The Court were unanimously of opinion, that they could only consider the single question upon which the judges below divided in opinion, but that the parties will not be precluded from bringing a writ of error upon the final judgment below; and the whole cause will then be before the court. A court may at any time reverse an interlocutory decree.

The case was afterwards settled by the parties.

Cited-2 Black. 434; 3 Wall. 255; 10 Otto 173.

PENNINGTON v. COXE.

Sugar refined but not sold and sent out of the manufactory, before the 1st of July, 1802, is not liable to any duty upon being sent out after that day.

HIS was a feigned issue, between Tench Coxe, Edward Pennington, a citizen of the state of 34*] New York, to try the question, *whether sugar actually refined, but not sold and sent out of the manufactory, before the 1st of July, 1802, is liable to any duty to the United States, upon being sent out after that day.

This question arose upon the act of Congress, entitled An act to repeal the internal taxes,' passed April 6, 1802, vol. 6, p. 58.

The declaration was upon a wager, that the United States were entitled to collect the duty, and stated the following facts: That Pennington was a refiner of sugar, within the meaning of the several acts of Congress imposing a duty on refined sugars; that he had refined a quantity of sugar between the 31st of March and the 1st of July, 1802, which, if the act for repealing the internal taxes had not been made, would have been liable to a duty, exceeding in the whole, the sum of 2,500 dollars; that he did from day to day enter in a book or paper kept for that purpose, all the sugar refined by him as aforesaid, but that he did not, on the 1st of October, 1802, render any account of the sugar which he had so refined to any officer of the revenue, nor did he produce to any such officer (though required) the original book or paper whereon the entries from day to day were made as aforesaid, nor did he on the said 1st of October, nor at any time before or since, pay or secure any duties upon the said quantity of sugar so refined by him as aforesaid, during the period aforesaid; that the same was not sent out of the manufactory before the 1st of July, 1802, but that the whole had been since sent out, viz., on the 30th of September, 1802. To this declaration there was a general demurrer and joinder; and it was agreed that no advantage should be taken of want of form in the proceedings.

The judgment of the circuit court of the district of Pennsylvania was for the plaintiff below, and the defendant brought the writ of

error.

The act imposing the duty was passed June 5th, 1794, vol. 8, p. 93, and is entitled, "An act laying certain duties upon snuff and refined

sugars.

The 2d section enacts, that from and after the 30th of September, 1794, "there be levied, 35*] collected, and paid, upon all sugar which shall be refined within the United States, a duty of two cents per pound."

The 3d section directs, that the duties aforesaid shall be levied, collected and accounted for," by certain officers therein described.

The 5th section directs, that every refiner of sugar shall make true and exact entry and report in writing, at the office of inspection, of every house or building where such business shall be carried on, and every pan or boiler, together with the capacity of each; and shall also give bond in the sum of 5,000 dollars, with condition that he will enter in a book or paper, to be kept for that purpose, all sugar which he shall refine, and the quantities from day to day sent out of the building, where the same shall have been refined; and shall on the first day of January, April, July and October, in each year, render a just and true account of all the refined sugar which he shall have sent out, from the time of the last account rendered, producing and showing therewith the original book to be made as aforesaid, have been made; "and he shall, at the time of rendering each account, pay or secure the duties which by this act ought to be paid upon the refined sugar in the said account mentioned."

By the 7th section, it is enacted, that every refiner of sugar shall, yearly, being thereunto required by an officer of inspection, make oath that the accounts which have been by him rendered of the quantities of refined sugar by him sent out of the building, have been just and true.

By the 10th section, it is enacted, "that all snuff and refined sugar, which shall have been manufactured, or made within the United States, in manner aforesaid, after the said 30th day of September next, whereof the duties aforesaid have not been duly paid or secured, according to the true intent and meaning of this act, shall, upon default being made in the paying or securing of the said duties, be forfeited, and shall and may be seized as forfeited, by any officer of the inspection or of the customs.'

By the 11th section, the refiner has the option to pay, upon rendering his account, "the duties which shall thereby appear to be [*36 due and payable," with a deduction of six per cent. for prompt payment, or to give bond payable in 9 months.

66

By the 11th section a drawback of the duties 'hereby laid upon sugar refined within the United States" is allowed upon exportation to a foreign port.

But by the 16th section, such allowance is not to be made, unless the exporter shall make oath that the duties have been paid or secured.

The 20th section declares it shall be lawful to export refined sugar directly from the manufactory, free from duty.

The 1st section of the repealing act of April 6, 1802, enacts, "that from and after the 30th day of June next, the internal duties on stills and domestic distilled spirits, on refined sugars, licenses to retailers, sales at auction, carriages for the conveyance of persons, and stamped vellum, parchment and paper, shall be discontinued, and all acts and parts of acts relative thereto shall, from and after the said 30th day of June next, be repealed.

Provided, that for the recovery and receipt of such duties as shall have accrued, and on the day aforesaid remain outstanding, and for the

payment of drawbacks, or allowances on the exportation of any of the said spirits, or sugars legally entitled thereto, and for the recovery and distribution of fines, penalties and forfeitures, and the remission thereof, which shall have been incurred before and on the said day, the provisions of the aforesaid acts shall remain in full force and virtue."

Ingersoll, for the plaintiff in error.

By the repealing act, no duties upon refined sugar are to be collected, but such as had accrued and remained outstanding, on the 30th of June, 1802. The sugars in question were refined before, but were not sent out until after that day; and the question is, whether the duties upon them had accrued on that day, and then remained outstanding. We contend that the 37*] duty is to be collected *only upon sugar sent out of the building in which it was refined; and to support this construction, we rely upon the general tenor of the act which imposed the duty. It is a rule of construction of statutes, that "every act, upon consideration of all the parts thereof together, is the best expositor of itself." 4 Inst. 325. And it is another sound rule, that words distributed into different sections, are to be considered as if all were in one section. By this rule the 5th section of the act of June 5th, 1794, is to be connected with the 2d. What is general in the 2d is thus restricted and qualified by the 5th. The 2d section enacts that the duty shall be levied, collected and paid, upon all sugar refined in the United States. If this section stood alone, it is admitted that it would be conclusive against the plaintiff in error. But it is limited by the 5th section not accidentally, but with a clear view to collection, and that it might not operate as a tax upon labor, but upon consumption. By this section two accounts are to be kept; one of the sugar refined, the other of the refined sugar sent out; but the duty is only upon that contained in the latter.

If the words of both sections were incorporated into one. (and they are to be construed as if they were,) it would read thus; upon all sugar refined within the United States, and sent out of the building, &c. there shall be levied, collected and paid, a duty of two cents per pound.

The account of sugar refined, but not sent out, was intended merely as a check. It was not to be delivered, but shown, to the officer, and its purpose was to enable him, by comparing the amount refined with that sent out, and what remained on hand, to estimate the correctness of the account of sugar sent out, upon which alone the duty was chargeable. It was clearly the intention of the legislature, that the duty should be paid upon sugar, only in such circumstances as would show that the tax would fall upon the consumer, and not on the manufacturer.

But it will be contended that there is a distinction between levying and collecting. That the duty is levied upon the whole, but is payable only on such as shall be sent out.

But for this distinction there is not even an intimation in the act of Congress. 38*] *It will be said on the part of the United States, that there is no section but the 2d which imposes the duty, and by that section it is imposed on all sugar refined.

But why impose a duty, which is not to be collected?"

It is agreed, that the sending out is a prerequisite to the payment. What use can there be in imposing a duty, upon an article in circumstances which prevent its collection?

If the duty arises from the act of refining only, the 5th section might be expunged, and the law would remain the same. That section is of no use unless it operates upon the second. The words "levied, collected and paid," in the 2d section, are commensurate, though not of the same meaning. The word "levied" applies to the act of the legislature in imposing the duty. Collected," refers to the act of the officer. "Paid," to the act of the party. "Levied," means the same as imposed.

Each verb has the same subject. The same thing is to be levied, collected and paid. Nothing is levied but what is to be collected; nothing collected but what is to be paid; and nothing is to be paid but on the sugar sent out. Hence no duty is levied but upon sugar sent out.

There is no analogy between this duty and that upon goods imported. There the duties are payable on the landing of the goods, and are payable even if the goods are destroyed as soon as landed. In such a case a remission of the duties is matter of favor. But in the case of refined sugar it is not so. The legislature did not intend that the manufacturer should be the sufferer. The impost laws have no section restricting the general imposition.

The bond to be given for the duties on sugar is to be payable in nine months after the time of sending out, not of refining.

The bond given for impost is payable in 6 months after importation.

Hence, if any analogy exists, the argument derived from *it is in favor of the con- [*39 struction that the duty is not imposed until the sugar is sent out.

A duty not to be paid, is no duty.

Suppose the refining house should be burnt, and a quantity of refined sugar destroyed, no duty could be collected upon it. The relation of debtor and creditor had not arisen between the manufacturer and the United States. The duty had not accrued.

That it be sent out, is descriptive of the subject matter of the tax. It fixes a certain stage of the business of a manufacturer, at which the duty shall attach. It ascertains the quality and degree of refining, which otherwise might be the subject of much litigation. Sugar may not be fit to send into the market, and yet it may be strictly said to be refined.

The penalties and the duty must correspond. The duty of the manufacturer cannot exceed the penalty. The doctrine of relation will not extend to create a penalty or a forfeiture. The provisions of the old law are continued by the repealing law, only as to penalties and forfeitures, "which shall have been incurred before or on the 30th of June, 1802." As no penalty or forfeiture for non-payment of the duty could be incurred until after the sugar was sent out, and as the sugar was not sent out until after the 30th of June, it is evident no penalty or forfeiture, as to that sugar, could "have been incurred before or on that day.' This shows that the provisions of the law to enforce the

payment of duties on such sugar were not continued, and is a strong indication of the will of the legislature that none should be paid.

All the provisions in the act of 1794, subsequent to the 5th section, mention the subject of the duty as being sugar refined and sent out. Thus the oath mentioned in the 7th section is to the truth of the account of sugar sent out.

The drawback, the account to be rendered, the tax to be collected, and the bond for securing the duties, refer only to such sugar as shall

have been sent out.

If there had been no express provision in the repealing act, and the duty had been repealed 40*] generally on the 30th of June, no duty could have been due on sugars then refined but not sent out. The repealing law creates no obligation on the refiner to render an account of sugars refined before and sent out after the 30th of June. If the duty was levied upon all sugars retined before that day, and payable at any future indefinite time when they should be sent out, it would be necessary to keep an officer in pay as long as a single loaf remained in the building. All parts of the acts were to cease after the 30th of June, unless saved by the proviso; and that relates only to the recovery | and receipt of all such duties as had then accrued and remained outstanding, and such penalties and forfeitures as had then been incurred. The question then recurs, had these duties accrued, and were they remaining outstanding on the 30th of June? The word "accrued' must mean arisen, due; at least due at present, payable in future. But if they were due, the officer had a right to call for payment or security. It cannot be said to have accrued until it is to be paid or secured. But the words "remaining oustanding" are still stronger. 'Shall have accrued and remain outstanding," that is, having before accrued, shall remain outstanding. These expressions imply that the duties had been fixed and their amount ascertained; that the relation of debtor and creditor had arisen, and that the duties remained unpaid either through negligence or indulgence.

The effect of the construction contended for on the part of the United States would be to throw the whole of these duties upon the refiner, for he could not make a difference in price between the sugars refined before, and those manufactured after the 30th of June. This effect would be in direct hostility to the general principle of the leigslature which is apparent through the whole act, and which was to tax consumption and not labor.

The proviso in the repealing law either enacts or declares. It is evident that it does not enact any new regulations, but merely declares the continuance of former provisions. The remedy given by the former act was only by action, or forfeiture. But no action would lay, nor would any forfeiture be incurred, until after the sugars were sent out. It is a rule, that upon a new statute which prescribes a particular remedy, 41] no remedy can be taken but that prescribed by the statute. 2 Burr. 1157, Stevens v. Ecans.

But it will be objected that the duties outstanding meant only those not bonded, because, when bonded, the debt is due by bond and not as a duty. But the law is not so; for a debt due by act of Congress is at least of equal

dignity with a debt due by bond, and cannot be extinguished by it.

Mr. Ingersoll cited 3 Burr. 1341, The Lead Company v. Richardson, to show that an act imposing a duty is not to be extended to other subjects than those expressly described.

Lincoln, (Attorney General of the United States,) and Dallas, for the defendant in error. The whole question turns on the operation of the repealing act. If the duty had accrued and remained outstanding on the 30th of June, it was unaffected by the repeal.

To show that the duty accrued on the act of refining the sugar, independent of the act of removing it, they relied, 1st. On the words and spirit of the act of 1794; and 2d. On the obvious meaning of other acts in pari materia. 1. The words and spirit of the act.

1.

Every revenue system consists of three parts; The subject of the tax. 2. The time of payment; and, 3. The mode of collection.

The act of 1794 discriminates between each of these, and the construction must not confound them.

1. The subject of the tax.

The title of the act is general, "duties on snuff and refined sugar, not on the quality sold or sent out, but on the sugar refined."

The 2d section is equally general, "upon all sugar which shall be refined within the United States."

*The 3d section directs by what officers [*42 the duties aforesaid" shall be collected.

The 2d is the only section which imposes the duty, the 3d provides for its collection, and nothing is left for the object of the 5th but to ascertain the time of the payment.

The 10th section contemplates the duty as attaching on the act of refining, and subjects the sugar to forfeiture after removal, if the duty shall not have been duly paid or secured.

The subject then is refined sugar; and the process of refining being complete, the duty, accrues.

Without further provision there could be no doubt that all sugar refined between the 30th of September, 1794, and the 1st of July, 1802, would be liable to duty.

Every subsequent provision respecting the time and manner of payment is consistent with this imposition of the duty. No express transfer is made of the duty from the act of refining to the act of removing; no substitution of the quantity removed for the quantity refined; no words restricting the general expression “all sugar refined within the United States." All the subsequent clauses respect the payment, not the imposition of the duty.

2. Time of payment.

The duty attaches to the act of refining, but the fund for payment is created by the act of sale. Hence the 5th section directs two accounts to be kept, one of the whole quantity refined, the other of such as shall have been removed; and that, at the time of rendering the latter, the refiner "shall pay or secure the duties, which by this act ought to be paid, upon the refined sugar in the said account mentioned." This provision evidently is intended only to ascertain the amount which shall then be payable. The duties payable by this act are on all the sugar refined; if on all, it ought in strictness to be upon every part; but the United States say,

we will accept a partial payment, in consideration that you have not yet sold the residue of the sugar. The quarterly account ascertains the amount of this partial payment; while the 43*] other regulations are intended to enable the officer to ascertain the gross quantity refined.

The terms of payment show how and when the duty shall be paid, but do not affect the subject of the tax.

The legislature had power to give, or to refuse a credit; but the modification of the time or terms of payment does not create, and can- ! not discharge, the obligation to pay. It is but the common case of debitum in presenti, solvendum in futuro.

By the 20th section, sugar may be exported directly from the manufactory "free from duty.' This shows that the duty had attached, but was not to be exacted.

"""

2. The mode of collection must conform to the primary and secondary objects of the law. These were, 1st. A revenue from all refined sugars; 2d. Accommodation in payment.

For the primary object, it takes measures to ascertain the gross quantity refined. For the secondary object, it takes measures to ascertain the quantity removed in each quarter. For the first, it obliges the manufacturer to enter and report his house, and implements, with all additions made thereto, under a penalty and forfeiture; and to give a bond of 5,000 dollars, to keep an account of all sugar refined, which is to be quarterly produced to the collecting officer.

For the 2d it obliges him to keep, and render quarterly to the officer, a daily account of refined sugar removed, which is to be substantiated by an oath if required.

Thus all the provisions of the act harmonize with each other; but by an opposite construction, the duty is made incident to the time of payment, and not the time of payment incident to the duty. If what a man sells, and not what he refines, is the subject of the tax, the provision to ascertain the gross quantity refined is useless and vexatious.

It is true, that the two circumstances of refining and removing are necessary before pay44*] ment can be demanded, *or a forfeiture for non-payment incurred; but the obligation to pay is co-eval with the act of refining; the duty had then accrued, and must remain outstanding until the removal of the sugar. The two circumstances are distinct in words and in purpose; the one creates the duty, the other fixes the time of payment. To connect them is to amplify, not only the words, but the sense of the legislature; but to keep them separate preserves the intention of the law in consistency with its language.

Hypothetical arguments, extreme cases, and arguments ab inconvenienti, cannot alter the law. Such are the cases of the sugar being destroyed in the house; the necessity of keeping officers to collect the tax, and the sales of refined sugar, made in contemplation of their being free of duty, &c. If the sugar is destroyed before removal, it is no longer refined sugar; and the duty being attached to the the thing itself, is destroyed with it. The argument drawn from the supposed intention of the legislature to tax consumption, and not labor, applies only to

the collection, not to the imposition, of the duty. The act of sending out does not necessarily import sale. A manufacturer may remove the sugar to his own stores, separate from the manufactory, and would be liable to the duty. The legislature did not intend that a sale should. precede the imposition of the tax.

There is a case in 1 Anst. 450, (558,) in which it was decided, that the duty had attached on the distillation of spirits, although the building and materials were destroyed before the process was complete.

The words and spirit of the act are thus reconciled, and they are in unison with the repealing act, which meant to put all the internal taxes upon the same footing up to the 20th of June. By the 3d section of the latter act, the owners of stills, of snuff mills, the banks, retailers of wine and spirits, and the owners of carriages, are to pay the taxes up to that day; and if sugar refiners are to be excepted, it seems to be an exception without any adequate reason. The objection which has been raised, that the duty upon sugars refined before and delivered after the 30th of June, 1802, would fall upon the refiners, cannot avail them, because they received the duty upon sugars refined after the 6th of June, 1794, and before *the 30th [*45 of September in that year, without being accountable for it.

2. The construction contended for, is supported by the obvious meaning of the words of other acts, in pari materia.

The analogy exists in the terms of imposing the duty; in the accommodation of credit, and in the security for collection.

In the following acts, imposing duties on imported articles, the words which create the imposition are, “levied, collected and paid,” viz., August 10, 1790, § 1, vol. 1, p. 248. June 7, 1794, § 1, vol. 3, p. 108, and Jan. 29, 1795, vol. 3, p. 154.

In other acts the words are “laid, levied and collected," viz., March 3, 1797, § 1. & 3, vol. 3. p. 397. July 8, 1797, § 1. col. 4, p. 35, and May 13, 1800, § 1, col. 5, p. 201.

In all these acts, the imposition of the tax necessarily precedes the collection; hence we may infer, that when the legislature used the same words in the act of 1794, they intended that the tax, should be laid before the time of collection, and that from the time of the imposition, until paid or secured, the duty should be considered as outstanding. An outstanding duty can mean nothing more than a duty laid, but not collected or secured. As to bonded duties, it was not necessary that the provisions of the act of 1794 should be continued in force, because a suit might have been maintained on the bond, notwithstanding the repeal; hence it is evident that by the expression "duties which shall have accrued and remain outstanding," the legislature could not mean bonded duties. What is the situation of the duties upon goods imported before bond given? They have attached upon the goods, and remain outstanding. A debt has accrued. The relation of debtor and creditor has arisen between the importer and the United States.

There is no difference between the case of the refiner of sugar and the distiller of spirits. In the latter, the act of distillation furnishes the subject of the tax; the removal *desig- [*46