Elliott v. Swartwout
35 U.S. 137 (1836)

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U.S. Supreme Court

Elliott v. Swartwout, 35 U.S. 10 Pet. 137 137 (1836)

Elliott v. Swartwout

35 U.S. (10 Pet.) 137

Syllabus

Under the act of Congress passed on 14 July, 1832, entitled "An act to alter and amend the several acts imposing duties on imports," worsted shawls with cotton borders, and worsted suspenders with cotton straps or ends, are not subjected to a duty of fifty percentum ad valorem.

Laws imposing duties on importation of goods are intended for practical use and application by men engaged in commerce, and hence it has become a settled rule in the interpretation of statutes of this description to construe the language adopted by the legislature, and particularly in the denomination of articles, according to the commercial understanding of the terms used.

A collector of the revenue is not personally liable in an action to recover back an excess of duties paid as collector and by him in the regular or ordinary course of his duty paid into the Treasury of the United States, he, the collector, acting in good faith and under instructions from the Treasury Department and no protest being made at the time of payment or notice not to pay the money over or intention to sue to recover back the amount given him.

In case of a voluntary payment by mere mistake of law, no action will lie to recover back the money. The construction of the law is open to both parties, and each presumed to know it.

Any instructions of the Treasury Department to the collector could not change the law or affect the rights of a party injured by them. He was not bound to take and adopt that construction. He was at liberty to judge for himself and act accordingly. These instructions from the Treasury seem to be thrown into the question in this case for the purpose of showing beyond all doubt that the collector acted in good faith. To make the collector answerable after he had paid over the money without any intimation having been given that the duty was not legally charged cannot be sustained upon any sound principle of policy or of law. There can be no hardship in requiring the party to give notice to the collector that he considers the duty claimed illegal, to put him on his guard, by requiring him not to pay over the money. The collector would then be placed in a situation to claim an indemnity from the government. But if the party is entirely silent, and no intimation of an intention to seek a repayment of the money, there can be no ground upon which the collector can retain the money or call upon the government to indemnify him against a suit. It is no sufficient answer to this that the party cannot sue the United States. It is the case of a voluntary payment under a mistake of law, and the money paid over into the Treasury, and if any redress is to be had, it must be by application to the favor of the government, and not on the ground of a legal right.

The collector is personally liable in an action to recover back an excess of duties paid to him as collector and by him paid over in the regular and ordinary course of his duty into the Treasury of the United States, he, the collector, acting in good faith and under instructions from the Treasury Department, a notice having been given him at the time of payment that the duties were charged too high and that the party paying, so paid to get possession of his goods, and intended to sue to recover back the amount erroneously paid, and a notice not to pay over the amount into the Treasury. It is the settled doctrine of the law that where money is illegally demanded

Page 35 U. S. 138

and received by an agent, he cannot exonerate himself from personal

responsibility by paying it over to his principal when he has had notice not to pay it over.

The suit was originally instituted in the Superior Court of the City of New York by the plaintiff against the defendant, the Collector of the Port of New York, and was removed by certiorari into the Circuit Court of the United States.

The action was assumpsit to recover from the defendant the sum of thirty-one hundred dollars and seventy-eight cents received by him for duties as collector of the port of New York on an importation of worsted shawls with cotton borders and worsted suspenders with cotton straps or ends. The duty was levied at the rate of fifty percentum ad valorem under the second clause of the second section of the Act of 14 July, 1832, entitled "An act to alter and amend the several acts imposing duties on imports," as manufactures of wool or of which wool is a component part. The plea of nonassumpsit was pleaded by the defendant in bar of the action.

The following points were presented during the progress of the trial for the opinion of the judges and on which the judges were opposed in opinion:

First. Upon the trial of the cause, it having been proved that the shawls imported, and upon which the duty of fifty percentum ad valorem had been received, were worsted shawls with cotton borders sewed on, and that the suspenders were worsted with cotton ends or straps, and that worsted was made out of wool by combing, and thereby became a distinct article, well known in commerce under the denomination of worsted.

The judges were divided in opinion whether the said shawls and suspenders were or were not a manufacture of wool or of which wool is a component part within the meaning of the words "all other manufactures of wool, or which wool is a component part" in the second article of the second section of the Act of Congress of 14 July, 1832.

Second. Whether the collector is personally liable in an action to recover back an excess of duties paid to him as collector

Page 35 U. S. 139

and by him in the regular or ordinary course of his duty paid into the Treasury of the United States, he, the collector, acting in good faith and under instructions from the Treasury Department, and no protest being made at the time of payment or notice not to pay the money over or intention to sue to recover back the amount given him.

Third. Whether the collector is personally liable in an action to recover back an excess of duties paid to him as collector, and by him paid in the regular and ordinary course of his duty into the Treasury of the United States, he, the collector, acting in good faith and under instructions from the Treasury Department, a notice having been given at the time of payment that the duties were charged too high and that the party paying so paid to get possession of his goods, and intended to sue to recover back the amount erroneously paid, and a notice not to pay over the amount into the Treasury.

These several points of disagreement were certified to this Court by the direction of the judges of the circuit court.

Page 35 U. S. 150

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