Since the passage of the Act of Congress of March 3, 1839, chap.
82, sec. 2, which requires collectors of the customs to place to
the credit of the Treasurer of the United States all money which
they receive for unascertained duties or for duties paid under
protest, an action of assumpsit for money had and received will not
lie against the collector for the return of such duties so received
by him.
In what other modes the claimant can have access to the courts
of justice this Court is not called upon in this case to
decide.
This action was brought in the circuit court to recover money
paid to Curtis as collector of the port of New York for duties. The
declaration contained the common money counts, and the defendant
pleaded the general issue. The cause was tried at November term,
1842.
The jury found for the plaintiffs, subject to the opinion of the
court, among other things,
1. That the plaintiffs paid the sum of $181.75 to the
defendants, on the 3d July, 1841, for duties on the goods imported
as being raw silk.
2. That the goods on which the duties were demanded and paid,
were not raw silk, but a manufactured article.
3. That the money so paid was under a written protest, made at
the time of payment.
4. That the money had been paid into the Treasury by the
defendant, in the month of July, 1841, and before the commencement
of this suit.
Upon the argument of this cause, after verdict, several
questions arose -- among others, the following,
viz.:
Whether or not the 2d section of the Act of Congress, approved
on 3 March, 1839, entitled "An act making appropriations for the
civil and diplomatic expenses of government for the year 1839," was
a bar to the action?
On this question the opinions of the judges were opposed.
Whereupon, on motion of the plaintiffs by their counsel, it was
ordered, that the foregoing state of the pleadings and facts, which
is made under the direction of the judges, be certified under the
seal of this Court, according to the statute in such case made and
provided, to the Supreme Court of the United States, to the end,
that the question on which the said disagreement has happened may
be finally decided.
Page 44 U. S. 239
MR. JUSTICE DANIEL delivered the opinion of the Court.
In order to arrive at the answer which should be given to the
question certified upon this record, the objects first to be sought
for are the intention and meaning of Congress in the enactment of
the 2d section of the Act of March 3, 1839, under which the
question sent here has been raised. The positive language of the
statute, it is true, must control every other rule of
interpretation, yet even this may be better understood by
recurrence to the known public practice as to matters
in pari
materia, and by the rules of law as previously expounded by
the courts, and as applied to and as having influenced that
practice. The law as laid down by this Court with
Page 44 U. S. 240
respect to collectors of the revenue, in the case of
Elliott v.
Swartwout, 10 Pet. 137, and again incidentally in
the case of
Bend v. Hoyt,
13 Pet. 263, is precisely that which is applicable to agents in
private transactions between man and man,
viz., that a
voluntary payment to an agent without notice of objection will not
subject the agent who shall have paid over to his principal, but
that payment with notice, or with a protest against the legality of
the demand, may create a liability on the part of the agent who
shall pay over to his principal in despite of such notice or
protest. Such was the law as announced from this Court, and
Congress must be presumed to have been cognizant of its existence;
and as the peculiar power ordained by the Constitution to prescribe
rules of right and of action for all officers as well as others
falling within the legitimate scope of federal legislation, they
must be supposed to have been equally cognizant of the effects and
tendencies of this Court's decisions upon the collection of the
public revenue. With this knowledge necessarily presumed for them,
Congress enact the 2d section of the act of 1839. It should not be
overlooked, for it is very material in seeking for the views of
Congress in this enactment, that the Court, in the case of
Elliott v. Swartwout, in its reasoning upon the second
point submitted to them, say, that the claimant by giving notice to
the collector would "put him on his guard," by requiring him not to
pay over the money. They farther say that the collector would, by
the same means, be placed in a situation to claim an indemnity. The
precise mode in which this protection of the collector was to be
accomplished, or his indemnity secured, it is true, the court has
not explicitly declared; but it is thought to be no forced
construction of their language to explain it as sanctioning a right
of retainer in the collector of the funds received by him for the
government; for what shield so effectual could he interpose between
himself and the cost and hazards of frequent litigation? Indeed,
this would appear, according to the opinion of the court, that very
protection which justice and necessity would equally warrant. In
practice, this retainer has, with or without warrant, been resorted
to.
And now let us look to the language of the act of 1839, chap.
82, § 2.
"That from and after the passage of this act, all money paid to
any collector of the customs, or to any person acting as such, for
unascertained duties, or for duties paid under protest against the
rate or amount of duties charged, shall be placed to the credit of
the Treasurer of the United States, kept and disposed of as all
other money paid for duties is required by law, or by regulation of
the Treasury Department, to be placed to the credit of the
Treasurer, kept and disposed of, and it shall not be held by said
collector or person acting as such, to await any ascertainment of
duties, or the result of any litigation in relation to the rate or
amount of duty legally chargeable and collectible in any case where
money is so paid; but whenever it shall be shown to the
satisfaction of the Secretary of the
Page 44 U. S. 241
Treasury, that in any case of unascertained duties, or duties
paid under protest, more money has been paid to the collector, or
to the person acting as such, than the law requires should have
been paid, it shall be his duty to draw his warrant upon the
Treasurer in favor of the person or persons entitled to the
overpayment, directing the said Treasurer to refund the same out of
any money in the Treasury not otherwise appropriated."
What is the plain and obvious import of this provision, taking
it independently and as a whole? It is that all moneys thereafter
paid to any collector for unascertained duties, or duties paid
under protest, (
i.e., with notice of objection by the
payer) shall, notwithstanding such notice, be placed to the credit
of the Treasurer, kept and disposed of as all other money paid for
duties is required by law to be kept and disposed of -- that is,
they shall be paid over by the collector, received by the
Treasurer, and disbursed by him in conformity with appropriations
by law precisely as if no notice or protest had been given or made,
and shall not be retained by the collector (and consequently not
withdrawn from the uses of the government) to await any
ascertainment of duties, or the result of any litigation relative
to the rate or amount of duties, in any case in which money is so
paid.
This section of the act of Congress, considered independently
and as apart from the facts and circumstances which are known to
have preceded it and may fairly be supposed to have induced its
enactment, must be understood as leaving with the collector no lien
upon or discretion over the sums received by him on account of the
duties described therein; but as converting him into the mere
bearer of those sums to the Treasury of the United States, through
the presiding officer of which department they were to be disposed
of in conformity with the law. Looking then to the immediate
operation of this section upon the conclusions either directly
announced or as implied in the decision of
Elliott v.
Swartwout, how are those conclusions affected by it? They must
be influenced by consequences like the following: that whereas by
the decision above mentioned it is assumed that by notice to the
collector, or by protest against payment, a personal liability for
the duties actually paid, attaches upon, and that for his
protection a correspondent right of retainer is created on his
part; it is thereby made known (
i.e. by the statute) that
under no circumstances in future should the revenue be retained in
the hands of the collector; that he should in no instance be
regarded by those making payments to him as having a lien upon it,
because he is announced to be the mere instrument or vehicle to
convey the duties paid into his hands into the Treasury; that it is
the Secretary of the Treasury alone in whom the rights of the
government and of the claimant are to be tested, and that whosoever
shall pay to a collector any money for duties must do so subject to
the consequences herein declared. Such, from 3 March, 1839, was the
public law of the United States; it
Page 44 U. S. 242
operated as notice to everyone; it applied, of course, to every
citizen as well as to officers concerned in the regulations of the
revenue; and as it removed the implications on which the decision
of
Elliott v. Swartwout materially rested, that case
cannot correctly control a question arising under a different state
of the law, and under a condition of the parties also essentially
different.
It will not be irrelevant here to advert to other obvious and
cogent reasons by which Congress may have been impelled to the
enactment in question; reasons which, it is thought, will aid in
furnishing a solution of their object. Uniformity of imports and
excises is required by the Constitution. Regularity and certainty
in the payment of the revenue must be admitted by everyone as of
primary importance: they may be said almost to constitute the basis
of good faith in the transactions of the government; to be
essential to its practical existence. Within the extended limits of
this country are numerous collection districts; many officers must
be entrusted with the collection of the revenue, and persons much
more numerous, with every variety of interest and purpose, are
daily required to make payments at the ports of entry. To permit
the receipts at the customs to depend on constructions as numerous
as are the agents employed, as various as might be the designs of
those who are interested, or to require that those receipts shall
await a settlement of every dispute or objection that might spring
from so many conflicting views, would be greatly to disturb, if not
to prevent, the uniformity prescribed by the Constitution, and by
the same means to withhold from the government the means of
fulfilling its important engagements. In the view of mischiefs so
serious, and with the intention of preventing or remedying them,
nothing would seem more probable or more reasonable, we might add
more necessary, than that the government should endeavor to devise
a plan by which, as far as practicable, to retain its fiscal
operations within its own control, thereby insuring that uniformity
in practice, enjoined by the theory of the Constitution, and that
punctuality which is indispensable to the benefit of all. Such a
plan has Congress devised in the act in question. We have no doubts
of the objects or the import of that act; we cannot doubt that it
constitutes the Secretary of the Treasury the source whence
instructions are to flow; that it controls both the position and
the conduct of collectors of the revenue; that it has denied to
them every right or authority to retain any portion of the revenue
for purposes of contestation or indemnity; has ordered and declared
those collectors to be the mere organs of receipt and transfer, and
has made the head of the Treasury Department the tribunal for the
examination of claims for duties said to have been improperly
paid.
It has been urged that the clause of the act of 1839 declaring
that the money received shall not be held by any collector to await
any ascertainment of duties, or the result of any litigation in
relation
Page 44 U. S. 243
to the rate or amount of duties legally chargeable and
collectible in any case where money is so paid; shows that Congress
did not mean to deprive the party of his action of assumpsit
against the collector; that litigation of that description was
still contemplated, and that the only object of the law was to
place the money in dispute in the possession of the Treasurer, to
await a decision, instead of leaving it in the hands of the
collector. The Court cannot assent to this construction. It will be
remembered that the two principal cases in which collectors have
claimed the right to retain, have been those of unascertained
duties, and of suits brought, or threatened to be brought, for the
recovery of duties paid under protest. It is matter of history that
the alleged right to retain on these two accounts, had led to great
abuses, and to much loss to the public; and it is to these two
subjects, therefore, that the act of Congress particularly
addresses itself. It begins by declaring that all money received on
these accounts shall be paid into the Treasury; and then, in order
to show that the collector is not the person with whom any claims
for this money are to be adjusted, or who is to be held responsible
for it, the act proceeds to declare that the money shall not remain
in his hands even if the protest is followed by a suit; that
notwithstanding suit may be brought against him, he shall still pay
the money into the Treasury, and that the controversy shall be
adjusted with the Secretary. Congress supposed, probably, that a
party might choose to sue the collector, as has been done in this
instance, but it does not by any means follow, that it was intended
to make him liable in the suit, or to give the party the right of
recovery against him. The words used go to show, that neither a
protest which is mentioned in the first part of the section, nor a
suit which is mentioned in the clause of which we are speaking,
shall be a pretext or excuse for retaining the money.
Suppose the words in relation to a litigation had been omitted,
and the law had said, that the collector should not retain the
money for any ascertainment of duties, but that the Secretary of
the Treasury in that case, as well as in the case of duties paid
under protest, should adjust the claim and pay what was really due.
The omission supposed would have strongly implied that, if there
was litigation, he might retain, and it might be said with much
show of reason, that by forbidding him to retain for unascertained
duties, but not forbidding him to retain in case of litigation for
duties paid under protest, implied that he could not retain for the
former but might for the latter. We hold it not a logical mode of
reasoning where the omission of words would evidently lead to a
particular conclusion, to argue that their insertion can do the
same thing. Besides, the litigation spoken of, and which is said to
lead to this result, is a litigation for duties paid under protest,
and not for overpayments of unascertained duties. If these words
were intended to sanction suits against collectors for the former,
why are litigations
Page 44 U. S. 244
for the latter not also countenanced? Independently of this
statute, the collector might have been sued for overpayments on
unascertained duties as well as for duties paid under protest. And
it can hardly be reconciled with reason or consistency that
Congress designed to preserve the right of suit in the one case,
and to deny it in the other. Yet if these words have the force
contended for by the defendant in error, they give the right of
action against the collector for duties paid under protest only,
leaving the party who has overpaid unascertained and estimated
duties, no remedy but that of resorting to the Secretary of the
Treasury.
It would be difficult to assign any good reason for such a
diversity; we think none such was intended, that none such in
reality exists, that the law intends merely to declare that if the
protest is followed by a suit, the duties in that case as well as
in the other, shall be paid into the Treasury and shall not remain
in the hands of the collector to abide the result of the suit. The
conclusion to which we have come upon this statute is greatly
strengthened by the Act of Congress of May 31, 1844, ch. 31, which,
in suits brought by the United States for the enforcement of the
revenue laws or for the collection of duties due or alleged to be
due on merchandise imported, authorizes a writ of error from this
Court to the circuit courts without regard to the sum in
controversy. The object of this law undoubtedly was to obtain
uniformity of decision in regard to the duties imposed. Prior to
the act of 1839, there were often differences of opinion in the
circuits in the construction of the laws, and in instances too in
which the amount in controversy was too small to enable either
party to bring them here for revisal by writ of error. It can
hardly then be imagined that when Congress was taking measures
expressly to secure uniformity of decision and practice in relation
to the amount of duties imposed by law, they would have confined
the writ of error to cases brought by the United States, when they
were of small amount, and refused it in suits against collectors in
similar controversies if they supposed that such suits could still
be maintained. Indeed it has heretofore been in this latter form
that the amount of duties claimed has been far more frequently
contested, than by suits brought by the United States. And if this
form of trying the question had not been intended to be taken away
by the act of 1839, there could have been no reason for excluding
it from the act of 1844. For the purposes obviously designed by
this law, it would have been much more important to the public to
have allowed the writ of error in suits against collectors than in
suits instituted by the United States, supposing suits of the
former description to be still maintainable, and the omission of
such a remedy strongly implies that the legislature supposed such
suits could be no longer maintained.
It is contended, however, that the language and the purposes of
Congress, if really what we hold them to be declared in the
statute
Page 44 U. S. 245
of 1839, cannot be sustained, because they would be repugnant to
the Constitution, inasmuch as they would debar the citizen of his
right to resort to the courts of justice. The supremacy of the
Constitution over all officers and authorities, both of the federal
and state governments, and the sanctity of the rights guaranteed by
it, none will question. These are
concessa on all sides.
The objection above referred to admits of the most satisfactory
refutation. This may be found in the following positions, familiar
in this and in most other governments,
viz., that the
government, as a general rule, claims an exemption from being sued
in its own courts. That although, as being charged with the
administration of the laws, it will resort to those courts as means
of securing this great end, it will not permit itself to be
impleaded therein, save in instances forming conceded and express
exceptions. Secondly, in the doctrines so often ruled in this Court
that the judicial power of the United States, although it has its
origin in the Constitution, is (except in enumerated instances,
applicable exclusively to this Court) dependent for its
distribution and organization, and for the modes of its exercise,
entirely upon the action of Congress, who possess the sole power of
creating the tribunals (inferior to the supreme court) for the
exercise of the judicial power, and of investing them with
jurisdiction either limited, concurrent, or exclusive, and of
withholding jurisdiction from them in the exact degrees and
character which to Congress may seem proper for the public good. To
deny this position would be to elevate the judicial over the
legislative branch of the government, and to give to the former
powers limited by its own discretion merely. It follows, then, that
the courts created by statute must look to the statute as the
warrant for their authority, certainly they cannot go beyond the
statute, and assert an authority with which they may not be
invested by it, or which may be clearly denied to them. This
argument is in no wise impaired by admitting that the judicial
power shall extend to all cases arising under the Constitution and
laws of the United States. Perfectly consistent with such an
admission is the truth, that the organization of the judicial
power, the definition and distribution of the subjects of
jurisdiction in the federal tribunals, and the modes of their
action and authority, have been, and of right must be, the work of
the legislature. The existence of the Judicial Act itself, with its
several supplements, furnishes proof unanswerable on this point.
The courts of the United States are all limited in their nature and
Constitution, and have not the powers inherent in courts existing
by prescription or by the common law.
In devising a system for imposing and collecting the public
revenue, it was competent for Congress to designate the officer of
the government in whom the rights of that government should be
represented in any conflict which might arise, and to prescribe the
manner of trial. It is not imagined, that by so doing Congress is
justly chargeable with usurpation, or that the citizen is thereby
deprived
Page 44 U. S. 246
of his rights. There is nothing arbitrary in such arrangements;
they are general in their character; are the result of principles
inherent in the government; are defined and promulgated as the
public law. A more striking example of the powers exerted by the
government, in relation to its fiscal concerns, than is seen in the
act of 1839, is the power of distress and sale, authorized by the
Act of Congress of May 15, 1820, 3 Story 1791, upon adjustments of
accounts by the first comptroller of the Treasury. This very strong
and summary proceeding has now been in practice for nearly a
quarter of a century, without its regularity having been
questioned, so far as is known to the court. The courts of the
United States can take cognizance only of subjects assigned to them
expressly or by necessary implication;
a fortiori, they
can take no cognizance of matters that by law are either denied to
them or expressly referred
ad aliud examen.
But whilst it has been deemed proper, in examining the question
referred to by the circuit court, to clear it of embarrassments
with which, from its supposed connection with the Constitution, it
is thought to be environed, this Court feel satisfied that such
embarrassments exist in imagination only and not in reality; that
the case and the question now before them present no interference
with the Constitution in anyone of its provisions, and may be, and
should be disposed of upon the plainest principles of common right.
In testing these propositions it is proper to recur to the case of
Elliott and Swartwout, and again to bring to view the
grounds on which that case was ruled. It was unquestionably decided
upon principles which may be admitted in ordinary cases of agency,
which expressly recognize the right -- nay, the duty -- of the
agent to retain, and make his omission so to retain an ingredient
in the gravamen or breach of duty, whence his liability and his
promise are implied by the law. The language of the Court,
35 U. S. 10
Pet. 154, is this:
"There can be no hardship in requiring the party to give notice
to the collector that he considers the duty claimed illegal, and
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 is given of an intention to seek 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."
Here then the right and the duty of retainer are sanctioned in
the officer; without them, the notice spoken of would be nugatory
-- a vain act, which the law never requires. And this right and
this duty in the officer, and this injunction of notice to him,
must all be understood and are propounded in this decision as
principles or precepts of the law, with the knowledge of which each
of the parties must stand affected.
The action of assumpsit for money had and received, it is said
by Ld. Mansfield, Burr. 1012,
Moses v. Macfarlen, will lie
in general whenever the defendant has received money which is the
property
Page 44 U. S. 247
of the plaintiff, and which the defendant is obliged by the ties
of natural justice and equity to refund. And by Buller, Justice, in
Stratton v. Rastall, 2 T.R. 370,
"that this action has been of late years extended on the
principle of its being considered like a bill in equity. And
therefore, in order to recover money in this form of action the
party must show that he has equity and conscience on his side, and
could recover in a court of equity."
These are the general grounds of the action as given from high
authority. There must be room for implication as between the
parties to the action, and the recovery must be
ex aequo et
bono, or it can never be. If the action is to depend on the
principles laid down by these judges, and especially by Buller, a
case of hardship merely could scarcely be founded upon them; much
less could one of injustice or oppression, nor even one which arose
from irregularity or indiscretion in the plaintiff's own conduct.
So far as the liability of agents in this form of action appears to
have been considered, the general rule certainly is that the action
should be brought against the principal and not against a known
agent, who is discharged from liability to a
bona fide
payment over to his principal, unless anterior to making payment
over he shall have had notice from the plaintiff of his right and
of his intention to claim the money. The absence of notice will be
an exculpation of the agent in every instance. And with regard to
the effect of the notice in fixing liability upon the agent, that
effect is dependent on the known powers of the agent and the
character of his agency. If, for instance, the agent was known to
be a mere carrier or vehicle to transfer to his employer the amount
received, payment to the agent with such knowledge, although
accompanied with a denial of the justice of the demand, would seem
to exclude every idea of an agreement express or implied on the
part of the agent to refund; and could furnish no ground for this
action against the agent who should pay over the fund received to
his principal. This doctrine is believed to be sanctioned by the
cases of
Greenaway v. Hurd, 4 T.R. 553, of
Coles v.
Wright, 4 Taunt. 198, and of
Tope v. Hockin, 7 Barn.
& Co. 101. 'Tis true that the case in Taunt. and that from
Barn. & C. were not instances of payment under protest; but the
case from 4 T.R. has this common feature with that before us, that
it was an action against an excise officer for duties said to have
been illegally collected, in which the plaintiff denied the
legality of the demand, though he subsequently paid it. But all
three of these cases concur in condemning the harshness of a rule
which would subject an agent, who is mere channel of conveyance or
delivery of the amount which might pass through his hands. Neither
of these cases was affected by a positive statutory mandate
requiring the agent to make payment over to his principal.
Another principle held to be fundamental to this action is this:
that there must exist a privity between the plaintiff and
defendant; something on which an obligation, an engagement, a
promise from
Page 44 U. S. 248
the latter to the former can be implied; for if such implication
be excluded from the relation between the parties by positive law,
or by inevitable legal intendment, every foundation for the promise
and of the action upon it is destroyed, for none can be presumed or
permitted to promise what either law or reason does not warrant or
may actually forbid. Thus, where bankers received bills from their
foreign correspondents, with directions to pay the amount to the
plaintiff, but on being applied to by him refused to do so,
although they afterwards received the amount of these bills; it was
held that an action for money had and received would not lie to
recover it from them, there being no privity between them and the
plaintiff. Lord Ellenborough observed, the defendants might hold
for the benefit of the remitter, until by some engagement entered
into by themselves with the persons who were the objects of the
remittance, they had precluded themselves from so doing; but here,
so far from there being such an engagement, they repudiated it
altogether.
Williams v. Everett, 14 East 582. Again, where
J., an attorney, who was accustomed to receive dues for the
plaintiff, went from home, leaving B., his clerk, at the office;
B., in the absence of his master, received money on account of the
above dues for the client, which he was authorized to do, and gave
a receipt "B., for Mr. J." J. was in bad circumstances when he left
home, and never returned. B. afterwards refused to pay the money to
the client, and on an action for money had and received against
him, it was held not to lie, for the defendant received the money
as the agent of his master, and was accountable to him for it; the
master, on the other hand, being answerable to the client for the
money received by the clerk, there was no privity of contract
between the present plaintiff and the defendant.
Stevens v.
Badcock, 3 Barn. & A. 354. So in the case of
Sims v.
Brittain, 4
id. 375. A., B., and others, were part
owners of a ship in the service of the East India Company; B. was
managing owner, and employed C. as his agent, and C. kept a
separate account on his books with B. as such managing owner. In
order to obtain payment of a sum of money from the East India
Company on account of the ship, it was necessary that the receipt
should be signed by one or more of the owners besides the managing
owner, and upon a receipt being signed by B. and by another of the
owners, C. received �2,000 on account of the ship, and placed it to
the credit of B. in his books as managing owner; the part owners
having brought money had and received to recover the balance of
that account, held, that C. had received the money as the agent of
B., and was accountable to him for it, and that there was no
privity between the other part-owners and C., and consequently that
the action was not maintainable. To the same effect are the cases
of
Rogers v. Kelly, 2 Campb. 123, and
Edden v.
Read, 3
id. 339, and
Wedlake v. Husley, 1
Crompt. & J., 83. If indeed the defendant has consented (where
he can properly
Page 44 U. S. 249
consent) to hold the money for the use of the plaintiff, he may
be liable. And it is conceded, that his consent need not be
express, but it must, if not so, rest upon fair and natural
implication or legal intendment. Where such implication or
intendment is excluded, forbidden by the position of the parties,
by positive law, or by the character of the transaction, consent or
any obligation upon which to imply it is entirely removed.
We have thus stated, and will here recapitulate, the principles
on which the action for money had and received may be maintained.
They are these: 1st, whenever the defendant has received money
which is the property of the plaintiff, and which the defendant is
obliged, by the ties of natural justice and equity, to refund; 2d,
in the case of an agent, where such agent is not notoriously the
mere carrier or instrument for transferring the fund, but has the
power of retaining, and before he had paid over has received notice
of the plaintiff's claim, and a warning not to part with the fund;
3d, where there exists a privity between the plaintiff and the
defendant. Let the case before us be brought to the test of these
rules. The 2d section of the act of Congress declares, first, that
from its passage, all money paid to any collector of the customs
for unascertained duties, or duties paid under protest against the
rate or amount of duties charged, shall be placed to the credit of
the Treasurer, to be kept and applied as all other money paid for
duties required by law. Secondly, that they shall not be held by
the collector to await any ascertainment of duties, or the result
of any litigation concerning the rate or amount of duty legally
chargeable or collectible. And thirdly, that in all cases of
dispute as to the rate of duties, application shall be made to the
Secretary of the Treasury, who shall direct the repayment of any
money improperly charged. This section, as a part of the public
law, must be taken as notice to all revenue officers, and to all
importers and others dealing with those officers in the line of
their duty. There is nothing obscure or equivocal in this law; it
declares to everyone subject to the payment of duties, the
disposition which shall be made of all payments in future to
collectors; tells them those officers shall have no discretion over
money received by them, and especially that they shall never retain
it to await the result of any contest concerning the right to it,
and that
quoad this money the statute has converted those
officers into mere instruments for its transfer to the Treasury.
With full knowledge thus imparted by the law, can it be correctly
understood that the party making payment can,
ex aequo et
bono, recover against the officer for acting in literal
conformity with the law, converting thereby the performance of his
duty into an offense; or that upon principles of equity and good
conscience, an obligation and a promise to refund shall be implied
against the express mandate of the law? Such a presumption appears
to us to be subversive of every rule of right. The more correct
inference seems to be that payment under such circumstances
Page 44 U. S. 250
must,
ex aequo et bono, nay,
ex necessitate,
and in despite of objection made at the time, be taken as being
made in conformity with the mandate of the law and the duty of the
officer, which exclude not only any implied promise of repayment by
the officer, but would render void an express promise by him,
founded upon a violation both of the law and of his duty. The
claimant had his option to refuse payment; the detention of the
goods for the adjustment of duties, being an incident of probable
occurrence, to avoid this it could not be permitted to effect the
abrogation of a public law, or a system of public policy
essentially connected with the general action of the government.
The claimant, moreover, was not without other modes of redress, had
he chosen to adopt them. He might have asserted his right to the
possession of the goods, or his exemption from the duties demanded,
either by replevin, or in an action of detinue, or perhaps by an
action of trover, upon his tendering the amount of duties admitted
by him to be legally due. The legitimate inquiry before this Court
is not whether all right of action has been taken away from the
party, and the court responds to no such inquiry. The question
presented for decision, and the only question decided, is whether,
under the notice given by the statute of 1839, payments made in
despite of that notice, though with a protest against their
supposed illegality, can constitute a ground for that implied
obligation to refund, and for that promise inferred by the law from
such obligation, which are inseparable from, and indeed are the
only foundation of, a right of recovery in this particular form of
action. And here is presented the answer to the assertion, that by
the act of 1839, or by the construction given to it by this Court,
the party is debarred all access to the courts of justice, and left
entirely at the mercy of an executive officer. Neither have
Congress nor this Court furnished the slightest ground for the
above assertion.
But the objection to a recovery in this action may be farther
extended, upon grounds which to the court appear to be insuperable.
We all know that this action for money had and received is founded
upon what the law terms an implied promise to pay what in good
conscience the defendant is bound to pay to the plaintiff. It being
in such case the duty of the defendant to pay, the law imputes to
him a promise to pay. This promise is always charged in the
declaration, and must be so charged in order to maintain the
action. It was upon this principle that the action for money had
and received was sustained in the case of
Elliott v.
Swartwout. There, money had been taken by the collector for
duties which were not imposed. This money lawfully belonged to the
plaintiff; it was the duty, therefore, of the collector to pay it
back to him. The collector was not bound to pay it to the
Treasurer, for the law did not command this disposition of it. It
did not belong to the United States, who had no right, therefore,
to demand it of him, and could not have recovered it against him in
a suit if he had paid it back to the true
Page 44 U. S. 251
owner. It being the duty of the collector to return what he had
unlawfully taken, the law implied on his part a promise to do so,
and on this implied promise, arising or inferred from a duty
imposed upon him, the action was maintained. The protest and notice
were to him of no farther importance than to warn him to hold over,
and to take away an excuse he might otherwise have had from payment
to his principal. It was his duty, as the law then stood, not to
pay over, but to pay back to the party from whom he had collected
without legal authority, when warned that this party should look to
him for reimbursement, and not to his principal. But the law never
implies a promise to pay unless duty creates the obligation to pay,
and more especially it never implies a promise to do an act
contrary to duty or contrary to law. Now under the statute of 1839,
if the collector receives money, though for duties not due, it is
nevertheless made his duty to pay it into the Treasury, to be
repaid there if the party claiming is found to be entitled to it.
And the question here is will the law imply a promise from the
collector to do that which is contrary to his official duty,
contrary to the command of a positive statute? If it will not, then
the action of assumpsit for money had and received will not lie in
this case.
Moreover, the law will never imply a promise where it would be
unjust to the party to whom it would be imputed, and contrary to
equity so to imply it. Suppose the collector should not, as
directed by law, pay the money into the Treasury, the United States
might undoubtedly maintain an action against him for money had and
received to their use. Because, it being his duty to do so, the law
would imply a promise to pay it. Can the law at the same time imply
a promise to pay it elsewhere or to another, and thus burden the
collector with the double obligation of paying to the government
and also to one claiming in adversary interest? If suit were
instituted against him by both parties, and were standing for trial
at the same time, would both be entitled to a recovery, and would
the law imply promises to both, promises to pay double the amount
received? We think not, and as the law in positive terms directs
payment to be made into the Treasury, there can be no judicial
implication contrary to law, nor that the collector will pay to
another what the law directs him to pay to the United States, and
no judicial implication which would require him to be guilty of an
act of official misconduct, or a breach of his duty to the public.
If the law implies a promise to pay back to the party, then it must
be the duty of the collector to do so as soon as it is demanded. If
the money may be recovered of him by suit, then he would be
justified in paying without suit, yet if he does so pay, he not
only violates a duty imposed by law, but may be compelled to pay
over again to the government, as for so much money had and received
to its use. We think the law can never imply a promise which must
be unjust and oppressive in its results to the party, or contrary
to his duty as
Page 44 U. S. 252
a public officer, and there being no implied promise, therefore
in this case the action for money had and received cannot be
maintained. It is perfectly clear to the Court that, under the act
of 1839, the United States has, by express law, a right to demand
the money from the collector and to recover it in an action for
money had and received, even if that officer had paid it over to
the person from whom he had received it, and we say with confidence
that in the multitude of cases that have been decided in relation
to that action, there is not one in which it had been held that
money could be recovered from a defendant when his voluntary
payment of it would leave him still liable to an action for the
same money by another.
We deem it unnecessary to examine further the grounds stated in
the second and third heads of inquiry, as forming the foundation of
the action for money had and received, or to bring to a particular
comparison with those grounds the law and the facts of this case,
as presented upon the record. The illustrations given under the
first head embrace all that is important under the remaining
divisions, with respect to the nature of the demand and the
position of the parties. Those illustrations establish, in the view
of the Court, that so far is the defendant from being obliged by
the ties of natural equity and justice to refund to the plaintiff
the money received for duties, that, on the contrary, under that
notice of the law which all must be presumed to possess, the
payment must be understood as having been made with knowledge of
the parties that the right of retaining or of refunding the money
did not exist in the defendant; that the money by law must pass
from him immediately upon its receipt; that payment to him was in
legal effect payment into the Treasury; that notice to him was,
under such circumstances, of no effect to bind him to refund; that
as the collector, since the statute, had power neither to retain or
refund, there could, as between him and the plaintiff, arise no
privity nor implication on which to found the promise raised by the
law, only where an obligation to undertake or promise exists, and
that therefore the action for money had and received could not in
this case be maintained, but was barred by the Act of Congress of
1839.
MR. JUSTICE STORY.
I regret exceedingly being compelled by a sense of duty to
express openly my dissent from the opinion of the majority of the
Court in this case. On ordinary occasions my habit is to submit in
silence to the judgment of the Court where I happen to entertain an
opinion different from that of my brethren. But the present case
involves, in my judgment, doctrines and consequences which, with
the utmost deference and respect for those who think otherwise, I
cannot but deem most deeply affecting the rights of all our
citizens, and calculated to supersede the great guards of those
rights intended to be secured by the Constitution through the
instrumentality of the
Page 44 U. S. 253
judicial power, state or national. The question, stripped of all
formalities, is neither more nor less than this: whether Congress
have a right to take from the citizens all right of action in any
court to recover back money claimed illegally, and extorted by
compulsion, by its officers under color of law, but without any
legal authority, and thus to deny them all remedy for an admitted
wrong, and to clothe the Secretary of the Treasury with the sole
and exclusive authority to withhold or restore that money according
to his own notions of justice or right? If Congress may do so in
the present case, in the exercise of its power to levy and collect
taxes and duties, and thus take away from all courts, state and
national, all right to interpret the laws for levying and
collecting taxes and duties, and to confide such interpretation to
one of its own executive functionaries, whose judgment is to be at
once summary and final, then I must say that it seems to me to be
not what I had hitherto supposed it to be: a government where the
three great departments, legislative, executive, and judicial, had
independent duties to perform each in its own sphere; but the
judicial power, designed by the Constitution to be the final and
appellate jurisdiction to interpret our laws, is superseded in its
most vital and important functions. I know of no power, indeed, of
which a free people ought to be more jealous, than of that of
levying taxes and duties, and yet if it is to rest with a mere
executive functionary of the government absolutely and finally to
decide what taxes and duties are leviable under a particular act,
without any power of appeal to any judicial tribunal, it seems to
me that we have no security whatsoever for the rights of the
citizens. And if Congress possess a constitutional authority to
vest such summary and final power of interpretation in an executive
functionary, I know no other subject within the reach of
legislation which may not be exclusively confided in the same way
to an executive functionary -- nay, to the executive himself. Can
it be true that the American people ever contemplated such a state
of things as justifiable or practicable under our Constitution? I
cannot bring my mind to believe it, and therefore I repeat it, with
the most sincere respect for my brethren who entertain a different
opinion, I deny the constitutional authority of Congress to
delegate such functions to any executive officer, or to take away
all right of action for an admitted wrong and illegal exercise of
power in the levy of money from the injured citizens. I am further
of opinion, as I shall endeavor presently to show, that Congress
never had contemplated passing any such act, and that the Act of 3
March, 1839, ch. 82, § 2, neither requires nor in my humble
judgment justifies such an interpretation.
What is the real question presented, upon the division of
opinion in the circuit court, for the consideration of this Court?
It is not whether an action to recover back the money illegally
claimed and paid to the collector for duties, in order to obtain
possession of the
Page 44 U. S. 254
goods by the owner under a protest they were not legally due,
would lie in the circuit court, for no such question arises on the
record, and it is incontrovertible and uncontroverted, that if any
such action would lie, it would lie in the national courts as well
as in the state courts. It is not whether Congress may limit,
restrain, modify, or even take away the right to sue in the
national courts, in cases like the present, or indeed in any other
class of cases not constitutionally provided for, but it is simply
whether the Act of Congress of 3 March, 1839, ch. 82, § 2, is a bar
to such an action in any court, state or national. If it is a good
bar in one court, it is good in all courts under the provisions of
that act. If Congress have a right to say, and have said, under the
provisions of that act, that no officers of the customs shall be
liable to any action for money extorted by him under color of his
office without authority and against law, then these provisions are
equally applicable to all courts, and furnish the rule of decision
for all. And Congress has an equal right to apply a like provision
to all other acts of all other officers done under color of office,
and the trial by jury may, in suits at common law, be completely
taken away in all such cases, and the right of final decision be
exclusively vested in the executive, or in any other public
functionary, at the pleasure of Congress.
Now how stands the common law on this very subject? It is that
an action for money had and received lies in all cases to recover
back money which a person pays to another in order to obtain
possession of his goods from the latter, who withholds them from
him upon an illegal demand or claim
colore officii, and
thus wrongfully receives and withholds the money. Such a payment is
in no just sense treated in law as a voluntary payment, but it is
treated as a payment made by compulsion, and extorted by the
necessities of the party who pays it. Such is the doctrine of the
common law as held in England, with a firm and steady hand, against
all the claims of prerogative, and it is maintained in our day as
the undeniable right of every Englishman, against the unjust and
illegal exactions of officers of the Crown. Mr. Justice Bayley laid
down the general principle with great exactness in
Shaw v.
Woodcock, 7 Barn. & C. 73, 84, and said:
"If a party has in his possession goods or other property
belonging to another, and refuses to deliver such property to that
other unless the latter pays him a sum of money which he has no
right to receive, and the latter, in order to obtain possession of
his property, pays that sum, the money so paid is a payment made by
compulsion, and may be recovered back."
In
Irving v. Wilson, 4 T.R. 485, the doctrine was
applied to the very case of the acts of an officer of the excise or
customs. Upon that occasion Lord Kenyon emphatically said:
"The revenue laws ought not to be made the means of oppressing
the subject. If goods liable to a forfeiture be forfeited, the
officer is to seize them for the King, but he is not permitted to
abuse the duties of his station,
Page 44 U. S. 255
and to make it a mode of extortion."
There are many other authorities leading to the same result, but
it is unnecessary to cite them, since the very point that an action
for money had and received lies against a collector of the customs
to recover back money demanded by and paid to him
colore
officii upon goods imported for duties not legally due thereon
has been, upon the most solemn deliberation, held by this Court in
the cases of
Elliott v.
Swartwout, 10 Pet. 137, and
Bend v.
Hoyt, 13 Pet. 263,
38 U. S.
267.
It is an entire mistake of the true meaning of the rule of the
common law, which is sometimes suggested in argument, that the
action of assumpsit for money had and received is founded upon a
voluntary express or implied promise of the defendant, or that it
requires privity between the parties
ex contractu to
support it. The rule of the common law has a much broader and
deeper foundation. Wherever the law pronounces that a party is
under a legal liability or duty to pay over money belonging to
another, which he has no lawful right to exact or retain from him,
there it forces the promise upon him
in invitum to pay
over the money to the party entitled to it. It is a result of the
potency of the law, and is in no shape dependent upon the will or
consent or voluntary promise of the wrongful possessor. The promise
is only the form in which the law announces its own judgment upon
the matter of right and duty and remedy, and under such
circumstances, any argument founded upon the form of the action,
that it must arise under or in virtue of some contract, is
disregarded, upon the maxim
qui hoeret in litera, hoeret in
cortice. Hence, it is a doctrine of the common law (as for as
my researches extend) absolutely universal, that if a man, by
fraud, or wrong, or illegality, obtains, or exacts, or retains
money justly belonging to another, with notice that the latter
contests the right of the former to receive, or exact, or retain
it, an action for money had and received lies to recover it back,
and it is no answer for the wrongdoer to say that he has paid it
over to his superior; for although as between the wrongdoer and his
superior, the maxim may well apply,
respondeat superior,
yet the injured party is not bound to seek redress in that
direction; and
a fortiori &c., he is not so bound,
where, as in the case of the government, the superior is not
suable. That would be a mere mockery of justice. And this is the
very doctrine affirmed in its full extent by this Court in the
cases of
Elliott v.
Swartwout, 10 Pet. 137, and
Bend v.
Hoyt, 13 Pet. 263,
38 U. S.
267.
An action for money had and received being then the known and
appropriate remedy of the common law, applied to cases of this
sort, to protect the subject from illegal taxation, and duties
levied by public officers, what ground is there to suppose that
Congress could intend to take away so important and valuable a
remedy, and leave our citizens utterly without any adequate
protection? It is said that circuitously another remedy may be
found. The answer is that if
Page 44 U. S. 256
Congress have taken away the direct remedy, the circuitous
remedy must be equally barred. But in point of fact, no other
judicial remedy does exist or can be applied. If the collector is
not responsible to pay back the money, nobody is. The government
itself is not suable at all, and certainly there is no pretense to
say that the Secretary of the Treasury is suable therefor. Where,
then, is the remedy which is supposed to exist? It is an appeal to
the Secretary of the Treasury for a return of the money, if in his
opinion it ought to be returned, and not otherwise. No court, no
jury -- nay, not even the ordinary rules of evidence -- are to pass
between that officer and the injured claimant, to try his rights or
to secure him adequate redress. Assuming that the Secretary of the
Treasury will always be disposed to do what he deems to be right in
the exercise of his discretion, and that he possesses all the
qualifications requisite to perform this duty, among the other
complicated duties of his office -- a presumption which I am in no
manner disposed to question -- still it removes not a single
objection. It is, after all, a substitution of executive authority
and discretion for judicial remedies. Nor should it be disguised
that upon so complicated a subject as the nature and character of
articles made subject to duties, grave controversies must always
exist (as they have always hitherto existed) as to the category
within which particular fabrics and articles are to be classed. The
line of discrimination between fabrics and articles approaching
near to each other in quality, or component materials, or
commercial denominations, is often very nice and difficult, and
sometimes exceedingly obscure. It is the very case, therefore,
which is fit for judicial inquiry and decision, and falls within
the reach of that branch of the judicial power given by the
Constitution, where it is declared "that the judicial power shall
extend to all cases in law and equity arising under this
Constitution, the laws of the United States, and treaties &c."
If, then, the judicial power is to extend to all cases arising
under the laws of the United States, upon what ground are we to say
that cases of this sort, which are eminently "cases arising under
the laws," and of a judicial nature, are to be excluded from
judicial cognizance, and lodged with an executive functionary?
Besides, we all know that in all revenue cases it is the
constant practice of the Secretary of the Treasury to give written
instructions to the various collectors of the customs as to what
duties are to be collected under particular revenue laws, and what,
in his judgment, is the proper interpretation of those laws. I will
venture to assert that, in nineteen cases out of twenty of doubtful
interpretation of any such laws, the collector never acts without
the express instructions of the Secretary of the Treasury. So that
in most, if not in all cases where a controversy arises, the
Secretary of the Treasury has already pronounced his own judgment.
Of what use then, practically speaking, is the appeal to him, since
he has already given his decision? Further, it is well known, and
the annals of
Page 44 U. S. 257
this Court as well as those of the other courts of the United
States establish in the fullest manner, that the interpretations so
given by the Secretary of the Treasury have, in many instances,
differed widely from those of the courts. The Constitution looks to
the courts as the final interpreters of the laws. Yet the opinion
maintained by my brethren does, in effect, vest such interpretation
exclusively in that officer.
These considerations have led me to the conclusion that it never
could be the intention of Congress to pass any statute, by which
the courts of the United States, as well as the state courts,
should be excluded from all judicial power in the interpretation of
the revenue laws, and that it should be exclusively confided to an
executive functionary finally to interpret and execute them -- a
power which must press severely upon the citizens, however
discreetly exercised, and which deeply involves their
constitutional rights, privileges, and liberties. The same
considerations force me, in all cases of doubtful or ambiguous
language admitting of different interpretations, to cling to that
which should least trench upon those rights, privileges, and
liberties, and
a fortiori to adopt that which would be in
general harmony with our whole system of government.
And this leads me to say that after the most careful examination
of the 2d section of the act of 1839, ch. 82, I have not been able
to find any ground to presume that Congress ever contemplated
anything contained in that section to be a bar to the present
action. I look upon that section as framed for a very different
object, an object founded in sound policy and to secure the public
interest. It was to prevent officers of the customs from retaining
(as the habit of some had been) large sums of money in their hands
received for duties, upon the pretense that they had been paid
under protest, and thus to secure in the hands of the officers a
sufficient indemnity for all present as well as future liabilities
to the persons who had paid them. By this means large sums of money
were withheld from the government, and there was imminent danger
that severe losses might thus be sustained from the defalcation of
those officers, and the public revenue might be thus appropriated
to the personal business or speculating concerns of the officers.
If actions should be brought and judgment obtained against such
officers for the repayment of any of such duties, it was plain that
the government would be bound to indemnify them, especially if they
had acted under instructions from the Treasury Department. On the
other hand, the government, being in possession of the money, would
hold it in the meantime as a deposit to await events, and to refund
the same if in the due administration of the law it was adjudged
that it ought to be refunded. Such, in my judgment, was the object
and the sole object of the section, and it seems to me in this view
to be founded in a wise protective policy.
Page 44 U. S. 258
With this exposition in our view, let us examine the language of
the section. It is as follows:
"That from and after the passage of this act, all money paid to
any collector of the customs or to any person acting as such, for
unascertained duties or for duties paid under protest against the
rate or amount of duties charged, shall be placed to the credit of
the Treasurer of the United States, kept and disposed of as all
other money paid for duties is required by law or by regulation of
the Treasury Department to be placed to the credit of said
Treasurer, kept and disposed of, and shall not be held by the said
collector or person acting as such to await any ascertainment of
duty, or the result of any litigation in relation to the rate or
amount of duty legally chargeable and collectible in any case where
money is so paid."
Now pausing here, it seems to me that the clause is plainly and
merely directory to the collector or person acting as such,
pointing out his duty and requiring him to pass the money so paid
to the credit of the government as soon as it is received. Nothing
is here said as to the rights of third persons, who pay the money
for duties; no declaration is made that the collector shall not be
liable to any action for such duties, if not legally demandable or
payable, or that the collector or such other person shall not be
liable to refund the same. And yet, if such had been the intention
of Congress, it seems to me incredible that a provision to this
effect should not have been found in the act. But further, not only
is there a total absence of any such provision, but there is
positive evidence that Congress contemplated that there would be
suits brought against the collectors and other persons for the
repayment of such duties, and, accordingly, as we see, the money is
not to be retained by them "to await any ascertainment of duties or
the result of any litigation." The language is not limited to the
result of past or pending litigation, but it equally applies to
future litigation; in short, any litigation, without any limitation
as to time, and indeed to be co-extensive with the permanent
prospective operation of the act. If then, there is in this clause
no positive or implied bar to any action provided for, and if the
clause is perfectly satisfied by deeming it to be what it professes
on its face to be, a regulation addressed to the collectors and
other persons collecting duties, and directory to them, let us see
if the subsequent clause, which contains the residue of the
section, either enlarges, or qualifies, or repels the inferences
drawn from the preceding clause. This clause is,
"But whenever it shall be shown to the satisfaction of the
Secretary of the Treasury that, in any case of unascertained duty
or duties paid under protest, more money has been paid to the
collector or other person acting as such, than the law requires
should have been paid, it shall be his duty to draw his warrant
upon the Treasurer in favor of the person or persons entitled to
the overpayment, directing the said Treasurer to refund the same
out of any money in the Treasury not otherwise appropriated. "
Page 44 U. S. 259
This is the whole of the clause, and, unless I am greatly
deceived in its purport and effect, not one word is to be found
therein which bars the party who has paid the money from his right
of action against the collector or other persons acting as such to
recover back the money illegally claimed, or which compels such
party to make his application or appeal solely to the Secretary of
the Treasury for redress, or gives to the latter exclusive power,
jurisdiction, and final arbitrament in the premises. The true
object of this clause seems to be precisely what its language
imports, to give the Secretary of the Treasury a power which he did
not previously possess, to draw from the Treasury money which had
been overpaid for duties when he was satisfied of such overpayment,
upon the application of the party interested. It was not to be
compulsive on the party, that he should so apply, but he had an
option to apply to the Secretary, to save the delay and expense of
a protracted litigation, if the Secretary should grant him the
desired relief. It would also diminish the necessity of
applications to Congress for the repayment of money which had been
illegally paid for duties, by enabling the Secretary to draw his
warrant upon the Treasury for the amount; which relief, when the
money had been paid into the Treasury, could not before be obtained
except by means of an act of Congress. It was therefore an
auxiliary provision to the general rights of action secured to the
party by the common law, and not in extinguishment or suspension of
it. Whether the clause clothed the Secretary also with authority to
draw a warrant in favor of the party, if he recovered back the
money in a suit at law against the collector, is a matter which
might, upon the strict words of the clause, admit of some doubt,
since the case provided for is only where the overpayment shall be
shown to the satisfaction of the Secretary, and not where it is a
result of a judgment at law. But a liberal construction might
embrace such a case also, as within the intent, if not strictly
within the words. But be this as it may, it is manifest to my mind,
with all deference to the judgment of others, that the affirmative
power thus given by this clause to the Secretary, cannot be
construed to exclude the right of the party to his remedy at the
common law without a violation of the known rules of
interpretation, by adding important and material language which the
legislature has not used, and incorporating provisions which
neither the words nor the professed objects of the section
require.
Nor am I able to perceive any grounds upon which a different
interpretation can be maintained, unless it be, that it would be a
hardship upon the collector to require him to pay money over to the
government which he might be compelled again to pay to the party
from whom he had illegally demanded it. One answer to this
suggestion is that he cannot complain, because it is his own choice
to hold an office to which such a duty or responsibility is
attached, and if he elects to hold it, he ought to take it
cum
onere.
Page 44 U. S. 260
Another and conclusive answer is that he has a perfect right of
indemnity from the government; nor can it be doubted that the
government will always indemnify all its officers for acts done by
its orders and demands made under its authority. On the other hand,
an extreme hardship would be thrown upon the injured party, whose
money is taken from him against his will by color of office, and
against his right, if his common law remedy is swept away, for then
he can have no means of redress, and no indemnity, since he has
resisted the demands of the government and asserts an adversary
interest.
Nor is it any ground of excuse (as has been already suggested),
in case of money paid by compulsion, that the officer has paid over
the money to his principal, and in this respect it differs from the
case of a voluntary payment. This distinction was taken and acted
upon in the case of
Snowden v. Davis, 1 Taunt. 358, where
money had been paid to a bailiff under a threat of a distress by an
excess of authority, and the money had been paid over by him to the
sheriff, and by the latter into the exchequer. And the same
doctrine was fully recognized and confirmed by this Court upon the
most solemn consideration in
Elliott v.
Swartwout, 10 Pet. 137, after a full review of all
the leading authorities.
Upon the whole, my opinion is that the question propounded by
the circuit court upon the division of opinion of the judges in
that court, ought to be answered in the negative, that the 2d
section of the Act of 3 March, 1839, ch. 82, was no bar to the
action.
MR. JUSTICE McLEAN.
This suit was brought to recover from the defendant, collector
of the customs, an excess of duties exacted by him of the
plaintiffs against law. And on the trial in the circuit court the
judges were divided on the question, "whether the Act of 3 March,
1839, was a bar to the action." This point has been certified to
this Court.
The 2d section of the above act provides
"That from and after the passage of this act, all money paid to
any collector of the customs, or to any person acting as such, for
unascertained duties, or for duties paid under protest against the
rate or amount of duties charged, shall be placed to the credit of
the Treasurer of the United States, kept and disposed of as all
other money paid for duties is required by law or by regulation of
the Treasury Department to be placed to the credit of the said
Treasurer, kept and disposed of, and shall not be held by the said
collector, or person acting as such, to await any ascertainment of
duties or the result of any litigation in relation to the rate or
amount of duty legally chargeable and collectible in any case where
money is so paid, but whenever it shall be shown to the
satisfaction of the Secretary of the Treasury, that, in any case of
unascertained duties or duties paid under protest, more
Page 44 U. S. 261
money has been paid to the collector or person acting as such
than the law requires should have been paid, it shall be his duty
to draw his warrant upon the Treasurer in favor of the person or
persons entitled to the overpayment, directing the said Treasurer
to refund the same out of any money in the Treasury not otherwise
appropriated."
In the case of
Elliott v.
Swartwout, 10 Pet. 137, and in
Bend v.
Hoyt, 13 Pet. 263, this Court held that illegal
duties exacted by the collector were recoverable from him, where
paid under protest, by the importer, in an action of assumpsit.
This doctrine is not questioned in this country or in England. Has
the 2d section of the act above cited changed the law in this
respect? A majority of the judges have decided in the affirmative,
and that that act constitutes a bar to an action in such a case. I
dissent from the opinion of the Court.
The above section, in my judgment, so far from taking away the
legal remedy, expressly recognizes it. The collector is required,
"from and after the passage of the act," to pay over to the
Treasurer the moneys in his hands, and not "to await any
ascertainment of duties, or the result of any litigation in
relation to the rate or amount of duty legally chargeable," &c.
Now if Congress intended by this section to withdraw this subject
from the courts, and vest the exclusive right to decide the matter
in the Secretary of the Treasury, could they have used this
language? The law was not to operate upon the past, but upon the
future acts of the collector. And I ask in sober earnestness
whether the collector could be required to pay over money, "and not
await the result of a litigation," as "to the amount of duties
legally chargeable," if the intention was to prohibit such
litigation. I use the words of the section, and the words of the
section alone, as I think, are conclusive as to the intention of
Congress. The collector must pay over the money, and not retain it
until the termination of a suit. Does this take away the right to
bring a suit? Such an inference, it seems to me, would be as
exceptionable in logic as in law.
From the proceedings of this Court we know that collectors of
the customs after their removal from office or the expiration of
their term, and sometimes while in office, under the pretext of
indemnifying themselves against suits for the exaction of illegal
duties, were in the practice of withholding from the Treasury large
sums of money. And it was to remedy this evil that the above law
was passed. As to the remission of duties illegally charged, it
vested in the Secretary no new powers, but it authorizes him, where
the excess of duty has been paid into the Treasury, to draw it out
by a warrant, and pay it over to the person entitled to receive it.
By the 21st section of the Duty Act of 1799, 1 Story 592, the
collectors
"were required, at all times, to pay to the order of the proper
officer the whole of the moneys which they may respectively receive
&c., and shall once in three months, or oftener, if required,
transmit their accounts, "
Page 44 U. S. 262
&c. Now it is known from public documents and from cases
before this Court, that the Secretary of the Treasury has, for a
long time before the act of 1839, required the collector of New
York to pay over moneys received by him, weekly or at short
intervals. And can it be pretended that the act of 1799, under the
instructions of the Secretary of the Treasury, was not as binding
upon collectors as the act of 1839? In a legal point of view the
liability of a collector was the same for illegal duties received
by him, whether paid into the Treasury under the one law or the
other.
It is said that the law cannot raise a promise to pay by an
officer, where it requires him to pay the same money into the
Treasury. The action is founded on the illegality of the
transaction. None other than legal duties are payable to the
government; and where an officer by his own volition, or acting
under the instructions of his superior, demands a higher duty than
the law authorizes, he is guilty of a wrong which his instructions
cannot justify. And having done this, can it be contended, that by
paying over moneys so obtained he can escape the legal consequence
of his unlawful act? Where one person obtains money illegally from
another, is he not bound in conscience to return it? And may not an
action of assumpsit be sustained for the recovery of the money? In
such an action the question is whether the defendant has received
money which he is bound in good conscience to pay to the plaintiff.
Now if the defendant, as collector, exacted a higher duty of the
plaintiffs than the law authorized, is he not bound in conscience
to return the excess? But it is said that he has paid it over to
the Treasury of the United States, in pursuance of the act of 1839,
and that this is a bar to the action. Why has not this bar been set
up under the act of 1799? By that act the collector, when ordered
by the Secretary of the Treasury, was as much bound to pay over the
money in his hands into the Treasury as under the act of 1839. And
yet for forty-four years such a defense has not been thought of. It
has never been supposed that the payment of the money into the
Treasury exonerated the collector. He has violated the law, and he
is answerable for that violation. This must be the case unless, in
the language of this Court in the case of
Elliott v.
Swartwout, above cited,
"the broad proposition can be maintained, that no action will
lie against a collector to recover back an excess of duties paid
him, but that recourse must be had to the government for redress.
Such a principle,"
the court said, "would be carrying an exemption to a public
officer beyond any protection sanctioned by any principles of law
or sound public policy."
In
Townson v. Wilson, 1 Campb. 396, Lord Ellenborough
said, "If any person gets money into his hands illegally, he cannot
discharge himself by paying it over to another." The same doctrine
is held in
Sadler v. Evans, 4 Burr. 1986. And this Court
in the above case of
Elliott v. Swartwout said,
"It may be assumed as the
Page 44 U. S. 263
settled doctrine of the law that where money is illegally
demanded and received by an agent, he cannot exonerate himself from
responsibility by paying it over to his principal, if he has had
notice not to pay it over. A notice not to pay over the money to
the principal, it is contended, presupposes a right in the agent to
retain it. No such inference could arise under the act of 1799, nor
can it be made under the present law. The notice should induce the
collector to reconsider his act, and if found to have been against
law to correct it. But it is said, he may have acted under the
orders of the Secretary of the Treasury. Suppose he did, would that
justify or excuse an illegal act? I will answer this in the
language of this Court in the case last cited:"
"Any instructions from the Treasury Department could not change
the law or affect the rights of the plaintiff. He, the collector,
was not bound to take and adopt that instruction. He was at liberty
to judge for himself, and act accordingly."
And in
Tracy v.
Swartwout, 10 Pet. 99, this Court said, "that the
personal inconvenience of the collector is not to be considered."
When acting under instructions the government is bound to indemnify
him. In my judgment, the act of 1839 interposes no bar to this
action.
But there is another aspect in which this case must be
considered. Feeling, as I do, an unfeigned respect for the opinion
of the judges who differ from me, yet I cannot, without concern,
look at the consequences of the principle established in this case.
The right of a citizen to resort to the judicial tribunals of the
country, federal or state, for redress for an injury done by a
public officer, is taken away by the construction of an act of
Congress which, in my judgment, bears no such construction. But I
will take higher ground and say that Congress have no
constitutional power to pass such an act as the statute of 1839 is
construed to be by this decision.
By the 2d section of the 3d article of the Constitution of the
United States, the judicial power extends to all cases in law and
equity arising under the Constitution and laws of the union. And by
the 7th section of the amendments to the Constitution it is
provided that "in suits at common law, where the value in
controversy shall exceed twenty dollars, the right of trial by jury
shall be preserved."
The act of 1839, in my judgment, does not conflict with either
of the above constitutional provisions. But if it take away the
right of the citizen to sue in a court of law for the injury
complained of, as construed by my brethren, then it is in direct
conflict with both of the above provisions.
In a matter of private right it takes from the judiciary the
power of construing the law and vests it in the Secretary of the
Treasury, the executive officer under whose sanction or instruction
the wrong complained of was done.
Page 44 U. S. 264
And in the second place it takes from the citizen the right of
trial by jury, which is expressly given to him by the
Constitution.
I again repeat that Congress has not done this, nor did it
intend to do it by the act of 1839. But the act is so construed by
the decision just pronounced. Under this view, I feel myself bound
to consider the principle established by the Court, and to speak of
its consequences.
That the act, as construed, is in direct conflict with the above
provisions of the Constitution, is so palpable that it seems to me
no illustration could make it clearer.
The right to construe the laws in all matters of controversy, is
of the very essence of judicial power. Executive officers who are
required to act under the laws, of necessity, must give a
construction to them. But their construction is not final. When it
operates injuriously to the citizen, he may, by any and every
possible means through which it may be brought before the courts,
have the construction of the law submitted to them, and their
decision is final.
But the Court said that the plaintiffs in this case cannot seek
redress for the injury complained of, by an action at law, but,
under the act of 1839, are referred to the Secretary of the
Treasury; an executive officer, who has prejudged the case, who can
exercise neither the forms nor the functions of a judicial officer,
who acts summarily, without a jury, and from whose judgment there
is no appeal. The case turns upon facts; facts properly triable by
a jury. The question is whether the articles on which the duties
have been assessed, are such articles as under the law are liable
to be thus taxed. This is a question most fit to be answered by a
jury of merchants, under the instructions of a court of law. The
plaintiffs allege that the duty was not authorized by law, but to
obtain possession of their goods, they were compelled to pay it,
protesting against the right of the government. And they brought an
action at law to recover from the collector the excess of duty
paid. This course had been sanctioned by previous decisions. It
was, in fact, the only effectual course they could take to obtain
possession of their goods. A tender of the legal duty, and a
replevin, if it would lie, involved the necessity of security for
the return of the goods which, if in the power of the importers,
might not have been convenient to them. But a replevin is expressly
prohibited in such a case by the Act of 2 March, 1833.
The question arises on the facts stated. Illegal duties were
demanded by the collector and paid to him by the plaintiffs before
they could obtain their goods, and the question is has their remedy
at law been cut off by the statute of 1839? This is a taxing power
-- the most delicate power that is exercised by the government. It
reaches the concerns of the citizen, and takes from him a part of
his property for purposes of revenue. The tax should be judicious,
and the mode of collecting it should be specially guarded. Care
Page 44 U. S. 265
should be taken not to infringe private right in making this
public exaction. But especially where in this respect a wrong has
been done to the citizen, the courts should be open to him. His
remedy should be without obstruction. But my brethren say that the
act of 1839 takes away from the plaintiff all remedy except an
appeal to the Secretary. The state courts as well as the federal
are closed against the injured party.
The able men who laid the foundation of this government saw
that, to secure the great objects they had in view, the executive,
legislative and judicial powers, must occupy distinct and
independent spheres of action. That the union of these in one
individual or body of men constitutes a despotism. And every
approximation to this union partakes of this character.
What though no positive injustice be done to the plaintiffs in
this case; is that any reason why the great principle involved in
it should be yielded? What is this principle? It is nothing less
than this -- that throughout the whole course of executive action,
summary, diversified, and multiform as it is, for wrongs done the
citizen, all legal redress may be withdrawn from him, and he may be
turned over as a petitioner to the power that did the wrong. If
this may be done in the case under consideration, it may on the
same principle be done in every similar case.
A seizure of a vessel and cargo may be made by an officer under
a supposed breach of the revenue law, and the question of
forfeiture may be referred to the Secretary of the Treasury.
Private property may be taken for public purposes, and the owner
may be limited to the remedy, if remedy it may be called, of
petitioning some executive officer for remuneration. Military
violence may be perpetrated on the person of a citizen or on his
property, and his relief may be made to depend on the will of the
commander-in-chief. In short, in every line of the executive power,
wrongs may be done and legal redress may be denied.
The cases put may seem to be extreme ones, and therefore not
likely to happen. But do they not test the principle? I think they
do. If Congress may deprive these plaintiffs of their remedy by
action at law, they may do the same thing in the cases specified.
Indeed it would be difficult to prescribe any limit to legislative
action on this subject. It can, at least, be extended through all
the ramifications of executive power.
To say that this will never be done, and that the consequences
spoken of can never happen, is no answer to the argument. Do the
consequences lie within the exercise of the principle? If they do,
the consequences must follow a general exercise of the power. The
danger is in sanctioning the principle. At this point, I meet the
principle and combat it. I object to it because it is dangerous and
may be ruinous. It takes from the citizen his rights -- rights
secured to him by the Constitution; the trial by jury in a court
of
Page 44 U. S. 266
law. This is done by the act of 1839, if it be what it is now
construed to be. In this aspect, then, I say, the act is
unconstitutional and void. It not only strikes down the rights of
the citizen, but it inflicts a blow on the judicial power of the
country. It unites, in the same department, the executive and
judicial power. And on a subject the most delicate and interesting,
and one which, of all others, may most easily be converted into an
engine of oppression.
In this government, balances and checks have been carefully
adjusted, with a view to secure public and private rights, and any
departure from this organization endangers all. We have less to
apprehend from a bold and open usurpation by one department of the
government, of powers which belong to another, than by a more
gradual and insidious course. In my judgment, no principle can be
more dangerous than the one mentioned in this case. It covers from
legal responsibility executive officers. In the performance of
their ministerial duties, however they may disregard and trample
upon the rights of the citizen, he can claim no indemnity by an
action at law. This doctrine has no standing in England. No
ministerial officer in that country is sheltered from legal
responsibility. Shall we in this country be less jealous of private
rights and of the exercise of power? Is it not our boast that the
law is paramount, and that all are subject to it, from the highest
officer of the country to its humblest citizen? But can this be the
case if any or every executive officer is clothed with the
immunities of the sovereignty? If he cannot be sued, what may he
not do with impunity? I am sure that my brethren are as sincere as
I am, in their convictions of what the law is, in this case, and I
have only to regret that their views do not coincide with those I
have stated.