
    Pierre E. Broulatour et al. v. The United States.
    
      On an agreed Statement.
    
    
      The case is submitted on an agreed statement of fact, which the Secretary of the Treasury certifies to be correct and sufficient. By this statement it-appears that it has been shown to the satisfaction of the Secretary that an overpayment of duties on imposts was made by the claimants, to recover which they now bring their action.
    
    I. A case may be lieard and determined, and judgment he rendered for the claimant on no other evidence than “ an agreed statement of facts,” certified hy the Secretary of the Treasury to he “ correct and sufficient,” which both parties agree to admit in evidence. (See Amoskeag Company’s Case, 6 C. Cls. R., p. 99.)
    
    II. The Court of Claims has j urisdiction of an action to recover hack an overpayment of unascertained duties on imports, when it has heen “ shown to the satisfaction of the Secretary of the Treasury,” as required by the Act ‘¿Oih Tune, 1864, (13 Stat L., p. 202,) that there was an overpayment. But the ease is to bo distinguished from cases where the importer pays under protest, and it is afterward ascertained that more money was paid than the law requires. Such are oases arising under t-lic revenue laws, of which the court has not jurisdiction.
    
      Mr. T. J. Durant for the claimant:
    The petitioners imported from Marseilles a quantity of duti-. able merchandise in April, 1861.
    The ship arrived in the collection district of New Orleans on the 23d April, 1864, when the manifest of the cargo ivas exhibited to the custom-house officer, and certified by him.
    The merchandise was entered at the custom-house in New Orleans on the 2d May, 1864, when petitioners paid $4,995.39, in gold, to cover duties, amount subject to be ascertained by future calculations.
    The merchandise was then delivered to petitioners on their giving bond in the sum of $16,000 to pay any excess of duty which might be found to be legally due above the amount deposited.
    The collector found the duty to be $4,394.91, being $624.40 less than the amount deposited; but the collector added to the duties imposed by law 50 per cent., professing to act under the provisions of a joint resolution of Congress of 29th April, 1864, (13 Stat. L., p. 405,) and the circular instructions of the Secretary of the Treasury of May 3, 1864, which made the duties $6,562.37, and brought the petitioners in debt, as short deposited, $1,566.98.
    Thereupon the collector demanded from petitioners said difference, $1,566.98, and caused suit to be brought to recover it on the bond of $16,000 in the United States circuit court in New Orleans, and in said suit judgment was given against the United States.
    From this judgment, rendered on the 17th December, 1864, the United States appealed to the United States Supreme Court, where the appeal was dismissed on 2d of February, 1867, and since said dismissal no proceedings have been taken by the United States to obtain a review of said decision of the circuit court of the United States at New Orleans.
    
      First. The suit in the United States circuit court in Louisiana was to recover the additional duty on the merchandise imposed under the joint resolution of April 29,1864; and the Treasury circular of May 3, 1864, directly involved tlie question whether petitioners had deposited with the collector $1,566.98 too little or $620.40 too much; that question was decided against the United States, and it was determined that the Government owed the petitioners that sum.
    
      Second,. The- judgment of the circuit court having been rendered on the 17th December, 1864, could only be appealed or removed by writ of error to the Supreme Court of the United States within five years after, or until 17th December, 1869. The judgment of the circuit court in Louisiana is, therefore, final and conclusive against the United States.
    There is no difference between the judgments of the Supreme Court and those of a circuit court,.after the time for appeal has-elapsed. (Voorhies v. Banlc United States, 10 Peters, 474.)
    It was, therefore, the duty of the Treasury Department to refund the excess of $620.40. (Grignan’s Lessee v. Astor, 2 Howard, p. 341.)
    
      Third. The statutes of the United States expressly provide for the return of duties paid in excess. (§ 2 Act March 3d, 1839, 5 Stat. L., p. 348.)
    
      Fourth. The ruling of the circuit court in Louisiana was correct; tbe Joint resolution 29th, April 1864, increasing’ temporarily the duties on imports, (13 Stat. L., p. 405,) and by wliicli the 50 per cent, additional was imposed, had, no retroactive effect, and the merchandise in question was imported before that date, to wit, on the 23d April, 1864. (The United States v. Yowell, 5 Crunch, p. 368; Arnold v. The United States 9 Craneh, p. 105; Perot v. The United State'S, Peters’s •0. 0. Heps., p. 256.)
    
      Mr. J. K. McOammon (with whom was Mr. Assistant Attorney-General McMichael) for the defendants :
    1. There was no protest made when the claimants paid the duties to the collector at New Orleans, and they therefore lost all right to ask for repayment, and no promise by the Government to pay back the duties could be implied against the positive command of the act of February 26,1845. (5 Stat. L., 727; 11 Stat. L., p. 195, § 5; Nieoll v. United States, 7 Wall., 128, 129; and case of W. 'J. Patten v. United States, decided the present term of Court of Claims, ante, p. 362.)
    2. The Court of Claims has no jurisdiction of cases arising under the revenue laws. (Nieoll v. United States, 7 Wall., 131; Portland Company v. United States, 5 O. Cls. B., 441.)
    3. The suit instituted by the United States against the claimants was fox $1,566.98, the amount in excess of $4,995.39 paid by the claimants on receipt of goods, and on this issue the court gave judgment against the United States.
    This certainly is not res adjudícala, except as to $1,556.98, which was a separate and distinct amount from, and did not include, the $620.40 claimed in this suit to be due the claimant.
    4. The Act March 3d, 1839, was changed by the Act Pebruanj 29th, 1845, which altered the rule previously in force. (Nieoll, 7 Wall., 126.)
   Peake, Oh. J.,

delivered the opinion of the court:

The claimants were subjects of the French empire and merchants resident in New Orleans, and they gave no aid or comfort to persons engaged in the rebellion against the United States.

By the Australian ship Katika they imported into New Orleans from Marseilles, France, a quantity of merchandise, which was entered at the custom-house in New Orleans on the 2d day of May, 1865, on which day they paid to the collector of customs at that port, as a deposit to cover the amount of duty which, on calculation, might be found due on said merchandise, the-sum of $.4,995.39, in gold; and at the same time, in consideration of the" delivery of said merchandise to them, they gaveboñd in the sum of $16,000, conditioned that they should pay any excess of duty over and above the said sum of $4,995.39 which might be found to be due according to law on said merchandise.

Subsequently the collector made his calculation^ the duties imposed bylaw on said merchandise, and found the same to be $4,374.91, being $620.48 less than the amount deposited.

On the 29th of April, 1864, the “ Joint resolution to increase-temporarily the duties on imposts” (13 Stat. L., 405) was passed, providing “that, until the end of sixty days from the passage of this resolution, 50 per cent, of the rates of duties and imposts now imposed by law on all goods, wares, merchandise, and articles imported shall be added to the present duties and imposts now charged on the importation of such articles.”

On the 3d of May, 1864, the Secretary of the Treasury issued a “ circular to collectors of customs,” in the following terms:

“ Tee as un, y Department, May 3,1804.

“Doubtshaving been expressed as to the proper construction of the joint resolution of April 29,1864, increasing duties on imports, you are hereby informed that, in the opinion of the Department, the increased duty is applicable to all goods upon which the duty has not been paid, including those bonded in warehouses or in transitu from one port to another under-bond.

“ You will therefore require the payment of the additional duty on such goods.” -

In pursuance of the instructions contained in this circular,, the collector of the port of. New Orleans imposed upon said merchandise an additional duty of $2,187.46, being 50 per cent, of the amount of duties previously calculated by him.

This sum the claimants refused to pay, and the United States-brought suit against them in the circuit court of the United States for Louisiana, on the bond aforesaid, to recover the-same. The claimants defended the suit, denying that the merchandise was liable to the 50 per cent, additional .duty; and on this issue the circuit court, on the 17th of December, 1864, gave judgment against the United States and in favor of claimants. From this judgment the United States appealed to the Supreme Court of the United States, by which court, on the 2d of February, 1867, the said appeal was dismissed; and no proceedings have been instituted in court on the part of the United States to obtain a further review of said judgment of the circuit court, either by appeal, writ of error, or otherwise.

The claimants now sue to recover $820.48, being the excess of the money deposited by them with the collector, over the amount of duties first calculated by him on the merchandise.

It is claimed on behalf of the defendants that, as the case arises under the revenue laws, this court, under the ruling of the Supreme Court in the case-of Wiehols v. United States, (7 Wall., 122,) has no jurisdiction of the action.

In our opinion this point cannot be sustained. The claim, reduced to its simplest form of statement, is for so much money had and received by the defendants for the use of the claimants. The agreed statement of facts shows plainly and conclusively that not a cent of revenue is involved in the case, but a mere right to reclaim an acknowledged overpayment. If the dispute were about the amount which the Government was entitled to hold for duties, it would be a question of revenue; but there is not the least question of that sort. The collector, after receiving the money deposited by claimants, calculated and ascertained the lawful duties demandable, and the claimants acquiesced in his decision. The amount calculated and ascertained by him was revenue, and the Government was entitled to hold it, and its right to it is not questioned by claimants. Not a cent above that was the Government entitled to keep. When it received the claimants’ money as a deposit for a specified purpose, there arose in law an implied contract on its part to repay to them whatever remained of that money after fulfilling that purpose.

Such are our views of the case on principle. They are, as we conceive, sustained by the statutory provisions applicable to the case, to which we now direct attention.

The case rests upon the construction to be given to section' 1G of the uAct to increase duties on imports, and for other purposes ,” June 30,1864, (13 Stat. L., 202,) which is in these words:

“ That whenever it shall be shown to the satisfaction of the Secretary of the Treasury that, in any case of unascertained duties, or duties or other moneys paid under protest and appeal, as hereinbefore provided, more money has been paid to the collector, or person acting as such, than the law requires should have been paid, it shall be the duty of the Secretary of the Treasury to draw his warrant upon the Treasurer in favor of the person or persons entitled to the overpayment, directing the said Treasurer to refund the same out of any money in the Treasury not otherwise appropriated.”

This provision refers to two descriptions of overpayment: 1. That occurring in the case of payment made in advance of the legal ascertainment of the duties j which is the case of these claimants; and, 2. That occurring where the importer pays under protest', and it is afterward determined that “ more money has been paid than the law requires should have been paid f which is not the case of these claimants.

As to the former description of overpayment, the law is too explicit for comment, in requiring it to be refunded as soon as “it shall be shown to the satisfaction of the Secretary of the Treasury ” that such overpayment has been made. To withhold it after the Secretary is satisfied on that point, is a violation of the letter and the spirit of the law. To enable the party to reclaim his own in such case, the Government imposes but one condition — that the Secretary shall be so satisfied. The moment he signifies that he is so, the obligation of the Government to refund is complete, without appeal. From that moment the case ceases to be one of revenue, because by the very fact of his being satisfied that the overpayment was made, it is finally and conclusively established that, to the. amount of the overpayment, the Government has money of the importer, which, by express law, it has agreed shall be repaid to him.

It follows, then, that whether this court has jurisdiction of this action, depends upon whether the Secretary of the Treasury has signified himself satisfied that the overpayment was made as averred by the claimants. If he has not, then it is still a question of revenue, and under the ruling of the Supreme Court iu MchoVs Case is not witbin our jurisdiction; if ho has, then it is a question of contract, of which we may, as we conceive, lawfully take cognizance, on the principles laid down in the cases of Michael Daily and W. J. Patten, decided at the present term of this court.

Under ordinary circumstances it would be difficult to decide whether the Secretary of the Treasury had been satisfied of the fact of overpayment, if his official declaration to that effect were not produced. It might be questioned whether evidence of any other character would prove the fact. But, as we conceive, it is not necessary that the official declaration should assume the form of a direct and formal adjudication by him of the fact. If in any manner it appears f rom himself that he is sat - isfiedthat the overpayment was made, we are justified in acting.

Now, this case is submitted to us upon an agreed statement of facts, which the Secretary of the Treasury in writing declares to be “ correct and sufficient,” and which both parties agree to admit in evidence. That statement sets out circumstantially the transaction, as stated in the opening of this opinion. It shows the overpayment by the claimants of the $620.48 now sued for, in as simple, clear, and direct a manner as it was capable of being shown; and does not deny that the Secretary was satisfied of its having been made. When he thus authenticates to us a statement of facts, which shows the overpayment as plainly as the subtraction of 2 from 4 will leave 2, are we not justified in holding that he thereby declares himself satisfied that the overpayment was made? If in connection with that plain statement he had cited facts to show that the overpayment was only apparent, not real, another and different conclusion might be reached; but there is nothing of that description; the overpayment is stated arithmetically and unqualifiedly ; and, in our opinion, would not have been so stated if the Secretary had not been satisfied of its existence. For the purposes of this case we hold that he was so.

In the same statement of facts, the matter of the 50 per cent, additional duties imposed by the collector is brought in, and relied upon as in some way defeating or affecting the right of the claimants to have the overpayment refunded. But it cannot have any such effect, for the simple reason that the right of the Government to base any claim whatever upon that assessment by the collector, bas been completely and finally cut off' by tbe adverse judgment of the court in which, the Government sued the claimants therefor. That assessment, therefore, is, as to this case, as if it had never been.

We fall back, then, upon the simple and single point of the overpayment; and under the views already expressed we have no hesitation in ordering judgment to be entered in favor of the claimants for $620.48, in gold coin, two-third's of which amount are for the use Of Thomas J. Durant.

Boeing, J.,

dissenting:

The revenue laws of the United States provide that when the duties upon imported goods can.not be accurately ascertained at the time of entry, an estimate may be made of the duties payable, and on the deposit or payment of the amount of the estimate, and the delivery of a bond for the payment of any further duties that may be found due, the goods may be entered and delivered to the importer.

The duties so paid are called in the revenue laws “unascertained duties,” and this is a claim for an excess of $620.48, in-the estimate of such unascertained duties. And it is nothing more, for it has no connection with the 50 per cent, additional duties under the Joint Resolution 29th April, 1864, which the circuit court in New Orleans decided did not attach to the goods imported.

Previously to 1839, claims in cases of unascertained duties, or for duties illegally assessed, were recoverable only by a suit against the collector, and under the rules of the common law’ governing suits against agents, by which notice or protest against his action must be given to the agent before he pays-over the money. And it was found by a notorious experience that frauds were practiced by collectors, who retained large sums of money in their hands and use, on the pretense of awaiting litigation j and thus, in memorable instances, the United States w’ere subjected to great losses.

To remedy this the statute of March 3,1839, was iiassed,,. (5 Stat. L., 548,) by the second section of -which it was provided that all moneys received by collectors for unascertained duties, or duties paid under protest, should be paid directly into the Treasury by the collectors; and that whenever it should. be shown to the satisfaction of the Secretary of the Treasury in any case of unascertained duties, or duties paid under protest, that more money had been paid than was actually due, he shall, by his warrant upon the Treasurer, refund it.

In 1844 the Supreme Court decided (3 How. R., 236) that, as • the statute of 1839 required the collector to pay the money received by him for unascertained duties, and duties paid under protest, directly into the Treasury, no action for such duties could be maintained against him. And in reference to the act of 1839 the court said: “We have no doubt of the objects or import of that act; we cannot doubt * * * that it controls both the position and conduct of collectors of the revenue; that it has denied to them every right or authority to retain any portion of the revenue for purpose of contestation or indemnity ; has. ordered and declared the collectors to be the mere organs of receipt and transfer; and has made the head of the Treasury Department the tribunal for the examination of claims for duties said to have been-improperly paid.” And the court then considered at length and affirmed the legality of the arrangement made by the statute as. to unascertained duties and duties paid under protest.

In consequence of this decision, (5 Stat., 459, note,) Congress passed the act of 1845, chapter 22, (5 Stat. L., 727,) which restored the suit against the collector for duties paid under protest, but which did not include or affect cases of unascertained duties, and thus left them, as before,-under the statute of 1839, which for them, in the words of the Supreme Court, “ made the head of the Treasury Department the tribunal.”

The distinction thus made by Congress between duties paid under protest and unascertained duties, by restoring to the former, and not to the latter, the judicial tribunal or right of suit, taken from both by the statute of 1839, declared the intent of Congress unmistakably to continue for cases of unascertained duties the tribunal made for them by the statute of 1839, viz, the head of the Treasury Department. And this arrangement has never been altered in the revenue laws. On the other hand, the Act 30th June, 1864, (13 Stat., 202,) reenacted it, for that act, in its fourteenth section, gave the right of suit for duties paid under protest, and did not give it in cases of unascertained duties, but in its seventeenth section submitted those, as under previous acts, to the control of the Secretary of the Treasury.

I think this legislation, persistently maintained from 1839 to 1864, shows the intent of Congress to distinguish between cases of duties paid under protest and of unascertained duties, and to confine the latter to the control of the Secretary of the Treasury in the administration of the system of the revenue laws. And that this court cannot counteract the purposes or trench upon the administration of that system of laws was decided in WiehoVs Case, (7 Wall., 122.)

It was contended at the bar that this case was not within the decision of NichoVs Case, because the money claimed is not, and never was, any part of the revenue or income of the United States, but is simply money in the Treasury belonging to the claimants. That is the question submitted by the revenue laws to the Secretary of the Treasury, and his use or misuse of the facts that should guide his action does not authorize ours. His omission or refusal to exercise his jurisdiction under the revenue laws does not transfer it to us.

It is certain that the money claimed was paid under the revenue laws, and according to them; the case, therefore, is one arising under the revenue laws, and is thus within the careful language used by the Supreme Court instating their question, and carefully repeated in their adjudication of it. They thus state their question: “ Did Congress, in creating the Court of Claims, intend to confer on it the power to hear and determine cases arising under the revenue laws ¶ ” and their adjudication of it is stated thus: “We are satisfied that easesarising under the revenue laws are not within the jurisdiction of the Court of Claims.” And the reason given for the decision is that the revenue laws form a system involving the policy of the Government, and that policy, requires that cases arising under the revenue laws should be administered as those laws prescribe.

I think that this is a case “ arising"under the revenue laws,” and provided for by them, that we have no jurisdiction of it and that the petition should^be dismissed.  