Norse American Line of Steamers.

mitted by the letter of the Treasury Department of the 5th instant, viz: Whether the owners of the "Norse American line" of steamers plying between Norway and the United States "are entitled to a refund" of the moneys they have paid to the customs-officers of the United States for duties of tonnage, buoys, and light-houses, which moneys the government of Norway and Sweden claims, through their minister, in his note of March 25, 1874, were exacted and paid contrary to certain stipulations contained in the treaties with Sweden and Sweden and Norway above referred to. Secondly, it is inquired whether the Secretary of the Treasury, under sections 3012 and 3013 of the Revised Statutes, has the power to refund these moneys.

By article 2 of the treaty with Sweden of April 3, 1783, the King of Sweden and the United States engaged, mutually, not to grant thereafter any particular favor to other nations in respect to commerce and navigation which shall not immediately become common to the other party, &c. (8 Stat., 62.) This agreement, by the 17th article of the treaty of July 4, 1827, with Sweden and Norway, was revised and made applicable to all the countries under the dominion at that time of the two contracting powers, and it was declared to have the same force and value as if inserted in the text of the later treaty. (8 Stat., 354.) By article 8 of the treaty last cited, the contracting parties engage not to impose upon the navigation between their respective territories, in the vessels of either, any tonnage or other duties, of any kind or denomination, which shall be higher or other than those which shall be im. posed on every other navigation except that which they have reserved to themselves by the sixth article of the present treaty. (8 Stat., 350.) The sixth article refers only to coastwise navigation, and that between the ports of Sweden and those of Norway. (8 Stat., 348.) These mutual agreements, it is stated by the honorable Secretary of State, still exist, and are in force, and no doubt have been in force since the year 1827.

By article 4 of the treaty between the United States and Belgium of July 17, 1858, it was stipulated that steam-vessels of the United States and of Belgium, engaged in regular navigation between their respective countries, shall be ex

Norse American Line of Steamers.

empt from the payment of duties of tonnage, anchorage, buoys, and light-houses. (12 Stat., 1045.)

From the simple reading of these treaty provisions in the order above set forth, the conclusion is inevitable, that whatever favors or exemptions are enjoyed by the regular steam-navigation of Belgium plying between that country and the United States, are "common" to the like navigation of Sweden and Norway. For "no higher or other duties" can be imposed upon it in the ports of the United States than are imposed on every other navigation. The Departments of State and of the Treasury concede that the claim of this Norse line of steam-vessels to be exempt in the ports of the United States from the payment of duties of tonnage, &c., is just and reasonable, and they are brought to this concession by an examination and review of the treaty provisions above set forth. But if it is just and reasonable, now and in the future, that steam-vessels of Sweden and Norway, engaged in regular navigation between those countries and the United States, should be exempt, in the ports of the latter, from the payment of tonnage-duties, it has been so at all times in the past, since the ratification of the treaty with Belgium of July 17, 1858. No language can make this plainer than it is upon the face of the treaties.

It is stated by the honorable Secretary of State that as yet there has been no line of steam-vessels of the United States engaged in regular navigation between the United States and Sweden or Norway. It cannot, therefore, be certainly stated whether tonnage-duties would or would not be required of such vessels belonging to this country, in the ports of Sweden and Norway. It is to be presumed that they will, when the occasion shall arise, faithfully perform their duty under the treaties; for the obligations imposed by them are reciprocal. But either of the contracting parties may claim the benefit of them, even if the other should never inaugurate regular steam-navigation between the two nations.

It results from what has been said that the moneys which have been paid for duties of "tonnage, anchorage, buoys, and light-houses" by the "Norse American line" of steamers to the customs-officers of the United States have been exacted contrary to the stipulations of the treaties above set forth-con

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trary, therefore, to law. The amounts in the Treasury so collected are not the moneys of the United States, but belong to the owners of the said line of steamers. It is money had and received to their use, and they are entitled to have it refunded to them.

I pass now to the second inquiry. Section 3012 of the Revised Statutes provides, in substance, that when, to the satisfaction of the Secretary of the Treasury, it shall appear that more money has been paid to the customs officers of the Government than the law requires for duties, or other moneys, and protest and appeal to the Secretary has been made as required by law, he may refund the overplus, &c.

The facts of the case under consideration, in respect to overpayment, not only answer to the conditions set forth in the law, but go far beyond them. The language of the law implies that money is due to the Government in the case provided for, and that there is an overpayment. Here nothing was due. But I think the plain intent of the law is, that whenever money has been collected by the customs-officers of the Government that does not by law belong to it, and the appeal required by the statute has been made to the Secretary, he shall refund to the party whose money has been taken without warrant of law. It would be monstrous to hold that the Secretary may make restitution when a part only was unlawfully received, but cannot where the whole was exacted against law.

Section 3013 provides for the case of failure to comply with the requirements of the statute relative to the protest and appeal to the Secretary of the Treasury when that functionary is satisfied that such non-compliance is owing to circumstances beyond the control of the owner, master, consignee, or agent. In other respects it is substantially like the preceding section. The language is certainly broad enough to cover the cases supposed, viz, "cases in which, in the opinion of the Secretary of the Treasury, circumstances have rendered it impossible for the consignee or agent of the line to protest and appeal."

I am of opinion that, in the case as stated, it will not be overstepping the limit of the powers given by these provisions of law to the Secretary of the Treasury if he shall refund

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to the owners of the "Norse American line" of steamers the moneys exacted from them as "duties of tonnage, buoys, and light-houses" contrary to the aforesaid treaty stipulations.

It remains to inquire how far back the operation of these laws extends. Section 30122 is a re-enactment of section 16 of the act of June 30, 1864, (13 Stat., 215,) and section3013 of the 7th section of the act of July 28, 1866, (14 Stat., 329.) The law as declared in section 3012 has been in operation certainly since June 30, 1864. In respect to tonnage-duties it does not, I think, reach beyond that time in the past. Section 16 of the act of 1864 (identical with section 3012 Rev. Stat.) speaks of duties paid under protest and appeal "as herein before provided;" that is, in sections 14 and 15 of the same act. Section 14 (13 Stat., 215) provides that "in the case of duties levied on tonnage," (as well as on goods, wares, and merchandise,) unless the owner, master, commander, or consignee of the vessel "shall within ten days after the ascertainment and liquidation of the duties by the proper officers of the customs give notice, in writing, to the collector of objection to his decision, and within thirty days after the date of such ascertainment and liquidation appeal to the Secretary of the Treasury," the decision of the collector shall be final and conclusive. The section of the Revised Statutes corresponding to this is section 2931. There is no like statute in respect to tonnage duties prior to June 30, 1864. There is a similar law in case of goods, wares, and merchandise, to wit, section 5 of the act of March 3, 1857, (11 Stat., 195.)

It will be observed that the operation of section 3012 is dependent upon the condition that there should be notice in writing to the collector of objection to his decision within ten days after it is made, and an appeal to the Secretary of the Treasury within thirty days after the date of such decision, and there is no like requirement in the case of tonnage-duties prior to the 30th of June, 1864. It follows that said section cannot reach back in its effect beyond that date, so far as it concerns duties on tonnage.

It is hardly necessary to add that the same rule holds in regard to the operation of section 3013; for there could not be a failure "to comply with the requirements relating to appeals to the Secretary of the Treasury" before there were any such requirements.

Freedmen's Bureau-Generals Howard and Balloch.

As to duties of tonnage overpaid, or exacted contrary to law, prior to June 30, 1864, the question whether they can be refunded depends upon the law as it was before that date and the practice of the Treasury Department. The law of March 3, 1839. section 2, is applicable thereto, (5 Stat., 348.) I have the honor to be, very respectfully, your obedient servant, GEO. H. WILLIAMS.

Hon. B. H. BRISTOW,

Secretary of the Treasury.

FREEDMEN'S BUREAU-GENERALS HOWARD AND BALLOCH. The resolution of March 29, 1867, [No. 25,] was passed for the protection of a particular class of claimants described therein; its specific object being to more effectually secure to such claimants, through the instrumentality of the Freedmen's Bureau, the money due them from the Government, in cases where claims were prosecuted in their behalf by agents or attorneys.

To enable the Freedmen's Bureau to discharge the duty thereby devolved upon it, the checks and certificates issued at the Treasury on the settlement of such claims were required by the resolution to be made payable to the Commissioner of the Bureau.

The money drawn from the Treasury by the Commissioner upon those checks and certificates was public money, and retained that character while it remained in his hands, or until disbursed by him or his subordinates as directed in the resolution.

By the provisions of the 3d section of the resolution the Commissioner and those of his subordinates who were charged with the duty of paying out this money to the parties entitled to receive it, were subjected, in respect of the custody and disbursement of such money, to the same degree of responsibility and accountability to which a disbursing-officer of the Army was subject in respect of the public money in his hands. Therefore, the investment in Government securities of the public money in their hands, made by the Commissioner and the chief disbursing-officer of the Bureau, rendered them liable to severe penalties imposed by the acts of August 6, 1846, chap. 90, and June 14, 1866, chap. 122, and to be criminally prosecuted therefor under these acts. But though such investment was prohibited by the statutes last referred to, the profits derived therefrom in the shape of interest and premium inured solely to the United States; they were public money, and should have been accounted for by those officers the same as other public money. Neither of them could legally apply these profits to re-imbursing himself for erroneous or double payments made to claimants, or to paying employés of the Bureau extra compensation, &c.