The Honolulu republican. [volume] (Honolulu, T.H.) 1900-1902, 1901-08-11

IRON @EW VflE2z&- O. Az o<Ger Goa
cezedly duzss<se port. 10 New york.
there Eu1ld he 10 method af testing
his right 70 make s1eh seszare. 4 Is
hardly pcssfEss that TIE qE1er c0zI6
Se placed In thls position Bzt ne
are rot withoat authority upoz this
point
TIE case Of EIlIckt = Swarrsous.
&c Pet l27.1 vas ~ action q A.
s1upxit against the collector Of the
port of New York 70 reeover certain
tutiez upon goods alleged 20 have
besn improperly classified Il Vas
held that as the payment was purely
voluntary. By q mutual mistake q
lz~. no action would lie 10 recover
them back. although Il would hare
been different IL they had been paid
under protest Said Mr justice
Thompson: Here. then. Is the true
Distinction when tie money IS paid
voluntarily and by mistake 20 an
zgeut. and he has paid Il over 70 his
principal. he cannot be made person
ally responsible: but. II before paying
Il over, he is appraised Of the mis-
take. and required not TO pay il over.
be Is personally Liable II the pay
ment OF the money be accompanied
By 3 notice TO the collector that the
duties charged are too high. and that
the person paying intends 10 sue TO
recover back the amount enormously
paid. II was held that such action
must lie unless the broad proposf-
ton can be maintained, that no ac-
ton viii lie against collector 10 re-
cover back an excess OF duties paid
him. but that recourse must be had 10
the Government for redress. The
case recognized the fact that, with
respect 10 money paid under a mis-
take of law. the collector stood in
the position OF an ordinary agent and
could be made personally liable in
case the money were paid under pro-
test.
This decision was made in 1885.
Apparently in consequence of It an
act was passed in 1899 requiring mo-
neys collected for duties to be de-
posted TO the credit of the Treasurer
of the United States; and it was made
the duty OF t..e Secretary OF the Urea
sury TO draw his warrant upon the
Treasurer in case he found more mo
ney had been paid to the collector
than the law required. Ii was held
by q majority of this court in Cary
V. Curtis, g How. 1861 that this act
precluded an action of assumpsit for
money had and received against the
collector for duties received by him.
and that the act Of 1883 furnished
the sole remedy. It was said of that
case in Arnson V. Murphy, Cos U. S.
23S, 240,): Congress, being in ses-
sion at the time that the decision was
announced. passed the explanatory
act of February &c, 1916, which. by
legislative construction of the act of
1899. restored to the claimant his
right of action against the collector.
but required the protest to be made
In writing at the time of payment of
the duties alleged to have been lille
gally exacted. and took from the Sec
rotary of the Treasury the authority
to refund conferred by the act of
1889. 6 Stat 349, 1919 This act
Of 1916 was in force. as was decided
ia Barney v. watson, (S2 u s. 449.l
until repealed by implication by act
of June 30. 1864 (13 Stat. 14,) car
ried into the Revised Statutes as sec
lions 1881 and BOIL. In the same case
OF Arnson v Murphy. (109 T. S. 1881
it was decided that the common law
right of action against the collector to
recover back duties illegally collected
was taken away by statute and rem
edy given based upon these sections.
which was exclusive. The decision in
Elliott V. Swartwout was recognized.
but so far as respected customs
cases O. e.. classification cases) was
held to be superseded by the statutes.
So in Schoenfeld V. Hendricks. 152
u. S. 691.) il was held that an action
could not be maintained against the
collector. either at common law or
under the statutes. TO recover duties |
alleged to have been exacted. in 1892, |
upon an importation of merchandise, |
the remedy given through the Board |
of General Appraisers being exclusive. !
The criticism TO be made upon the |
applicability of these cases is. that |
they dealt only with imported mer-
chandise and with the duties collect
ed thereon. and have no reference |
whatever to exactions made by a col |
lector. under color of the revenue /
laws, upon goods which have never
been imported at all With respect |
to these the collector stands as if. |
under color of his office, he had /
seized ship or its equipment. or any
other article not comprehended with /
In the scope of the tariff laws. Had
The sugars involved In this case been
imported. that is. brought |
INTO New York from confessedIy
foreign country. and the question had
arisen whether they were dutiable.
Or belonged to the free list. the case
would have fallen within the Customs
Administrative Act. since it would
have turned upon a question Of elas-
sifcatIon
The fact that the collector may
have deposited the money in the
Treasury is no bar to a judgment
against him. since r. s. sec. esq pro-
rides that. In case Of a recovery OF
my money exacted by him and paid
INTO the Treasury. if the court GER
lies that there was probable cause
or the set done. no execution shall
ssue against him. but the amount OF
he Judgment shall be paid out Of the
roper appropriation from the Trea-