The evening times. [volume] (Washington, D.C.) 1895-1902, 1901-08-30
TO PAY The De LIMA CLAIM
Action of the Auditor Of the Treas
Ury Department Reversed.
Comptroller TracevcII Holds That
m Appropriation by Congress L.
Not Necessary to Refund DUty
Paid On Porto Ricnn Sugar

I NpAAA thAA bAASE ENRf-As ell AAeANN Z nat
m Appropriation by Congress L.
/ Not Necessary to Refund Duty
Paid On Porto Ricnn Sugar.
| Robert j. Traceweu, the Comptroller Of
the Treasury. in lengthy opinion today
overruIed the action of the auditor Of that
| department ill reference to the delay in
/ the payment Of the claim Of y. A. DeLima
| d Co. who. according to the decision of
| the Supreme Court i'm the Porto Bicdu
/ sugar eases are entitled to SlA5gl5., COW
ormg the sum paid into the Treasury as
duty on Porto Rican sugar by that firm
/ between the time that island became Unit
cd States territory and the passage OF the
Foraker act.
The Comptroller also held that the claim
of DeLima q Co. should De paid out Of
what is known as the general indefinite
appropriation, without any reference TO
/ Congress, as conteuded 10y the Auditor Of
the Treasury Department
The following is the text of Mr.. Trace
wells opinion:
| THE Auditor for the Treasury Depart
ment. on the 5th instant, certified that he
| had examined and settled an account be-
tween the United States and H.. A. De
| Lima d Co, wherein nc found the sum of
/ 4.5gI-54 due from the United States TO
| said De Lima d Co. being the amount Of
| a Judgment OF "a United States court for
duties ezact,d in excess, with costs,
which sum was held by the auditor pay
able out of the appropriation Tor Repay
ment to importers, excess Of deposits
/ CCustoms) and that said amount be re
ported to Congress under section OF the
Deficiency Appropriation act Of July :.
| 1854 and that when a warrant issues in
payment Of said sum. that it issue In the
name of George r. BidweH, Collector Of
Customs, district OF New York. who is
to be charged with said amount when an
appropriation shall have been made
therefor 10y Congress.
The effect Of this action Of the auditor
as above described is 20 find the amount
Of the Judgment referred TO as a legal
claim 20 be appropriated for by Congress
In its discretion. and is not the CcrJihca-
tion Of said amount for payment by the
proper authorities of the Treasury
From this action Of the Auditor. De
Lima d Co. on tho 18th instant. appealed
to this office for revision The facts in
the case are:
The firm Of De Lima & Co were con
| siguees Of sugars shipped from the Island
or Porto Rico Upon the arrival Of such
sugars at the port Of New YORK the Col
lcctor Of Customs al such port. George r.
EiIwcn. claimed and demanded the pay
ment Of duties thereon as if they had
been shipped from a foreign country
The duties so demanded were paid by DE
z inn. &
brought al common law in the United
States Circuit Court for the Southern
District Of New York by said DE Lima 0
Co. against the said George r. Bidw'u
in his individual capacity, 20 recover back
from him the amount so paid, with inter
est.
such proceedings were had in said
case as resulted In "A holding by the Su-
premc Court Of the United States that the
sugars aforesaid were not subject To the
payment Of duties. and that De Lima g.
Co were entitled 10 recover back the
amount so paid, with interest and costs,
from the said George r. Bidweu. That
judgment was thereafter entered by the
Circuit Court FOR the Southern District Of
New York in accordance with this deci-
sion Of the Supreme Court and its man
date to said Circuit Court, under date of
June S, l91. ordering and adjudging that
the firm OF D A De Lima & Co, recover
Of George r BidweiI the sum Of SIf5e7.5f.
and that the plaintiffs have execution
therefor against said Bidweu
"A certificate of probable cause under
section gSg, Revised Statutes, was granted
TO the defendant. The effect OF this GER
tdcate is that no execution can issue on
said judgment against BiJweH. the col
lectOr, but the amount so recovered shall
upon final judgment. be provided for and
paid out Of the proper appropriation from
the Treasury.
Section $50. Revised Statutes. reads:
When a recovery is had in any suit or
proceeding against a collector or other
officer Of the revenue for any act done by
him or for the recovery Of any money
exacted 10y OF paid 10 him and 10y him
paid into the Treasury, IN the perform
ance Of his official duty, and the court
certifies that there was probable cause for
the act done by the collector or other Of
ficer, or that h acted under the direc-
tious Of the Secretary Of the Treasury.
CT other proper officer Of the Government,
no execution shall issue against such cCl-
lector or other officer. but the amount so
recovered shall, upon final judgment, be
provided fOr and paid out OF the proper
appropriation from the Treasury.
This section Of tho statutes was bodily
taken from the act Of March o. 1863. The
Judgment Of the Circuit Court for The
Southern district OF New York, entered
iu pursuance Of the mandate of the SJ-
urcmc Court as above rccitcd is the 1ral
Judgment provided for by this act OF Con
gress-
This judgment was for the sum of Stf-
5g75 which includes the sum OF Sl.5ua-I9
interest. being the interest on the amount
paid IN excess. 70 wit, $l5145.55, TO date of
rendition OF Judgment, and also the sums
Of Sfqt5 costs in the Supreme Court and
81 80 costs in the Circuit Court.
1T is apparent from n reading Of said
section $50 Revised Statutes, that when
a certificate Of probable cause has been
issued that the United States becomes
liable for and agrees TO pay the amount
go recovered against the collector. The
interest and t0ets included IN the jUdg-
mcnt IS a part OF the amount so recover
ed Hence the United States has agreed
90 paw the interest and costs included ga
the Judgment
"If there Is an available appropriation
out OF which TO pay this Judgment the
Auditor should have certified IL for pay
ment and not certified IL as "a legal claim
20 BE- paid when Congress shall have made
an appropriation providing for its pay
mcnt.
Before advertins TO the question 0f
the availability Of any existing appr0prIa-