1. An importer from whom a collector exacted illegal duties
could not, under the Act of 1839, maintain assumpsit to recover
back the excess unless the suit was brought before the officer paid
the money into the Treasury.
2. The act of 1845 gave the right of recovering back such
excessive duties to all importers who had paid or might thereafter
pay them, under protest in writing, with the grounds of objection
distinctly set forth.
3. Whether this latter ac, has a retroactive operation so as to
include the case of a person from whom excessive duties were
exacted before its passage,
quaere.
4. But it is certain that a party whose claim for excessive
duties is not recoverable under the act of 1839 and who seeks to
recover under the act of 1845 cannot avail himself of the latter
statute without bringing himself within its terms by showing that
he made proper protest at the time of payment.
5. A party imported iron and hemp at the same time, entered them
together, and made a general protest against the duties charged in
the entry, without discrimination of the packages and stating no
ground of objection except that the charge was illegal.
Held that such a protest utterly fails to meet the
requirements of the act of 1845.
6. The importer must indicate by his protest the distinct and
definite ground of his objection to the charge and show his
intention to reclaim the excess.
7. This distinctness is required that the officers may know to
what amount of risk and responsibility they expose the government
by taking the duties in the face of the objection.
Page 67 U. S. 462
Ernest Fiedler, a merchant of New York, in September, 1842,
imported into the port of New York from St. Petersburgh, Russia, in
the ship
Nicholas Savin, a quantity of unmanufactured
hemp. He also imported at the same time by the same vessel a
quantity of iron in bars.
The Tariff act of August 30, 1842, which was in operation at the
time of the importation, contained the following provision in
respect to the duty to be levied on hemp:
"On manufactured hemp,
forty dollars per ton; on
manila, sunn, and other hemps of India, on jute sisal, grass, coir,
and other vegetable substances, not enumerated, used for cordage,
twenty-five dollars per ton."
Tariff Act of 1842, sec. 3, sub. 3.
Edward Curtis, at that time Collector of the Port of New York,
treated this hemp as unmanufactured hemp and charged upon it a duty
of $2,575.38, being at the rate of $40 per ton. The duties thus
charged upon the iron amounted to the further sum of $848.56. The
importer protested against the payment of the duties thus charged
on the entire importation. The protest was in writing upon the
margin of the entry, which embraced both the hemp and the iron, and
was as follows:
"
I hereby protest against the payment of the duty charged in
this entry on account that there exists no law authorizing the
exaction of said duty. Sept. 1, 1842."
No other protest against or objection to the payment of the
duties was made by or on behalf of the plaintiff. The duties were
paid to the collector
September 6, 1842, and by him paid
into the Treasury of the United States.
The plaintiff afterwards, in November, 1847, brought the action
of
assumpsit to recover the difference between the amount
of duties charged and paid on the hemp specified in the entry at
the rate of $40 per ton and the amount calculated at the rate of
$25 per ton, the difference claimed being $965.77. The defendant
pleaded
non-assumpsit.
At the trial before Mr. Justice Nelson and a jury, the above
facts were proved, and the plaintiff claimed that under articles 6
and 11, of the Treaty between the United States and Russia of
Page 67 U. S. 463
December 6 and 18, 1832, the exaction of any duty on the hemp in
question beyond $25 per ton was unauthorized and illegal. The
articles of the treaty thus relied on are as follows:
"
Article 6. No higher or other duties shall be imposed
on the importation into the United States of any article, the
produce or manufacture of Russia, and no higher or other duties
shall be imposed on the importation into the Empire of Russia, of
any article the produce or manufacture of the United States, than
are or shall be payable on the like article being the produce or
manufacture of any other foreign country. Nor shall any prohibition
be imposed on the importation or exportation of any article, the
produce or manufacture of the United States or of Russia, to or
from the ports of the United States, or to or from the ports of the
Russian Empire, which shall not equally extend to all other
nations."
"
Article 11. If either party shall hereafter grant to
any other nation any particular favor in navigation or commerce, it
shall immediately become common to the other party freely where it
is freely granted to such other nation, or on yielding the same
compensation when the grant is conditional."
The plaintiff grounded his right to recover on this: that the
treaty with Russia fixed the duties on hemp imported from that
country at the rates imposed on the same articles from any other
country, and inasmuch as the tariff of 1842 imposed only $25 per
ton on India hemp, no higher duty could be legally charged on
Russian hemp.
The plaintiff called witnesses to prove that Russian and Manila
hemps are known in trade and commerce as "hemp," and serve
substantially the same purposes, being all used in the manufacture
of cordage &c. On the part of defendant it was proved and
admitted by plaintiff's counsel that all the hemps of India are the
products not of the
cannabis sativa, the ordinary hemp
plants of Russia and the United States, but of other and different
plants and trees.
The defendant asked the court to instruct the jury as
follows:
"
First. That the present action of assumpsit cannot be
maintained, inasmuch as by the 2d section of the General
Appropriation
Page 67 U. S. 464
Act of the 3d of March, 1839, which was in force at the time of
the receipt of said moneys by the defendant, he was required to pay
and did pay such moneys into the Treasury of the United States, and
that the Act of Congress of the 26th of February, 1845, cannot
operate, nor should it be construed to operate,
retroactively to subject defendant in his individual
capacity to such action."
"
Secondly. That the present action cannot be
maintained, inasmuch as defendant acted in precise conformity to
the Tariff Act of August 30th, 1842, by which a duty of $40 per ton
was laid on all manufactured hemps (except the hemps of India);
that as between the defendant as collector and plaintiff as
importer, the amount of duties to be paid was conclusively fixed by
the said act of Congress. That the question whether or not the
discrimination made by the said act of August 30, 1842, between the
hemps of India and other unmanufactured hem, was, in respect to
Russian hemp, an infraction of the treaty previously made with
Russia, was exclusively a question to be discussed and settled by
and between the government of Russia and the government of the
United States, and that in a private action between the importer
and the defendant, it was not competent for the plaintiff to raise,
nor for the judicial tribunals to decide, any such question."
"
Thirdly. That the present action could not be
maintained, because the protest of the plaintiff, dated September
1, 1842, did not refer to the treaty with Russia nor set forth
distinctly and specifically any ground of objection to the payment
of the moneys, or any part thereof, charged by the defendant for
duties on the hemp in question, nor did it discriminate between the
duties so charged on such hemp and the duties charged on the iron
included in the entry, but, on the contrary, the said protest
referred to all the duties charged in the said entry -- those
charged on the iron equally with those charged on the hemp, and
placed the objection to the payment thereof on the ground that
there was no law authorizing their exaction."
"
Fourthly. That upon the true construction of the
Tariff Act of the 30th of August, 1842, all hemps, wherever
produced, and
Page 67 U. S. 465
even though produced in India, which are the products of the
cannabis sativa, are charged with a duty of $40 per ton,
and the lesser duty of $25 per ton is limited to hemps not the
products of
cannabis sativa, but of other and different
plants or trees, and that therefore the discrimination made in
favor of such hemps of India was not an infraction of the treaty
with Russia."
The court refused to give the instructions so requested by the
defendant, but directed the jury that if they found from the
evidence that the hemps of India were, at the time of the passage
of the Tariff Act of 1842, generally known in trade and commerce as
unmanufactured hemps, the plaintiff was entitled to a verdict for
the amount claimed by him, and in accordance with that view the
verdict was rendered and judgment given. The defendant took this
writ of error.
Page 67 U. S. 474
Mr. Justice CLIFFORD.
This is a writ of error to the Circuit Court of the United
States for the Southern District of New York. According to the
transcript, the suit was commenced by the present defendant against
Edward Curtis in the Superior Court of the City of New York to
recover back an alleged excess of duties paid by the plaintiff upon
certain goods and merchandize imported into the Port of New York
during the period that the defendant in the court below was the
collector of the customs of that port. Date of the writ does not
appear, nor is it of any importance in this investigation, as the
record of the suit was on the 1st day of February, 1847, duly
transferred under the 3d section of the Act of the 2d of March,
1833, into the circuit court of the United States, where all the
proceedings in the suit took place, which are now the subject of
revision. 4 Stat. at Large 633. Suit was upon promises, and the
declaration contained the common counts as in
indebitatus
assumpsit. Subsequently to the transfer of the record, the
defendant, then in full life, appeared and pleaded that he never
promised in manner and form as the plaintiff had alleged against
him, and upon that issue the parties at the April Term, 1849, were
to trial. To maintain the issue on his part, the plaintiff produced
and gave in evidence an original entry made by him at the custom
house in the Port of New York on the 1st day of September, 1842, of
certain goods and merchandise imported into that port from St.
Petersburg, in Russia, in the Russian ship
Page 67 U. S. 475
Nicholay Savin, and which goods and merchandize were
duly consigned to the plaintiff by the shipper and owner. Three
packages were specified in the entry, of which two consisted of
hemp in bundles and the other of iron in bars, hammered. As
described in the entry, one of the packages of hemp contained fifty
bundles and the other fifteen, and the package of iron contained
eighteen hundred and thirty-five bars.
Unmanufactured hemp, by the Act of the 30th of August, 1842, was
subject to a duty of $40 per ton, but manila, sunn, and other hemps
of India were subject to a duty of only $25 per ton. These
provisions of the tariff act under consideration are plain and
clear, and by reference to the 4th section of the act it will be
seen that iron in bars or bolts, not manufactured in whole or in
part, was subject to a duty of $17 per ton. 5 Stat. at Large 550,
551.
Parties admitted at the trial that the defendant was the
Collector of the Port of New York at the time the entry was made,
and that he, as such collector, pursuant to the instructions of the
department, charged on the hemp included in the entry duty of $40
per ton, under the before-mentioned act of Congress. They also
admitted that the duties on the hemp as charged by the collector
amounted to $2,575.38, and that the duties charged at the same time
on the iron included in the entry amounted to $848.56, making an
aggregate charge for duties on the whole importation of $3,423.94.
Demand of that amount as the proper charge for the duties on the
importation was made by the defendant on the day of the entry, and
the plaintiff on the same day protested against the payment of the
same in writing, as appears on the margin of the entry in the words
following, to-wit: "I hereby protest against the payment of the
duty charged in this entry on account that there exists no law
authorizing the exaction of said duty." But the whole sum,
notwithstanding the protest, was exacted by the defendant, and the
plaintiff accordingly, on the 6th day of the same month, paid the
amount charged, and on the same day the defendant paid the same
into the Treasury of the United States. Plaintiff insisted at the
trial that by virtue of the 6th and 7th articles of
Page 67 U. S. 476
the treaty between the United States and Russia the hemp
included in the entry could only be charged with the same duty as
that imposed in the tariff act on the hemps of India, because the
articles of the treaty referred to stipulate in effect that no
higher duty shall be imposed on the produce of Russia imported here
than is imposed on the like articles of produce imported from the
most favored nations. 8 Stat. at Large 446.
Evidence was accordingly introduced by the plaintiff tending to
show that both the Russian hemp and the hemps of India are known in
trade and commerce as hemp, and that both are used in the
manufacture of cordage, and serve substantially the same purposes.
On the other hand, the defendant proved, or it was admitted, that
all the hemps of India are the products not of the cannabis sativa,
the ordinary hemp plants of Russia and the United States, but of
other and different plants and trees, and upon the exhibition of
the foregoing proofs both parties rested.
Defendant controverted the position assumed by the plaintiff
that the rate of duty could not exceed that imposed by law on the
hemps of India, and also insisted that the action could not be
maintained against him because the protest of the plaintiff did not
set forth any distinct and specific ground of objection to the
payment of the duties charged on the hemp, and certainly did not
set forth distinctly and specifically any such ground of objection
to the payment of the same as that assumed by the plaintiff, or in
any manner discriminate between the duties charged on the hemp and
the duties charged on the iron included in the same entry, but
placed the objection to the payment of the moneys solely on the
general ground that there was no law authorizing the exaction.
Prayers for instructions were presented by the defendant
affirming that the hemp was legally chargeable with a duty of $40
per ton, and also embodying the substance of the foregoing
objections to the right of the plaintiff to maintain the action,
but the presiding justice concurring with the plaintiff upon the
merits, refused the requests, and, among other things, instructed
the jury that the action might be maintained, although it was an
action of assumpsit for the recovery of moneys received by
Page 67 U. S. 477
the defendant for duties paid under protest while the Act of the
3d of March, 1839, was in force, and before the Act of the 26th of
February, 1845, was passed, and that the protest in writing of the
plaintiff was sufficiently precise and distinct to enable the
plaintiff to recover back any portion of the moneys paid for duties
on the hemp included in the entry which should appear to have been
illegally exacted. Under the instructions of the court, the jury
returned their verdict in favor of the plaintiff, and the defendant
excepted to the refusal of the court to instruct the jury as
requested and to the instructions given. Judgment was deferred in
consequence of a motion for new trial and other proceedings, which
need not be noticed until the 17th day of December, 1860, and in
the meantime the defendant died, and the administratrix of his
estate was admitted to defend.
Three questions arise on this state of the case for the
consideration of the court. First, whether, under the second
section of the Act of the 3d of March, 1839, an action of assumpsit
on an implied promise can be maintained against a collector of the
customs to recover back duties exacted by him in his official
capacity after he had received the moneys and paid the same into
the Treasury of the United States, and if not, then secondly
whether the objection taken at the trial to the payment of the
duties was set forth in the protest with sufficient precision and
distinctness to bring the case within the provisions of the Act of
the 26th of February, 1845, authorizing such a suit in cases where
the protest is made in writing and sets forth distinctly and
specifically the grounds of objection to the payment. 5 Stat. at
Large 727. Thirdly, whether the legal rate of duty upon the hemp
included in the entry was the sum exacted by the collector, or only
$25 per ton as assumed by the plaintiff.
I. Recurring to the second section of the Act of the 3d of
March, 1839, it will be seen that it provides in effect that the
money paid to any collector of the customs after the passage of
that act for unascertained duties, or for duties paid under protest
against the rate of amount of duties charged, shall be placed to
the credit of the Treasury of the United States, to be kept and
disposed of as all other money paid for duties, and it
expressly
Page 67 U. S. 478
provides that such money
"shall not be held by the collector to await any ascertainment
of duties or the result of any litigation in relation to the rate
or amount of duty legally chargeable and collectable in any case
where money is so paid."
5 Stat. at Large 348.
Prior to the passage of that act, it had frequently been held
that an action of assumpsit would lie against a collector to
recover back duties illegally exacted by him of the importer, but
this Court held in
Cary v.
Curtis, 3 How. 236, that the provisions of that
section where the money had been paid into the Treasury of the
United States were a bar to any such action to recover back duties
paid subsequently to the passage of that act. Some of the judges
dissented on the occasion, but the concluding portion of the
opinion given by the Court rests, it is believed, upon the solid
foundations of reason and justice.
Indebitatus assumpsit
is founded upon what the law terms an implied promise on the part
of the defendant to pay what in good conscience he is bound to pay
to the plaintiff. Where the case shows that it is the duty of the
defendant to pay, the law imputes to him a promise to fulfill that
obligation. Such a promise, said the Court, is always charged in
the declaration, and must be so charged in order to maintain the
action. But the law never implies a promise to pay unless some duty
creates such an obligation, and more especially it never implies a
promise to do an act contrary to duty or contrary to law.
Collectors under the act referred to were required to pay all
moneys received for unascertained duties or for duties paid under
protest into the Treasury of the United States, and consequently
this Court held that in a case arising under that law, where that
duty had been performed by the collector, the law would not imply a
promise on his part to pay the same back to the importer, because
he was under no obligation to pay the money twice, and to have paid
the same back to the importer in the first place would have been
contrary to his official duty as prescribed by an act of Congress.
Applying that rule to the present case, it is quite obvious that
the answer to the first question presented must be in the negative.
Importers, however were not without remedy under that act, but
whenever
Page 67 U. S. 479
it was shown to the satisfaction of the Secretary of the
Treasury that more money had been paid to the collector for such
duties than the law required, it was made his duty to draw his
warrant upon the Treasurer to refund the over payment.
II. Congress, on the 26th of February, 1845, gave a different
construction to that provision, and provided in effect that "any
person or persons who have paid or may hereafter pay money" under
protest, as and for duties not authorized by law, to any collector
of the customs in order to obtain the goods or merchandize imported
by him, may maintain an action at law against such collector to
ascertain and try the legality and validity of such demand and
payment, but the same section also provides to the effect that no
such action shall
"be maintained against any collector to recover the amount of
duties so paid under protest unless the said protest was made in
writing . . . setting forth distinctly and specifically the grounds
of the objection of the payment thereof. When the duties in this
case were paid, the provision just recited was not in existence,
and it is insisted by the plaintiff that it cannot have a
retroactive effect so as to require the protest of the plaintiff to
conform to its terms; but if that be so, then it is clear that the
defendant must prevail in the suit, as the plaintiff has no right
of action what ever against the defendant unless it be by virtue of
that provision. His importation was made while the Act of the 3d of
March, 1839, was in operation, and when he paid the duties in
question, importers in such cases, according to the decision of
this Court, had no right of action whatever against the collector
of the customs. Those who had no right of action under the old law
cannot rightfully complain of the terms and conditions annexed to
the remedy given in the subsequent act of Congress. All such as
have claims falling within it have a right to avail themselves of
its provisions, because the right of action given is in its nature
a remedy against the government, but they must accept it as such
with its conditions."
Protests according to that law must be made in writing, and must
be signed by the claimant at or before the payment of the duties,
setting forth distinctly and specifically the grounds of the
Page 67 U. S. 480
objection to the payment as before stated. Parties who have made
such protests upon the payment of duties were placed upon the same
footing with those who should thereafter make such protests, and
all such were authorized to seek their remedy in an action at law
against the collector as the representative of the government, but
it cannot for a moment be admitted that a party can have the
benefit of an act of Congress unless he shows that his case is
within its provisions. No allusion whatever is made in the protest
to any such ground of objection to the payment of the duties as
that taken at the trial, nor any other except the general objection
already stated. Unless the grounds of objection to the payment of
the duties are distinctly and specifically set forth in the
protest, it is plain that it cannot be held to be sufficient
without a departure from the express requirement of the act of
Congress under which the suit was brought.
Iron in bars, as well as hemp in bundles, is included in the
entry, and yet the protest is "against the payment of the duty
charged in the entry" without any discrimination as to the
packages, and consequently applying as well to the iron as to the
hemp, and to the whole amount of the duties charged upon the entire
importation. No pretense is now made that the duty charged upon the
iron was illegal or excessive, and the plaintiff concedes that the
hemp was subject to a duty of $25 per ton. Irrespective of
authorities, therefore, it is impossible to hold that the protest
in this case is sufficiently distinct and specific to admit the
objection to the payment set up at the trial. Numerous decisions
have been made upon the subject, but there is not one of them that
affords the slightest support to the position that the protest in
this case constitutes a compliance with the requirement of the act
of Congress. On the contrary, every one of them affirms the rule
that the importer must at least indicate in his protest distinctly
and definitely the source or ground of his complaint and his design
to make it the foundation of a claim against the government.
Greeley's Adm. v.
Burgess, 18 How. 417;
Swanton v. Morton, 1
Cur.C.C. 294;
Warren v.
Page 67 U. S. 481
Peasler, 2 Cur.C.C. 235;
Thompson v. Maxwell,
2 Blatch.C.C. 391.
Persons importing merchandize are required to make their
protests distinct and specific, to apprise the collectors of the
customs of the nature of the objections made to the payment of the
duties before it is too late to remove them or to modify the
charge, and in order that the officers of the government may know
what they have to meet in case they decide to exact the duties,
notwithstanding the objection, and expose the government to the
risk of litigation. For these reasons, we are of the opinion that
the second question presented for the consideration of the court
must also be answered in the negative, and consequently the
plaintiff cannot recover in this case. Having come to that
conclusion it is unnecessary to consider the question arising upon
the merits. The judgment of the circuit court therefore is reversed
with costs, and the cause remanded, with instructions to issue a
new venire.
