Mr. Justice CLIFFORD
delivered the opinion, affirming the judgment.
Moneys paid for import duties, when illegally levied, may be recovered back by the owner, importer, or consignee in an action of assumpsit against the collector by whom the same were exacted, if the payment was made under written protest, as required by law, and the party making the payment failed to obtain redress by appeal seasonably taken to the Secretary of the Treasury.
Forty-one chests of indigo, the product of India, were, on the seventh' of July, 1865, imported by the plaintiffs from London, England, into the port of New York, and the agreed statement shows that the late collector of that port levied and exacted as duties thereon ten per centum ad valorem; that the plaintiffs paid the same under written protest, and that the decision of the collector levying the duties, on appeal duly taken to reverse the same, was affirmed by the Treasury Department.
They protested that the assessment was illegal upon the ground that the goods were entitled to be admitted to entry free of duty, and having failed to obtain redress from the Secretary of the Treasury for what they regarded as an ille gal exaction, they brought an action of assumpsit against the executors of the late collector to recover back the amount so exacted and paid' for the duties.
Process having been issued and served, .the defendants appeared and the parties went to trial, but they ultimately submitted the case to the decision of the court upon an agreed statement of facts. Before the case was finally submitted, however, the parties were heard, and the court subsequently rendered judgment for the defendants, and the plaintiffs sued out a writ of error and removed the cause into this court.
"Whether the goods imported in this case were dutiable or not depends upon the construction to be given to the sixth section of the act of the third of March, 1865, which provides that there shall be hereafter collected and paid on all goods, toares, and merchandise, of the growth or produce of countries east of the Cape of Good Hope (except raw cotton and raw silk as reeled from the cocoon, or not further advanced than tram, thrown, or organzine), when imported from p^ce.s west of the Cape of Good Hope, a duty of ten per centum ad valorem, in addition to the duties imposed on any such article when imported directly from the place or places of their growth or production.
Strike out the last clause,.commencing with the words "in addition," and thé body of,the section would be as clear as any enactment can be that all goods, wares, and merchandise (save-the two excepted articles), imported from places west of the Cape of Good Hope, if grown or produced in any -country east of the Cape of Good Hope, are by that provision subject to a duty often per centum ad valorem.
Argument upon that subject is unnecessary, as the proposition is as plain as anything in legislation can be, but if that clause had been omitted goods imported from London-, the growth nr production of India, would not have been subject to any higher rate of duty than goods of like kind imported directly here from India, the place of their growth or production, unless the goods were, by antecedent laws, sub jected tó a rate of duty higher than that-imposed in the section under consideration, which would have defeated wholly or partially both purposes which Congress had in view in enacting the new provision.
Congress desired to raise more revenue from importations consisting of articles grown or produced in countries east of the Cape of Good Hope, and at the same time to preserve and continue the discrimination established by existing laws in favor of importations made directly from the countries where the articles imported were grown or produced.
• Had the last clause of the section been omitted the new provision, in any view of the subject, would not have augmented the revenue to any considerable extent, and if construed as repealing the prior laws upon the same subject its effect would have been very largely the other way, and it' would have operated as a discrimination against the direct trade and in favor of the importation of such articles from countries west of the Cape of Good Hope, or in other words, it would have reversed the policy of the government by encouraging the indirect instead of the direct trade in the articles of commerce grown or produced in those distant countries. Evidently, therefore, the clause providing that the duty levied by the section was in addition to the duty imposed on any such article when imported directly from the place or places of their growth or production was an indispensable provision to carry into effect the purposes intended to be accomplished by the enactment.
All articles of the growth or product of countries east of the Cape of Good Hope, except the two named as exempted, when imported from places west of the Cape are declared to be subject to the rate of duty therein prescribed, and to prevent any misconception as to the intention of Congress and to close the door against any suggestion that the new provision repealed or modified the prior law, it was provided that the new duty was in addition to the duties previously "imposed on any such article " when imported directly from the place or places of their, growth or production. Ten per centum ad valorem is imposed on all such goods, wares, and merchandise, except the two articles named as exempted, whether they were or were not subject to duty as articles of direct trade under any antecedent law, if they fell within the conditions specified in the sixth section of the act imposing the duty.
Certain articles of the growth or production of countries east of the Cape of Good Hope were subject to'duty, even when imported here directly from the place of their growth or production, while other articles, when so imported, were entitled to be admitted to entry free of duty. Articles of the kind described in the section, not dutiable as articles of the direct trade under any antecedent law, were to pay only the ten per centum ad valorem specified in the section, but all articles previously dutiable as articles of the direct trade, save the two exempted in the body of the section, were to be subject, in case they were imported here as articles of the indirect trade, to a duty of ten per centum ad valorem in addition to the duty imposed under any prior law, in case the articles Were imported here directly from the place or places of their growth or production. Construed in that way, both of the purposes which Congress had in view were accomplished, as the provision had the effect to augment the révenue, and at the same time to preserve and continue the discrimination created by antecedent laws in favor of the direct trade, which is in accordance with the policy of our external revenue system as exhibited in all our laws upon the subject.
Eaw cotton and raw silk as reeled from the cocoon, or not further advanced than tram, thrown or organzine, were exempted from the new duty, or any other, by an exception inserted in the body of the section, and it is a reasonable conclusion that if Congress had intended to exempt any other articles of the growth or production of those countries, the articles would have been enumerated and included in that exception. Expressio unius est exclusio allerius.
Such an exception as that inserted in the body of the section was indispensable to exempt any such article from the new duty, as the introductory words of the section include, in express terms, all goods, wares, and merchandise, of the described character, when imported from places west of the Cape of Good Hope. Unless it can be assumed that the words " all goods, wares, and merchandise " are not used in their ordinary sense, it must be understood that they include all such articles of importation not specifically exempted, as the exception proves the rule, and shows to a demonstration that all such articles, except those, two are subject to the prescribed duty, and that the last clause was not superadded to exempt any other articles from the operation of the introductory words of the section, but to prevent the entire provision from being misunderstood and misapplied, so as to defeat one or both of the purposes which Congress had in view in passing the law. Confirmation of' this view is derived from the.antecedent legislation of Congress upon the same subject.
Duties on imports were temporarily increased by the act of the fourteenth of July, 1862, the fourteenth section of which levied " on all goods, wares, and merchandise of the growth or produce of countries beyond the Cape of Good Hope a duty of ten per cent, ad, valorem, and in addition to the duties imposed on any such articles when imported directly from the place,or places of their growth or production."
Attention need only be called to the last clause of that enactment, as it is not controverted that the legal effect of the body of the section, under which the duties in this case were levied and collected, is substantially the samé as the corresponding portion of that provision, but the suggestion is that the last clause in the last act is materially different from that of the. former, as it does not- contain the word " and" before the words "in addition," as employed in the prior act. Drop the word "and" before the words "in addition," as employed in the former-law, and the language of' the respective clauses is the same without the variation of a single letter.
Congress having subsequently repealed that provision, found it necessary at a later period to re-enact it, and in re producing the provision the word " and" before the words " in addition," as employed in the prior law, was dropped evidently because it was a redundant word wholly unnecessary to give expression to the meaning and intention of the law-makers'. When the act was transcribed for official publication the word "and" was italicized by the compiler of the acts of Congress as expressive of his opinion that it was a redundant word, as it plainly appears to be to every one acquainted with the revenue laws and the subject-matter to which the particular provision relates.
Importations of raw silk, soon after the passage of that act, were made from Liverpool, England, into the port of New York, and it was agreed in the statement of the case that the articles imported were the products of Persia and China. Ten per cent, dujy was exacted, and the merchant .paid the same under protest 'and brought assumpsit against the collector to recover back the amount paid. He was defeated in the Circuit Court and he removed the cause into this court, where'the judgment of the Circuit Court was affirmed by the unanimous opinion of this court. In disposing of the ease the court say that the latter clause does not qualify the general language, " on all goods, wares, and merchandise,", employed-in the body of the section, so as to exclude from it the articles exempted from duty.under prior acts of Congress. Instead of that, the court proceeds to say that it only provides that the duty laid by the body of the section "shah be in addition to existing duties on such articles when imported directly from their places of growth or production;" that such articles as already pay a duty when imported directly from those places shall pay a further duty, as therein prescribed, if imported from countries west of the Cape, the object being to increase the duty upon the articles when not imported directly from their places of growth or production.
Based as that opinion is upon the proposition that the latter clause of the section does not qualify the first clause imposing the new duty, it is decisive of the question before the court, as it is clear that the word "and" before the words " in addition " was not regarded as of any importance or as contributing in any degree to that conclusion. On the contrary, the court decided on that occasion, what undoubtedly is correct, that the words " any such articles," in the last clause of the section, " do not mean all the articles embraced in the first clause, but only such of them as were already subject to duty," to which we add, leaving all. the rest subject to the new duty imposed by the first clause or the body of the section.
Support to that conclusion was also drawn, in that opinion, from the second section of the act of the third of March, 1863, modifying the fourteenth section of the prior act, and providing that cotton and raw silk, as reeled from the cocoon, of the growth or produce of countries beyond the Cape of Good Hope, should be exempted from any additional duty when imported from places this side of the Cape for two years from and after the passage of the act.
Unaided'by one or two remarks of the circuit judge in disposing of that controversy in the Circuit Court, the defence here would be entirely without support, but it is a sufficient answer to those remarks to say that the decision of the case when removed here by writ of error was not placed upon that ground; that the ground assumed in this court was that the last clause of the section, when properly construed, did not qualify the body of the section in respect to the articles not previously dutiable; that it merely provided that the new duty was an additional one in respect to articles subject to duty under prior laws, leaving all other articles embraced in the first clause or the body of the section subject to the new duty therein prescribed; and the court as now constituted, is clearly of the same opinion.
Judgment aeeirmed.
13 Stat. at Large, 215.
13 Stat. at Large, 493.
12 Stat. at Large, 557; 13 Id. 493.
13 Stat. at Large, 216; Ib. 493.
Hadden v. The Collector, 5 Wallace, 112.
12 Stat. at Large, 557; Ib. 742.