IN BE CHASE.
Court, D. Massachusetts. May 19, 1899.> No. 8,566.
GENERAL APPlLUSBU' DBCISION';'" b'TBBBllT
On a review in the circuit court of a decillion of the board of jl;eneral appraisers, underAct Congo June JO. (26 St. p. 181.> no interest or costs be recovered against the United States in tile absenco of special provision.
At Law. Petition by L. C. Chase & Co. for a review of the decision of the board of general appraisers as to the classification of common goat hair. The board's decision was reversed, and the importers held entitled to aretum of the excess of duties paid. 48 Fed. Rep. 630. The question now is. as to the liability of the United States for interest and costs. The two opinions by the attorney general, referred to in the opinioD below as being decisive of this question, are as follows: DEPARTMENT 01' Jusno& WASmNGTON, D. C·· August 7, 1891. f'h. 8etJi6t41'11 ofth, TretJBu1'1/-Sm: By your letter of July 81st you submit for opinion "whether or Dot any authority now exists in law for the payment of· interest upon refunds made in conformity with obtained hI cases 'of appeal under section 15 of the act of June 10. 1890. (26 St. p. 131,) from decisions of the board of United States general appraisers." Section 15 provides that If the owner, importer. assignee, or agent of imported merchandiseiil dissatisfied with the decision of the board of general appraisers, he may, by complying with certain conditions in the section prescribed, have " review of such decision in the nature of an appeal In the cirCUit court. "said ';)urt to,.bear and determine the questions of law and fact Involved in such decision. respecting the classification of such mercbandise, and the rate of duty imposed thereon under such classification; and the decision of such court be final, and the proper collector or person acting as such shall liquidate the entry accordingly. II unless a further appeal and trial shall be bad in the supremecourt,as therein provided. It further provides that "all final judgments, wbenin favor of the importer, shall be satisfied and paid by the secretary of the treasury from the permanent, indefinite appropriation provided for; in Sel'tioD 23 (24) of this act. " I t will be seen fl'om the foregoing that the statute is silent in relation to .interest. The proceeding is in the natuu of a suit againlit the United States. (See opinion of this date to the secretary of.the treasury in reference to fees of district attorneys, under this section.) "The rule.is that interest is not allowable on claims against the government. Tile exceptions to this rule are found only in cases where thedamands are made under special contracts or special laws. expressly or by very clear implication providing for the payment of interest. 7 Op. AUys. Goo. 523; 9 Op. Attys. Gen. 57. 'An obligation to pay it,' observes Attorney General Black in the opinion last cited, · is not to be implied against the govemment as it is against a private party from the mere fact that the principal was detained from the creditor after his right to receive it had accrued.'" 17 Opt A.ttys.Gen. 31B. This pOllition.finds abundant support in the decisiona pf the supreme court. In Tillson V. U. 8.,100 U. S. 43, it is said: however, would have been recoverable against a citizen.jf the payments we.re delayed; but with the government th.e rule is for. in addition to the practice which has prevailed in the departments of 110t
allowing interest on claims presented, except It Is in some way specially provided for, the statute under which the court of claims is organized expressly declares that no Interest shan be allowed upon any claim up to the time of rendition of judgment therein in the court of claims, unles!! upon a contract expressly stipulatingfor·lnterest." So in U. B. v. Bhermah, 98 U. S. 565, it is said: that time (certificate.of probable cause) the government is obligation, apq tbe secretary of the treasury is not at liberty to pay. When theobllgation al;ises, it is an obligation to pay the amount recovered; that is. the amount for which jUdgment has been given. The act of congress Ilaylfuot a word about Interest. Judgments, it is true, are by the law of South Carolina, as well' as by federal legislation, declared to bear interest. Such legislation, however, has no application to the ·govern n:'ent. And ·the interest is no part of the. amount recovered. It accrues only after the recov· had. Moreover, whenever interest is allowed. either by statute ot'!>y c.Qlnmon law.e:ll;Qept in cases Where there has been a contract to pay it Is allowed. for delay or default of the debtor. or default calln!>t, be attributed tO"the government. Jt is presumed to,1?ealways ready (0 psy,lvhat it owes.'" See Harvey v. U. B., 113 U. 243,& SQP. Ct. Rep. 461>. '80; In U. B. v.Bayard, 127 U. S. 251, 8 Sup. Ct. Rep. 1156. this docttliH"lli:'ferCibly reiterated. The court says: "The case therefore falls within the well-settled principle that the United States are not, .lia\:>le to pay inter. est on claims against in the absence of express statutory provision to that effect. It has been. established as a general rule in the practice of the govei'rlm'eJ1t, that interetlt.ls'not allowed on claims against it. whether such claims ,originate in contract or in tort. or whether they aNsem the ordinary businellll'o!' administration or under private acts of relief; passed by congress on:speoiaLappHcation.The only recognized exceptions the .gov. to pay, interest, and where interest· is given expressly by an: 'Congress, either by,the name of · interest' or by that of ·damages.' .. ¥our;quesliion is therefOl'e answered in the negative. Very, respectfully, 'W. H. H. MILLER, Attorney General. D,.EJ:>.ARTMENT or JUSTICE. WASHINGTON, D. C., December 10,1891. 01 the Your letter of November 12, 1891, stibmlttlngtbe question whether, in caseR of judgments agaitIst the United StatelJbymrcuit courts on appeals by importers from illegal assessments of duties by collectors of customs. the refund adjudged to be made by the United Stateslncludes costs. In my opinion costs are not and cannot be Included in.such judgments without some declaration of congress to that effect. As Chief Justice MARSHALL said in U. S.v. Barker, 2 Wheat. 395. in response tOll, motion for costs "agaihst the United States: "The United States never paycostQ;'" In U. B. Y;'BoYd,5 How. 29, 51, the court said: "Another ground upon which thejlldgment must be reversed is that a judgment for cost.s was rendered against the plaintiffs. The United States are not liable for costs!' In the case of The Antelope, 12 Wheat. 546-549, the court says: "It is a general rule that. no court can make' a direct judgment or decree against the United States for costs and expenses in a suit to which the United States is'aparty, either,on behalf of any suitor or any officer of the government. As to the officers Of the government, the law expressly prOVides a See, also, U. B. v. McLemQl'e, 4 How. 286. The proceedings !nstitUtMby importers by war of appeal to the courts under section 15 of the actor June 10. 1890, are suits against the United States, 8S was held after much consideration, in an opinion dated August 7. 1891,and therefore such proceedings as to costs against the United States within the rUlings in the above cases. fall Very respectfully yours, - - - - - , Attorney General.
XILBOURNE ". W. BINGHAM 00
Prank D. Allen, U. S. Atty., and Ht:n/ry A. Wyman, Asst. U. B. Atty., for collector.
JosiaJI, P. 'Pucker, for petitioners.
Com, Circuit Judge. Whatever may have been the practice under former statutes, lam of the opinion thatllnder the act of June 10, 1890, (26 St. p. 131,) interest or costs can be recovered against the United States, because the suit is, in substance. brought against the United States, and the act makes 110 provision for such payment. Upon this point I can add nothing to the opinions of the attorney general under dates of August 7, 1891, and December 10, 1891. The items of interest and costs may therefore be stricken from the judgment in the case.
et al. ". W.
(o,,"cuit OO'W't of .Appeala, 8ttth
June 6, 1_)
PATENTS FOR INVENTIONS-PROCESS OF MANUFACTURE-WROUGHT METAL
SUBSTITUTION OF DIFFERENT MA.TERIAL.
'7.Fed. Rep. 57, aftlrmed.
. Appeal from the Circuit Court of the United States for the Northern District of Ohio, Eastern DiviAion. In Equity. Suit by James Kilbourne and the Kilbourne & Jacobs Manufacturing Company against the W. Bingham Company for infringement of patent. The circuit court dismissed the bill, and complainants appeal. Affirmed. Statement by SWAN, District Judge: Appellant Kilbourne is the patentee and owner of, and the corporation appellant the exclusive licensee under, letters patent No. 240,146, issued April 12, 1881, on application filed December 28, 1880, for "certain new and useful improvements in sinks." This suit was bro1;lght to restrain the alleged infringement of that patent. The patentee in his specification states the t;lature of his invention thus: "My inventi()n consists of a sink swaged or struck up from a single sheet of wrougM