The Daily bulletin. [volume] (Honolulu [Hawaii]) 1882-1895, 1888-04-06
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declaration.
3. The declaration fails to show
any right of action in the plaintiff as
Collector-General of Customs. The
Statute which imposes duties on
imported goods provides the means
for securing payment thereon, if
they are allowed to he landed and
placed in the charge of the Custom
House officials without payment
of duty, by a bond securing
such duty, and for action on such
bond. Sects. 518, $40, 522, Civil
Code.
There also is lien on dutiable
imported goods for payment of
duties which can be enforced by
proper Statutory proceedings IN
rem. In such case the remedy
pointed out by Statute is the only
remedy which can be pursued.
Oh. Pl. 161 n. (m).
This is not the case of an obliga-
ton to pay duties created by Statute
and resting upon the importer, in
which case an action or information
of debt lies against such importer in
the name of the King, or perhaps of
the Hawaiian Government.
This is an action of assumpsit
brought by the Collector General of
Customs without Statutory author
ity, and when other Statutory rene
dies are provided for proceedings
by such Collector to secure or OBJ
tain duties.
He was bold man, some one has
said, who first devised the action of
inde6itdtus dsS,mps,t. He would
be holder man who relies on the
fiction of an implied promise when
no statute or contract creates the
obligation, and when the mere with
drawal and acceptance of the goods
Gin this CASEY authorizes no such i'm
plication of legal liability.
The Statute creates no liability
for payment of duties by any and
every person who withdraws from
the Custom House and accepts i'm
ported goods without payment of
duties thereon, nor Is there any
such common law obligation or liza
bility, on which an implied promise
can rest, and as a necessary infer
ence, the Statute does not authorize
the Collector-General of Customs to
sue such person for such duties.
1t is fixed rule and principle
that no Government officer can
bring suit except by express Statu-
tory authority. The Collector-Gen-
eral of Customs may bring certain
suits as provided in the Statute, but
this is not such case.
The fact that he brings this suit
sin behalf of the Hawaiian Govern
ment' does not change the rule.
He has no authority so to do, and
the use of that form of words does
not make this suit by the Ha-
waiian Government. Renton vs..
Woolsey, 2 Pet. 81. U. S. VS.. Am.
Bell Tel. Co. 80 Fed. Rep. sol.
Atty. Gen. vs.. Ramford Chemical
w OIhS, IL. QUO.
On the whole there is no cause OF
action shown, and no authority ex-
lists for bringing this action. 1t is
not brought under Section 666 OF
the Civil Code for violation OF
some provision in the revenue laws,
no such violation is here charged.
The Acknowledgement, for the
| plaintiff, took up and answered the
points of Mr.. Hartwells argument.
He said that the counsel for the
defense had succeeded in establish
ing the fact, that this was personal
suit. but the statute provides that
the Collector-G eneral can bring suit
in his own name, against any one
for violation of the revenue laws.
If the revenue laws have been
violated it is the express duty of the
Collector-General to bring suit
either in assumpsit or for debt.
We do not declare on a bond, but
on a promise. We have set forth
that in consideration of the with.
drawal of certain liquors from the
Custom House, the defendant pro-
missed to pay the duties. We have
also stated that these goods were
imported into this kingdom, and
that such goods were subject to
duty.
In regard to the assertion of OPP
posite counsel that this suit should
be brought for debt, and not for as
sumpsit, we would say that duties
are not personal charge, and con,
sequently are not debt. (Her'
authorities were cited on the defini
ton of debt and assumpsit.) Ac
ton for debt can be brought agains
one who has incurred an obligation
and fails to meet tit, and assumpsi
can be brought against one who pro
misses to pay. Therefore he sub
mitted that the declaration was cor
rect, and the defendant was respon
sible for the payment of the duties
The Government should not b.
restricted or handicapped in tn
collection of its dues, any NOR
than private individual.
Our right of procedure is tn
same as in other countries, and i
the counsel can show any statut
that limits us in this action he is a
liberty to do so. But submit tina
we have right to bring the sui
l.. Il