14 F. 683 -

UNITED STATES

v.

683

the decision of the secretary was against them. They have, therefore, taken all the steps prescribed by Rev. St. § 2931, which was formerly St. 80 June, 1864, § 14, (13 St. 213.) Now their embarrassment occurs in this way: U. S. v. Cousine1'y is decided upon the theory that the importer who has duly protested and appealed may pay and then recover back the amount illegally charged to him. This ratio decidendi is given on pages 255 and 256 of the report. But in a case like the present, where an importer has received all his goods, before the last liquidation is made, if he should pay the additional sum demanded and sue to recover back what was excessive, he would be met by the objection that he had paid voluntarily; and. under a familiar principle of law he cannot maintain an action under those circumstances; while if he refuses to pay and is sued, U. S. \. Cousinery decides that he has no right to defend, but must pay and sue. Nothing can be more familiar than the rules of law on the general subject of recovering money once paid. It would be an impertinence to cite authorities, and I shall cite none, except to show that the revenue laws lay down no different doctrine from that prevailing. at the common law, but simply permit the common law to operate. In Elliott v. Swartwout, 10 Pet. 137, the usual rule was applied that one who pays money extorted from him by a public officer who has in his possession property of the payer, so that he can enforce paJment without suit, is at such a disadvantage that he is considered as paying under duress, and may recover back whatever was illegally exacted. In Cary v. Ourtis, 3 How.· 236, the supreme court modified this rule by holding that a public officer who was absolutely bound to pay into the treasury every dollar which he received, so that he could not protect himself in case of suit, was not liable to an action. Congress, then in session, approved of the dissenting opinion of STORY and McLEAN, JJ., in that case, and promptly reversed this decision by St. 26 Feb. 1845;''(5 St. 727.) This .statute g!;tve no new rights. It simply removed the obstruction of Cary 'V.Ourtis, and left the importer to his remedy at common law. That remedy, of course, was to pay, if compelled by the retention of his goods, and then to sue. If he paid after his goods had been delivered, as,· for instance, upon a bond, he could not recover, but should ha-veresisted payment. Marshall v. Redfield, 4 Blatchf. 221. . . So, wheu the internal-revenue acts were passed, it was a serious question Whether the tax-payer had a remedy in court, because those

684

FEDERAL REPORTER.

laws required the collector to make daily payments to the treasury without defalcation or deduction. See the remarks of NELSON, J., in Cutting v. Gilbert, 5 BIatchf. 259. But inasmuch as the statute, in some ,parts, took for granted that an action might be brought, it was held that the remedy at common law was preserved. Philadelphic£ v. Collector, 5 '\Vall. 720. The collector of internal revenue, unlike the collector of customs, has power to issue a summary warrant of distress. Therefore, at common law, a payment to him is compulsory, and as soon as the case I have last cited was decided, Judge SHIPMAN ruled in Sheaje v. Ketchum, 6 Int. Rev. Rec. 4, that if the plaintiff had paid to avoid a distraint of his property, and the tax was illegal, he could recover; so CLIFFORD, J., in two passages of thfl opinion, Mandell v. Pierre, 3 Cliff. 134, says that same thing. In the theory of the law the collectors of customs retain. the goods or money until the duties are paid; but if they fail to keep this advantage, they have no coercive power; It is safe to say, I think, that no case has been decided, in which, under objection, a plaintiff has ever recovered of a collector, or of a payment which was not, in the legal sense, coerced. It is not mentioned in every case, because it is one of those familiar facts which are taken for granted. Does the act of 1864, now Rev. St. § 2931, change all this? I think not. That act is not an enabling, but a limiting and restricting act. It does not purport to tell us when an action may be maintained, but only that the decision of the department shall be final unless certain things are done. It would be coIivenient for the importer, and, perhaps, for the States, that the rule should be assumed in U. S.v:,co'Usine!!h:but I cannot find it in the law; on the contrary, section 3011, which covel'S a part of the same ground, refers to a. payment to obtain possession of the ' It is argued that section 2931 certain dues' fees not mentiolled in section BOn, as,weil as to duties. 'l'he same answer holds good that the'statute does' not say thatan sU{Jh fees and dues be recovered it there has .protest. and appeal, hilt the.r?ever shall steps havElpeentaken. .It is the fact. that .the collector has po:wer to coerce the payment of all such delll:ands by clearances and papers, and payment i\'l made to obtain these, the money may be recovered tbe:charge, :was due protest anq,appe1t1 "Vere; made. ' . statutes of 1839, (as amended,) of 1845 and are aU to found in. the Revised so that the law now reads that the ".. - .... . ..

as

:'

..

-'.

.

UNITED STATES V. SOUtliSINGEB.

685

collector shall pay into the treasury all moneys received by him., (Rev. St. §§ 3615,3617;) that the importer who pays to Qbtain possession of his merchandise may recover back what is wrongly charged, (section 3011;) provided he makes such protest and appeal as the actof 1864 required, (sections 3011, 2931.) Who can doubt that in construing these sections together, as they must be construed, they leave to the tax-payer the right to recover back only when he has made due protest and appeal, and has been compelled to pay? My opinion would the same if section 3011 had been omitted from the Revision; but its presence strengthens the argument. I am of opinion, therefore, that in the two cases in which the im porters paid without compulsion they cannot recover. JudgeNELv SON concurs in this opinion, and in the case lately tried before hirr.. will enter judgment forthe collector. . This decision, by necessary intendment', gives the' right to defend an action where the United States are plaintiffs. The who decidedU. S. appears at a later time to have had his attention called to the fact that there might be cases of payinent in which the importer could not sue, for in U. S.·V. Phelps, 11 Blatcht 312, he said, (page 315 :) .
r

"The only remedy of the importer is in a suit to recover back the dutie,s after paying them, in a case where such a suit is allowed. This was the rUle ing in U. S. v. Cousinery,7 Ben. 251, in 'the district court for this district, f01low'ing Westray v. U. S. 18 Wall. 322. Such'ruling was approved by Chief Justice WAITE iu Watt v. U. S.15 Blatchf. 29, and must be held to be.the law until it is

1 have italicised the remark which I und'erstand to mean' that though one set of meritorious itriporters may have no !emedy a.t's.ll, yet that no their only remedy. The point is not :deeided in v. 8. 18 Wall. 322,' nor in Watt Si 15 'Blaichf. 29. The chief justice 'Cites Cousinery's Case witb appfoval,asThave done in one case; but I tab leave tdthink that in insts.nce, as in the other, the approval was of the general doctrine that the circuit courts must follow Westray v. U. S., and require protest and appeal even when the United States are plaintiffs, however they may be dissatisfied with it. I think so because the chief justice took pains to show that there had been no effectual appeal in Watt v. U. S.; pains which were wasted if there could be no defense under any circumstances. It cannot be the law that the only persons who have no judicial remedy are those who are the most injured by having a fresh demand

REPORTER.

,made upon them after. they have paid all that was supposed to be due, and have received their goods. In the case now before me the United States sue to recover duties upon four importations of what they call steel in bars, which was entered and duties paid as upon "scrap-steel," and the goods were delivered before the final liquidation, and the precise case of U. S. v. Cousinery is presented. .I have given some reasons for saying that they may defend this action. I will add a secondary, though sufficieJ?t, reason. The statqte (section 2931) upon which the (Jousinery Case rests declares the decision of the secretary conclusive, unless the importer shall bring action within 90 days after payment, and these defendants have not paid, and, of course, the 90 days have not begun to run; and equally, of course, the secretary's decision is not final. Therefore, if the United States recover judgment and collect the ,money, the defendants could recover it back at any time within 90 days thereafter if the facts make the assessment illegal, unless they can now set up the same facts; which,of course, they can do to avoid circuity of action. The only possible ground for not permitting them to, J;ecover in such supposed action is that they can and must make their defense here and now. Upon the facts it is certain, and is not now seriously denied, that the goods imported were scrap-steel, and that the United States can. .not recover thebigher rate of duty. It appears, however, that through some mistake of weights in the invoices, and without fraud, a small sum is due on the defendants' own classification. Neither the liquidations nor the declaration in the action informed the of this, and it was agreed that an amendmentsll'ould be filed, but that costs should not follow the judg.mentunless I thought fit to award them, which I do not. The United States will have 20 days to except to my ruling upon of law involved in the case, after which there will be judgthe m.ant for theplai;ntiffs for $116.50 onJy.

;)

'.

est
SOHLESINGER' and others

UNITED

BEARJ).'

(Nol :f546.)

STATES V. SOHLFJSINGlllB and otherS.- (No. 1548.)
December 29,

"a.rou;' Oourt, D.

DuTIB8 ON IMPORTll-WROUGHT ScRAP-IRON.

The and clippings of wrought-iron and wrought iron, left after the manufacture of the boilt;lr.plateB into boilers, though It i. waste iron, fit only to be manufactured. cann'?t be deemed 8craP-lfonf01' dutiable purpose8. because it has not been in actual use. .

George P. Sanger, U. S. Atty., ffi>r the United St!lltes. .0" L. S. Dabney and W. S. Halt, for Schlesinger and others. LOWELL, C. J. These. cases are submitted on agreed faots, require me to decide whether the, punchings and olippings iron boiler-plates and wrought sheet-iron, left. a.fter the of the boiler-plates into boilers was completed,'is dutiabieat eIght dol.. lars a ton as wrought 'If so,. the importers are, right j ,if not, the duty charged by the c,oUector is rightly stat· ute, is Rev. St. § ll'l,p" 466: "Wrought scrap-iron 01 description, eight PElrton. . But, nothlJlg deemed scrap-iron except waste 9r refuse. iron that has been in actual . use, and is fit only. to be remanufactured." . It is agreed t,hat this is waste iron, fit only to be remanufactqred.·. The Qnly question., is 'whether it has been in ,actual use. I do' nO,1 find any recognized meaning of the words use" which be fairly applied to this new scrap-iron. The plates from whjch punched or clipped were new, and had been in no actual use, and I Qannot discover a·ny use to whioh, the cHppings pave been put,' allY ID:0re than I can any to which theY may be put hereafter l:1:n:til they ; they are remanufactured. . . The statqte seems harsh, pl!\in. is '. thoroughly considereq, and the 'V&J.'ious statutes, to the Revised,. Statutes, are compared j:lyludge DElVENS in his Qpinic;m on oJ:}El of these '. cases, in 16 Op. Atty. Gen. 445, with which I' will be: " '" .. , In No. 1546, judgmeJ;}Horthe 'defen4antsfor oosts. .. In No. 1548, judgment for tnEl plainti1fsfor and" costs. . . " '. r . \\ . , . : .' . ,
0

*Reverlled. See 7 Sup., 0$. Rep.