The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1885-1921, 1897-04-22

the Government founded upon any regulation of Executv
Department.; upon any contract express implied with
Government The plaintiffs contend in the first place, tina
this Act unconstitutional because the Constitution provide
Gin Art - that the right Of trial by jury in all in wh
has been heretofore used shall inviolabe Except
certain of which this one) and jury trials have bee
heretofore used" in of this kind under previous
Civ Code, Sec. S29 and Laws of 1885, Oh 81 ufcen
this contention Is that the Government cannot be
except by and if it be sued all
may do upon such and conditions pleaes
Plaintiffs contend in the second place. that Act 26 ia
is involved in the present case copied from the Unte
States o. s. Rev. Sts 1859 relating the
of Claims (Which corresponds Supreme
of this kind that the Supreme of United States
decided that claim of the kind question within
jurisdiction of the Court of Claims Nichols H. T. s.
Wall 1926 and that when the legislature of State adopts
Of another State adopts also the construction PLACED
such statute by the of the State from which
taken. We do understand the decisions of the United
States Supreme Court in the above cited to as far
plaintiffs contend. The based decision
grounds only of which related the jurisdiction of the
Court of Claims and that point the based its decision,
the ground that the provisions of the statute relating
the Court of Claims not broad enough include of
the kind question: but that Congress by other legislation
(which has been adopted by the Hawaiian Legature)
showed intention that such claims should be included
within the jurisdiction of the Court of Claims.
The other relied by the Government is Sec 524
of the Civil Code, which reads follows: A paid for
unasceaned duties for duties paid under protest against
the of duties charged shall be kept and disposed
of other paid for duties and shall not be held by the
collector await the of Duties the result of
litigation relation to the amount of duty legally
chargeabe and coectabe where pad
but whenever shall be shown the satisfaction of the Minister
OF Finance that such money has been paid
collector than the requires he shall refund the
of moneys the treasury, otherwise appropriately
The argument that the collector is the agent of the
Minister of Finance and obliged by this section of the code
him all moneys collected duties and
quenty that he be under obligation himself refund
any such moneys though illegally exaced the importers
and that claim for such moneys therefore be pursued if
at ALL against the Government In reply to this argument the
plaintiffs that this of the code merely regua
ton between the COectOGenera and the Minister of Finance
and way inerferes with mpa the rights of third
parties 1t that this statute also taken from the
United States statutes 6 Sts Large, 34s) There also
Supreme of the United States constituting
it, CARY a. Curtis 236 cited approval Nichols
T. s.. supra In lengthy decision in which the
sde the argument now relied by plaintiffs upon the point
question: well nearly all the arguments made in this
the conclusion reached that the question prevented
against the collector in of this kind The reasoning
follows: Regarding the collector nagent
Illegally received by him duties paid without protest
be paid by him his principal and there obligation
his refund the TO the party paying them but
the moneys paid under protest it the duty of the col
lecor the absence of statute to the contrary refund
them, and he may refund them retain them await the
result of and thus have the of rembursing himself
Judgment should be rendered him; such suit
would be law action upon promise implied from the
Gutv TO refund what is Illegally exacted Elliott SlcatCom
1871 But the Act of Congress- corresponding Section
524 of Civil Code, by requiring the collector to the
moneys received his SUPERIOR removed the sole ground
which the promise implied namely, the duty refund
for he could refund he obliged to the money over
his superior No law action therefore, could
brought against the collector An action could be
brought II at ALL against the Government only ana then nec
sarily only by permission of the Government and in such
and in such it should prescribe Cary Curtis
supra In of this decision Congress altered the
permit suits against the collector, Notwithstanding
his obligation pay the moneys collected his
Sts at Large, p. $40 note and 727; 4rRSOn UuphY
100 T. s 23S. But the suits permitted by this Act against the
collector were regarded not as common law SUITS nut as "cuo
the Government permitted be brought against the
collector of favor Nichols L. s. supra After
the again altered taking the right
collector (26 SIS Large p I'D and providing other
methods the determination of such claims Oh 49, 1881
The decision in cary Curtis conclusive against the jur
of
the plaintiffs that when adopts the of another
also adopts construction put upon by the
of the The that this kind have been
brought against collector that other officers of the
been made the nominal defendants the past
somewhat similar sufficient ground for authorizing
suits TO brought Indeed uniform
this respect in the In the suits have