Daily American organ., 1856-04-25
WHOLE NO. 456.
Court OF Claims.
ABSTRACT OF OPINIONS DELIVERED.
PREPARED BIZ JOHN G. DKvrRKUx AND n. rHoxP-
SON, coUKsELLoRs AT LAW.

Il
PREPARED Br JOHN G. DEvFRKUx AND NJ rHoxP-
| SON, coUEsELLoRs AT LAW.
| o. Where under section Of act of March 8,
1889, an importer, in a case Of unascertained du-
ties, or of duties paid under proeest paid to the
collector more money than he waS by Law required
to pay, but could not show TO As satistaction of
the Secretary of the Treasury that he had done
so, he was, before the institution Of this court,
without any enforceable remedy.-B.
90. The action of the Secretary Of the Treasu-
ry, under section 2 Of the act of March 8, 1889,
not being judicial, but merely administrative, tho
implied contract Of the United States to refund to
the importer what had been taken or detained
from him without authority of law, although he
could not show 20 the satisfaction of the Secretary
| that he had paid more than he was by law requir-
ed to pay, and was without an enforceable remedy,
still remained unsatisfed and undischarged.
| 96. Under the act of March 8, 1889, section 2,
still 30 far in force II competent for the Sec
retary OF the Treasury, If 1t shown TO his sat
isfaction that more money had been paid to tho
collector than the law required to be paid to take
the measures presented by that act to have IL
funded TO the importer.-Ib.
81. The act Of March 8, 1889, did not vest the
Secretary of the Treasury with the power Of de-
Gliding upon the rights of claimants for return of
duties, except to the extent that he might be re-
98. The act Of March 8, 1889, made IL cond-
ton precedent to the importers right to the Sec
retary's warrant upon the Treasury for over-pay
ments, that he should satisfy the Secretary that
his claim belonged to one Of the classes mentioned
in the act and was well founded.-Ib
80. 1t was not designed that the importer, un-
der the act Of March 3, 1885, should obtain relief
from the Secretary of the Treasury, ministerial
officer unless his case shopn to be one on
which such officer could act with entire safety to
| the public interests.-I6.
100 If the importer failed to show such case,
then he failed to obtain the benefit of the statutory
remedy; but 1t was not designed that his rights
should be otherwise afected.-I6.
l0l. If the importer failed to show such case,
the implied contract of the United States in
Of unascertained duties to refund the overpsy-
ment, would still continue In full vigor, and 10
seems the importer has remedy by appeal to this
court--Ib.
lO2 The decision of the Secretary Of the. Treas
ury under the act of March s, 1889, affected mere
ly his own official action, and nothing more.--Ib
l03. The explanatory act of February 26, l845,
Is Stat at Large, 727, restored sub modo the right
Of action against collector In cases of duties paid
under protest.--I6.
1o4. The explanatory act of February 2s, 1916,
is silent upon the subject of unascertained duties,
and is therefore wholly inapplcable to them, and
the rights of an importer in reference to unascer-
were before the passage Of that act.-Ib.
lO5 The act to refund excess of duties, &c., OF
August 8, ls46, sec. Q, has no application to un-
ascertained duties; 1t in terms applies only TO du
ties illegally exacted.-Ib.
IO8. !" Unascertained duties,' in the strict legal
sense Of the terms employed in the act Of August
s, 1S46 are not illegally exacted there can De no
illegally as respects them. except in the detention
of over-payment after the true amount OF duties
has hoan laraly aacertainod.-Ib.
iO7. Unascertained duties" are demanded and
paid in strict conformity to law the very terms OF
the act imply that duties are, to some extent i'm
posed and payable in the particular case, but that
the true amount Is unknown and unascertained at
the time of payment.-Ib.
1oe Payment of a unascertained duties' ID made
under an implied contract on the part OF the uni
ted States that the excess, If any, beyond the
amount of duties actually imposed by law, shall be
refunded to the importer.-Ib.
lO9. Where, during the years 1847-8-9-60,
certain parties imported brandies and other IL
auors in casks, and paid duties thereon, not only
upon the value of the quantity ascertained by
gauger's return, but also upon leakage during the
voyage Of importation, though not occurring from
accident at sea that is, paid the duties as per
invoice and not by gauge, held 1t was, in It's ma
ture case of unascertained duties. 10.
Iio. The regulation of the Treasury DEPART
ment, by which duties on imported liquors were
required to be computed on the invoice quantity,
was in conflict with law and invalid.-Ib.
III. Although the Secretary Of the Treasury,
in the exercise of his discretion, may adopt ne
cessary forms and modes of giving effect to the
law vet neither he nor those who act under him
can dispense with or alter any of its provisions.
ID
ll2. Importers, in cases of doubt, are entitled
to have their rights settled by the judicial expo
sition of the laws rather than by the views of
the Department.-Ib.
l13. AS between officers Of the customs and
the importers, it is well settled that the legality
of all the doings of the former may be revised
in the judicial tribunals.-Ib.
Ia. Where duties are, in their nature, under
the acts of Congress, unascertaincd at the time
of their payment, no regulation OF the treasury
Department can deprive the importer OF the right
vested in him by law, 80 to consider and treat
them.--Ib.
1lb. Under An act reducing the duty on inn
norts and for other purposes OF July 80, l846,
the duty on "brandy and other spirits" is inn
posed, and to be computed, not upon the guam
tity which may have been purchased abroad, put
upon the quantity which actually arSyes IN TINS
country.-Ib. 90
1aAs duties were exacted and paid upon the
Leakage during the voyage to this country AZ I'M
royf>9 iouors: held that they were paid upon
i;ouors not actually imported, and consequently
that they were not imposed by law.-I6.
1T. In the collection Of revenue on brandy
and other spirits, the quantity actually imported
Is TO be ascertained by the gauger's return, and
not by the invoice.-Ib.
Ils. The measurement by gauge is, under the
acts of Congress, and according to the usage OF
the United States for more than bali century,
the proper LEGAL method for ascertaining the qd''
tify Of liquors imported-Ib.
Iro BE coSTNUkD.]
A Railway Romance.