The evening times. [volume] (Washington, D.C.) 1895-1902, 1901-08-30

NNA va tlAf -tlNl- AltllA tflall4L4lA Is tlAl
my comprehension To say the least. this
| is an innovation. novel in its conception
and not very well calculated 10 secure a
/ payment 10 a judgment creditor"
1t was held 10y me in the case Of a. :.
/ LasceIlss d. Co. decided on the Sth Of
JJIy. 1871. for "a refund Of moneys paid to
/ the Collector for the Port of New York
| ON certain sugars imported into the Uni
/ ts-- States at the port Of New York from
J Porto Rico between the date Of the tax
! ing effect OF the Treaty Of Paris and the
( going into effect Of the Foraker act, COW
/ ering the same dates as the duties paid in
I this case, and for which Judgment was
! rendered as herein set out that said
! laSceljcs * Co. were entitled TO a refund
/ of such duties The only difference be
/ tween the case under consideration and
/ that case is that in the former case Las
/ eell's * Co had not recovered Judgment
! against the United States or the coUoc-
/ tor Of customs for the duties so wrong
/ fully eNacted and paid ny them under
/ protest
1T would seem TO the ordinary mind
/ that it would bo 4 -raveSty on Justice 90
/ refund duties illegally exacted where 4
/ Judgment had not been obtained. and to
/ refuse a refund under exactly similar
/ conditions, where the persons seeking the
/ refund had been diligent and had their
| rights ascertained and settled I'm the high
| est court in the land. II there is an APP
/ pTopria ton available 60 pay duties iIle-
/ SaIly eNacted. then it follows * rel ne
/ cesSitatc. that the ascertainment Of the
/ fact of the illegal exaction Of such duties
and the asccrtainmcnt Of their amount by
I the Judgment Of court. the only tri-
/ bunal that can finally and ounciusiveIy
settle these questions. would not and
/ could not have the effect 70 nulify the
appropriation
1t is perfectly clear TO my mind that
! when section $50. Revised Statutes. and
| the act of 1873 is considered with refer
| ence TO section $3.50. Revised Statutes. pro-
yiding for the refund to importers of the
| excess Of deposits for unascertained du-
| ties. or other moneys paid under protest
| that said section 1859 carries an appro-
pr.ation available to pay judgments OF
the character Of the one under consider
alton ] will not repeat my argument in
the LascelIes case 10 show that section
3tN9 is the appropriation available to pay
! the class Of refunds covered by that case
and the case under consideration. but re-
/ fer any reader who may be curious on
this point 10 that case. White section
| 36Sy Revised Statutes, was not specifcaI-
ly mentioned IN the LasCeIIes case, yet il
was therein held that the appropriation
carried in the customs administrative act
Of 1880 was not available TO make refund
in such cases. hence section 2-Sg being the
only other appropriation must necessarily
have been meant as the appropriation out
of which such refunds could be made.
An investigation Of the subject Of these
refunds has brought 10 light "a most Gu
rious condition of affairs. both in the
Treasury and in the various acts Of Con
gress on the subject. Ii appears that
commencing with June "A. 1873. Congress
began series Of appropriations Of which
this act, without setting them all out. is
a fair sample as 20 language and purpose:
For repayment 20 importers the excess
Of deposits for unascertained duties. or
duties or other moneys paid under pro-
test, including interest and costs in jgdg-
ment cases, $4,000; Provided, that no por-
tion Of this appropriation shall be- expend-
ed for the payment OF Gains known rs
the Charges and Commission Cases.
This was followed by the act OF March
g. 1883. reappropTiating the unexpended
balance OF the $4,000 appropriated by the
act Of june i. 1875; by the act Of June 15.
$50, appropriatiug S3140l0 for l'ke purpos-
Is: by the act Of August g. 1852, appro-
priating $4,000 for like purposes. by
the act Of August T. 1856. appro-
priating 10000 for ike purposes, by the
act of February I. ISIS appropriatiug
$4,000 for like purposes. This special leg
islauon on the subject ceased with this
last act.
'-Th- sum Of all these appropriations
was exhausted on October I6, 1889.
Before the date Of these special ap-
rtrnr.rr g.. .rfIvg nd after fheg~ -vF4rs-5.,
IT is presumed the Treasury paid this
class Of refunds out Of the general in
definite appropriation contained in sec
riou 36S9 Revised Statutes
Congress was induced TO make these
special appropriations. no doubt. upon the
erroIeOUs and faIaclous belief entertain
ed by the accounting officers of the
Treasury. that Notwithstanding the ap-
preparation contained IN section 1850, Re
vissd Statutes, was broad enough 20 cover
such a refund before Judgment. il was
not broad enough TO cover the same after
judgment.
In other words, an appropriation had
been made by Congress to effect a par
uculsr object, but because the Treasury
officials wronrfuIIy refused 10 carry out
the object Of Congress and drove the cIai-
mant into court and had il determined
that the Treasury officials had thus acted
wrougfuNy IN refusing 10 effect the par
ticular object for which provision had
been made by Congress. that therefore. I
the appropriation ceased to be available /
to pay the Judgment 50 rendered 10y the
court
81 cannot bring myself 10 this view
point. Neither can ] understand why an
exception should Doe made in this case, and I
certify II Co Congress as q legal claim for
an appropriation instead Of paying il
when tho Treasury has been uniformly. }
with the exception Of the use of the spe-
ciaI appropriations set out. paying claims |
Of n like character out % the general in /
definite appropriation contained in section |
2GS9. Revised Statutes
Il conclude. therefore. that the Auditor
erred IN settling this claim by ordering il
certified as a legal claim FOR appropriG-
tion 10y COngresr. ana that he erred IN
ordering the warrant for its payment. i
when issued. TO be ISSUED iu~Ghe name Of !
George r. EidweH the judgment defend |
ant The Auditor will. therefore, state an /
account in favor Of D. A. De Lima d Co.
for the sum of 81 ,59I. 81. being the amount /
o. the judgment and certify the same 10 !
the division OF bookkeeping and warrants. I
payable out of the general indefinite ap-
preparation contained in ecction 1858, Re |
vised Statutes. and that n warrant is |
sue in the name Of the ju eut plaintiffs, |
II. A. DeIima a CO.
THE NEW YORK KvDGESHIP.