Mr. Justice McLEAN.
The decision of this case turns upon the construction of the act of 1833, and as I differ from the opinion of a majority of the judges, I will state, in a few words, my views upon the subject.
The 1st section of the act provides, that ten per cent. on the existing duties shall be deducted annually, until the duties shall be reduced to twenty per cent.
The 3d section declares, 'that until the 30th day of June, 1842, the duties imposed by existing laws, as modified by this act, shall remain and continue to be collected. And from and after the day last aforesaid, all duties upon imports shall be collected in ready money; and all credits now allowed by law, in the payment of duties, shall be, and are hereby abolished; and such duties shall be laid, for the purpose of raising such revenue as may be necessary to an economical administration of the government; and from and after the day last aforesaid, the duties required to be paid by law on goods, wares, and merchandise, shall be assessed upon the value thereof, at the port where the same shall be entered, under such regulations as may be provided by law.'
The above sections can scarcely be misapprehended by any one. The 1st section reduces existing duties, in a time and manner stated, to twenty per cent. And the 3d section provides, 'that until the 30th of June, 1842, the duties imposed by existing laws, as modified by that act, shall remain and continue to be collected. Now the inference is irresistible, that after the above date, the duties shall not be collected under those laws. And this is shown conclusively by the 5th section, which provides, that all imports on which the 1st section of the act may operate, and all articles then admitted to entry free from duty, or paying a less rate of duty than twenty per centum ad valorem, before the said 30th day of June, 1842, from and after that day, may be admitted to entry subject to such duty, not exceeding twenty per centum, ad valorem, as shall be provided by law.'
Now, these are not terms of compromise, but of enactment. After the day specified, the law declares, that the duties shall not exceed twenty per cent. This, like all other laws, was liable to be repealed, expressly or by implication. But it is law, until so repealed. The duties are not to exceed twenty per cent., but that does not establish them at twenty per cent.
The 6th section of the act repeals all laws inconsistent with it. The twenty per cent. duties, by this act, were to be continued only to the 30th of July, 1842. After that, by the same act, the duties were not to exceed twenty per cent. Here is no repugnancy in the law, because the one provision is to cease at the same time that the other begins to operate. It is impossible that both enactments can be in force at the same time. They are inconsistent with each other. The one provision fixes a definite amount of duties, the other an indefinite amount. Not to exceed twenty per cent., is not twenty per cent. To give effect to this provision, further legislation was necessary. But, is it the less binding on that account? Can it be disregarded on the ground that it was a mere matter of compromise? It has the form and solemnity of law, and it shows, that the act imposing duties expired on the 30th of July, 1842.
That this was the view of Congress, is manifest from the fact, that in due time they passed an act regulating the duties, to take effect from the above date, which did not receive the signature of the executive. But this is no reason why we, by construction, should continue in force a law which Congress had repealed. After the above date, such duties were to be imposed 'as shall be provided by law.' Now, this language cannot be mistaken; and it is inconsistent with the idea, that the law imposing duties prior to that date, should, after it, continue in force. Such a construction is unwarranted by the 3d section and the whole tenor of the act.
It is not for this court to determine, whether Congress, in this respect, acted wisely or unwisely; whether their motive was to compromise great and conflicting interests or not; but what have they declared to be law? It would be a restriction on the legislative power, hitherto unknown, to say, that Congress cannot repeal a law, unless they substitute another law in its place.
If the duty law in force prior to the 30th of July, 1842, be inconsistent with the provisions of the act under consideration, then the prior law is repealed. And it is no answer to this to say, that the prior law, in its modified form, is in force by virtue of the act of 1833. The plain and unequivocal enactments of that act repudiate such an inference. In its modified form, the prior law, by that act, expired in 1842. And after that, a new cnactment, in my judgment, was essential, not only to continue duties upon foreign merchandise, but also to give effect to all the important provisions of the act of 1833.
The 3d section, after July, 1842, abolishes all credits for duties, and requires them 'to be paid in ready money;' and it further provides, 'that duties shall be laid for the raising of such revenue as may be necessary to an economical administration of the government;' and that the duties 'required to be paid by law,' 'shall be assessed upon the value of the goods at the port where the same shall be entered, under such regulations as may be prescribed by law.'
Now, every one of these provisions was adopted with reference to its taking effect from, and after the 30th of July, 1842. They all belong to the same class. The credit for duties was to be then abolished, and prompt payment required. From and after that day, duties were to be laid to meet the expenditure of an economical administration of the government. And after that day, 'that duties required to be paid by law,' were to be assessed on the value of the goods at the port of entry; and this assessment is required to be made, 'under such regulations as may be prescribed by law.' These provisions cannot, by any known rule of construction, be made to refer to laws or regulations existing at the time of their enactment. They all refer to the future: to future laws, and regulations prescribed by those laws.
The existing laws made no provision to carry into effect the changes in the system, introduced by the act of 1833. Appraisers were appointed under former acts, but there was no law or regulation as to the home valuation. This was a most important matter, under the new system. And it is perceived, from the explicit provision of the act of 1833, that Congress did not intend to leave an arrangement of so much importance to the discretion of the Secretary of the Treasury or of the President. They declare, that the duties shall be assessed, 'under such regulations as may be prescribed by law.' This is not to be met by argument. It is matter of law.
No one can doubt, that laws in relation to duties, not inconsistent with the act of 1833, may be considered in giving a construction to that act. But I am yet to learn, that such laws, by any construction, can suspend or modify the positive enactments of the act of 1833. Such a power belongs not to the executive nor the judiciary, but to Congress.