. You will, however, consult the bearer, Mr. Menendez, or he with you, and in case you should determine on an advance of one fourth or one half a dollar more, to prevent delay, you may do so if you think proper, being fully convinced, if you can do it for less, that you will omit nothing that may advance the interest of my friends. With this, the said Mr. Menendez takes an order for twenty thousand quintals to be shipped for this place in seven or eight vessels, and not less than six, under which condition, the insurance will be made here. You will take care to seek captains of fidelity, American born, and that all the crews be strictly agreeable to law.

"For the greater perspicuity the shipments will be made in the following manner :

"1. You will lade the vessels in your own name, stating that they are on your own account and risk, as an American citizen, and consign them to this place, alternately to me, to Messrs. Gahn & Company, and to Messrs. Pablo, Greppi, Marliani & Company.

"*2. Your letter, by the vessel, will state that the con* 417 ] signment is made on your account; that you order her to Cadiz, where you hope that the consignees may be able to sell, but that if the government should not permit the sale, or the English prevent her entry, that then the vessel is to proceed to Genoa.

"3. That the captain carry no other letters than those relating to the cargo, but he must have one for Charles Longhy, of Genoa, to whom the consignment will be made, in the supposed case of not being suffered to enter this port, or be permitted to sell here.

"4. Should the captain be prevented entering here, he will put into the nearest Spanish port to this, and send an express to the consignee. "5. The captain will bring the charter-party, and the letter to cover the shipment; that, as well as the bill of lading, should specify two freights, one for Cadiz, and the other as though the vessel was in fact destined for Genoa.

6. In the invoice by the vessel, you will insert all the charges except the commission, which is understood shall be five per cent., to be hereafter added.

"7. By the way of England you will transmit the true invoices, adding thereto your commission.

"8. Great care should be taken, in the role d'equipage, as to the birth, age, size, &c., of the seamen, and that it agree in date and number with the shipping articles.

"9. Admitting that the vessel cannot enter here, there must not be any excess of freight on her going to another Spanish port; but this condition must be confidential with the captain, and must not appear in any document.

Manella, Pujals & Co. v. Barry. 3 C.

"10. The vessels should have Mediterranean passes, and, in a word, all other necessary documents, that we may have no difficulties with the privateers there; and if you could have the [*418] papers examined by the French, * English, and Spanish consuls in your country, it appears to me it might serve as a great protection.

"11. The bills of lading will be remitted by triplicates by the way of London or Lisbon, to Messrs. Pablo, Greppi, Marliani & Co., of this place.

"As to your reimbursements you may draw as follows, to wit: $80,000 on Don Juan de la Chappeaurouge and Urgulla, of Hamburgh; $40,000 on John Gore & Co., of London; $40,000 on Lorla & Co., of Amsterdam; $40,000 on A. E. and I. E. Metzeuca & Koosen, of Lisbon $200,000; which sum you will dispose of according to your wants, advising the persons on whom you draw, that it is on account of and by order of Messrs. Pablo, Greppi, Marliani & Co. You will take special care to avoid drawing too large a sum at once, and that the bills on those places be at ninety days' sight; it being always understood that in case you are able to negotiate upon Spain, you will draw on that country in preference, on Manella, Pujals & Co., of this place, and at sixty days' sight, and then you will specify whether it is to be paid in cash or in vales reales. Although I have already mentioned that the insurance should be made here, yet you will make that charge in the invoice sent as though it had been effected by you. I refer you to the verbal communications of the bearer on this subject, who is sent on purpose to superintend the shipments; and you will, upon the whole, act for the advantage of the interested, taking care to keep this business a secret in order to prevent a rise in your market, and its being known that it is for foreigners, but always that it is on your own account as an American citizen. "You will determine the quality of the tobacco to be shipped, with the said Mr. Menendez. It should be well assorted, very sound and dry, though it does not appear necessary that it should be all of the best quality.

"In order to avoid every unforeseen accident, in case any of the said houses should not accept the draughts above mentioned, which I do not apprehend, you will point out to the holders to present them to Messrs. Greppi, Marliani & Co., who will accept and [* 419 ] domicile them with our friends of the same place, as has been agreed on, and the said Messrs. Greppi have written to this effect to their correspondents. But we all flatter ourselves that this case will not occur.

"I remain, as always, your affectionate friend, (Signed) "BERNARDO LACOSTA."