# Cary v. Curtis

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United States Supreme Court
44 U.S. 236
Cary v. Curtis
THIS case came up from the Circuit Court of the United States for the southern district of New York, on a certificate of division in opinion between the judges thereof.
The 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 the 3d day of 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.
The cause was argued (in writing) by Sullivan, for the plaintiffs in error, and Nelson, attorney-general, for the defendant.
Sullivan, for plaintiffs.
This cause comes before the court on a certificate of a division from the Circuit Court of the United States for the southern district of New York.
The plaintiffs, as importers, had a perfect right to have and maintain this action against the defendant upon the facts as found in this cause. Elliott v. Swartwout, 10 Pet., 137.
The 2d section referred to in the certificate of division (9 Laws U.S., 1012) does not take away this right of action.
Because this right existed at common law, and the statute does not express a clear intent to do so. Bac. Abr. tit. Statute; 19 Vin. Abr., 524, § 125.
Because this right is not taken from the importer by necessary implication; but, on the contrary, the prospective language of this section shows, that Congress contemplated that actions against collectors would and should be brought in future, and sustained, as they had been in all cases of illegal exaction of duties, if paid under sufficient protest. This section provides, that money paid to a collector under protest shall not be held by him to await the result of any litigation in relation to the rate or amount of duty legally chargeable. This is all prospective, and relates to suits which may be brought in future; for there is not a word that limits the effect of the provision in this section to the past or present, but words in the future tense only are used. The section commences with the words, 'From and after the passage of this act,' and refers only to money thereafter to be received by collectors. The whole tenor of the section imports an intent not to take away the right of litigation for money paid under protest. But if it be urged, that the delegation of a new power to the Secretary of the Treasury to take cognizance of such claims for repayment of duties illegally exacted, imports, by necessary implication, that Congress intended to vest in him exclusively the right of ascertaining the facts in such cases, and of deciding the law thereon, the plaintiffs respectively ask the court to consider in what widely different language such an intent must needs have been expressed. There must have been an express prospective provision of some mode of proving the facts of each case, consistent with the constitutional guaranty of the right of trial by jury; for up to the passing of the act in question, the law had, by necessary implication, and by the known course of judicial proceedings in such cases, recognised this right as the right of all importers paying such duties under protest, and the means of an ulterior decision of all questions of law other than the opinion of the secretary would have been provided; whereas this law, by authorizing the Secretary to repay such illegally exacted duties when he should be satisfied they ought to be repaid, has left open to importers their known and constitutional right of recourse to the tribuanals of law when he should not be satisfied; so that the true construction of the provision giving him such a power may be carried into full effect, to the utmost inferrible intention from the terms of this section, quite consistently with leaving to all importers their remedy at law, as well as the privilege of applying to the Secretary at their option.
Because the purpose of this section appears to be two-fold, to wit: the security of public moneys received for duties under protest, and the repayment of them by the Secretary in all cases where he may be satisfied they ought to be repaid, without touching, varying, or altering, in any manner, the right of action by importers against the collector.
Because the collectors have always been required by law to pay over all moneys, without reference to protests. See 'An act to regulate the collection of duties on imports and tonnage,' Acts of 5th Congress, chap. 128, § 21, (3 Laws U.S., 157,) which provides, inter alia, that the 'collector shall at all times pay to the order of the officer who shall be authorized to direct the payment thereof, the whole of the moneys which they may respectively receive by virtue of this act; (such moneys as they are otherwise by this act directed to pay, only excepted;)' and it is by virtue, in part, of this very act that the collector demanded and received the money paid in this case.
The money being withdrawn from the collector's hands by law, it would seem unjust that he should be exposed to a judgment and execution thereon; but this section provides that it shall be the duty of the secretary to refund, and thus the collector is indemnified, which is equivalent to a right of retaining money paid under protest, as laid down in the case of Elliott v. Swartwout, 10 Pet., 154, where the court speak of the collector's protecting himself by retaining the money or claiming an indemnity; but if not strictly an indemnity, and it should be found in practice that the collector was not reimbursed, he would refrain from exacting duties in doubtful cases until he had the sanction of the Secretary, and his assurance that the money should be repaid upon the recovery of a judgment at law. And this court held, in the case of Tracy and Balestier v. Swartwout, 10 Pet., 98, 99, that the personal inconvenience to the collector is not to be considered.
The collector is liable for money illegally exacted and paid under protest, although the same may have been turned over to the government under the requirements of the acts of Congress.
In the case of Townson v. Wilson and others, 1 Campb., 396, Lord Ellenborough says, 'if any person gets money into his hands illegally, he cannot discharge himself by paying it over to another;' and this opinion is entitled to more consideration than nisi prius decisions usually are, because Lord Ellenborough states, that he had consulted the other judges and that they agreed with him.
In the case of Sadler v. Evans, or Lady Winsor's case, 4 Burr., 1986, it is held, that where notice is given, the agent may and ought to be sued, and cannot exonerate himself by payment. This case is cited and approved in Elliott v. Swartwout.
In the Commentaries of his Honor Judge Story, on Agency, p. 311, § 307, it is laid down, that 'where money is obtained from third persons, by public officers, illegally, but under color of office, it may be recovered back again from them if notice has been given by the party, at the time, to the officer, although the money has been paid over to the government.' In the case of Elliott v. Swartwout, 10 Pet., 158, it is held, that 'where money is illegally demanded and received by an agent, he cannot exonerate himself from personal responsibility by paying it over to his principal;' and in the case of Bend v. Hoyt, 13 Pet., 267, it is held that 'there is no doubt the collector is generally liable in an action to recover back an excess of duties paid to him, as collector, where the duties have been illegally demanded, and a protest of the illegality has been made at the time of payment, or notice then given that the party means to contest the claim, whether he has paid over the money to the government or not.'
If it be objected that the payments here referred to are voluntary, the answer is, that it is evident that the contrary is the fact. If the cases and the remarks in the Commentaries above referred to had been made concerning an ordinary agent, there might be ground for such an objection; but a collector is the defendant in each case, and government officers are specially referred to in the Commentaries, and if there had been any distinction between the kinds of payments, that distinction would have been referred to, for it was well known to the court, that collectors and other government officers were then compelled by law to pay over all money received by them; and, as has been previously shown, the section in question is no more compulsory than the laws in force at the time of those decisions, and, it follows, that they are controlling and decisive in this case.
The case of Greenway v. Hurd, 4 T. R., 553, 554, does not apply, because it appears to have been a voluntary payment, and is so decided to be in Elliott v. Swartwout.
[Of Mr. Nelson's argument in reply the reporter has no notes.]
Mr. Justice DANIEL delivered the opinion of the court.

## Notes

This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).
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