Evening star., 1901-08-30
THE De LIMA CLAIM
Controller Tracewell Overrules the
Auditors Decision.
MONEY DUE TO Be PAID 1T ONCE
Action of the United States Su-
preme Court Reviewed.
THE REASONING GIVEN

Mr.. r. J. TraceweIl. controller Of the
treasury. today overruled decision Of the
auditor for the Treasury Department in
the case of D. A. De Lima &. Co. of New
York, and ordered that this firm Of i'm
porters be paid at once the money due
them for collection OF duties on goods
from Porto Rico. The decision reviews
the action of the Supreme Court in the
Porto Rican case. De Lima & Co. being the
plaintiffs in that celebrated case. The po-
sition taken by the auditor was that as
De Lima & Co. had secured judgment their
claim could not be paid except by appro-
priation by Congress. The decision of Mr..
Tracewell Is as follows:
'"The auditor for the Treasury Depart
ment on the 9Th instant certified that he
had examined and settled an account be-
tween the United States and D. A. De
Lima & Co., wherein he found the sum or
$14 4,597.54 due from the United States to
said De Lima & Co., being the amount of
duties exacted in excess, with costs, which
sum was held by the auditor payable out
of the appropriation for repayment of i'm
porters. excess of deposits (customs), and
that said amount be reported to Congress
under section 2 of the deficiency appropria-
tion act of July Z, 1884, and that when a
warrant Issues in payment OF said sum
that 1t issue In the name of George R Bid
York, who is to be charged with said
amount when an appropriation shall have
been made therefor by Congress.
THE effect Of this action of the auditor.
Of the judgment referred to as legal
claim, to be appropriated for by Congress
in its discretion, and is not the certifca-
tion of said amount for payment by the
% tIa
Facts in the Case.
From this action Of the auditor De
Lima & Co., on the 17th instant, appealed
to this office for revision. The facts in the
case are: The firm of De Lima & Co. were
consignees of sugars shipped from the
Island of Porto Rico. Upon the arrival of
such sugars at the port of New York the
collector of customs at such port, George
r. Bidwell, claimed and demanded the pay
ment Of duties thereon as If they had been
shipped from foreign country. The du-
ties so demanded were paid by De Lima &
Co., under protest. Suit was brought at
common law In the United States circuit
court for the southern district of New York
by said De Lima & Co. against the said
George r. Bidwell. in his individual ca
pacity, to recover back from him the
amount so paid, with interest.
Such proceedings were had In said case
as resulted in holding by the Supreme
Court of the United States QS2 U. s., page
u, that the sugars aforesaid were not SUBJ
ject to the payment of duties, and that De
Lima & Co. were entitled to recover back
the amount so paid, with interest and costs,
from the said George r. Bidwell. That
judgment was thereafter entered by the
circuit court for the southern district of
New York in accordance with this decision
of the Supreme Court and it's mandate to
said circuit court, under date of June 3,
1901, ordering and adjudging that the firm
nfn n na frao p n nf
r. Bidwell the sum of s14 5S754, and that
the plaintiffs have execution therefor
against said BidwelL
"A certificate of probable cause under
section $50, Revised Statutes, was granted
to the defendant. The effect Of this certifi-
cate is that no execution can issue on said
Judgment against Bidwell, the collector.
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 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 ex-
acted by or paid to him and by him paid
into the treasury, in the performance of
his official duty, and the court certifles
that there was probable cause for the act
done by the collector or other officer, or
that he acted under the directions Of the
Secretary of the Treasury, or other proper
officer of the government no execution
shall issue against such collector 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 the statutes was bodily
taken from the act Of March 3, 1863
1.-The judgment of the circuit court for
the southern district of New York, entered
in pursuance of the mandate of the Su-
preme Court as above recited, is the final
Judgment provided for by this act Of Con-
gress.
This judgment was for the sum of $14-
597. "a, which includes the sum Of 81 500 10
interest, being the interest on the amount
paid in excess, to wit, $13, 1886, to date of
rendition of judgment, and also the sums
of $6965 costs in the Supreme Court and
$21. 40 costs in the circuit court
The United States Liable.
cit is apparent, from a reading. of said
section 9S9, Revised Statutes, that when
certificate of probable cause has been is
sued, that the United States becomes liable
for and agrees to pay the amount SO re-
covered against the collector. The interest
and costs included in the judgment is
part of the amount SO recovered. Hence
the United States has agreed to pay the in
terest and costs included in the judgment.
t'If there Is an available appropriation
out of which to pay this judgment, the
auditor should have certified 1t for pay
ment, and not certified it as legal claim
to be paid when Congress shall have made
an appropriation providing for it's payment.