
    DOHERTY’S CASE. Michael Doherty v. The United States.
    
      On the Proofs.
    
    
      The claimant imports goods which remain in hand. The Unties are assessed at the time of importation according to the law as it then existed At the expiration of three years the goods are sold for non-payment of duties. From the proceeds of sale the officers of the Treasury retain, not the duties assessed at the time of importation, hut the duties imposed hy a subsequent statute on similar goods. The claimant contends that the defendants are not authorized hy law to retain out of the proceeds of sale any other duties than those assessed and liquidated at the time of importation, and he sues to recover the balance as money had and received to his use.
    
    Cases arising under tlio revenue lavs are not within the jurisdiction of tlio Court of Claims; and where au importer’s goods were sold for the nonpayment of duties, and lie sues to recover the balance of tiio proceeds of sale, tlio amount being disputed, it is a case arising under the revenue laws.
    
      Mr. George H. Kingsbury for the claimant:
    This is a petition, based upon the provisions of the tenth section of the act of Congress passed July 28, 1866, entitled “An act to protect the revenue, and for other purposes.”
    1. It appears from the evidence that the gin, having remained in warehouse beyond three years, was duly sold by the collector, May 28, 1866. At that time, the proviso in the twenty-first section of the tariff Act Jtdy lith, 1862, was in force, by virtue of which said gin was regarded as abandoned to the government, and the proceeds of sale were paid into the Treasury. That was an end of the matter under the revenue laws.
    
    The tariff Act July 14Jh, 1862, § 21, provides that “any goods remaining in public store or bonded warehouse beyond three years, shall be regarded as abandoned to the government, and sold under such regulation^ as the Secretary of the Treasury may prescribe, and the proceeds paid into the Treasury.”
    Subsequently, July 28, 1866, Congress passed the act entitled “ An act to protect the revenue, and for other purposes.” The petitioner’s claim was created by, and is based upon, the tenth section of that act. and not upon any tariff or revenue law. This claim came iuto being only after the expiration of the time .within which any claim could have been made by the petitioner under the revenue laws, and the revenue laws are now brought under consideration, nor to establish the petitioner’s right to maintain his claim, but only for the purpose of computing the amount payable to him under the act which created his claim.
    
      Act July 28th, 1866, § 10, provides that the second proviso in section twenty-one, Act July 14i7q 1862, which provides that “any goods remaining in public store or bonded warehouse beyond three years, shall be regarded as abandoned to the government,” &c., “ is hereby amended so as to authorize the Secretary of the Treasury, in case of any sale under the said provision,do pay to the owner, consignee, or agent of such goods, the proceeds thereof, after deducting duties, charges, and expenses in conformity with the provisions of the first section of the warehouse Act August 6th, 1846.”
    Eevenue laws are laws relating to the collection of revenue, and under them careful provision is made for the protection of the rights of the citizens, in designated courts, aud under established forms' aud proceedings. But laws relating to the' disbursement and disposal of the money held in the Treasury are in no sense revenue laws. Under the law upon which this claim is based, there is no judicial tribunal, except the Court of Claims, that is possessed of jurisdiction to pass upon the rights of the claimant. It is such cases that the- Court of Claims would seem to have been established especially to adjudicate.
    
      Mr. Alexander Johnston (with whom was the Assistant Attorney General) for the defendants:
    So material fact iu this case is disputed. The firm of 0. & M. Doherty imported, on the 5th of April, 1803, a quantity of gin, -which was entered for warehousing at the port of Boston. After remaining in bond over three years, the gin was sold and the proceeds paid into the Treasury. The collector who made the sale charged the gin with duty at the rates prescribed by the Act June 30, 1864.
    Has the Court of Claims jurisdiction of the case; and under this, aside from the question of jurisdiction of this court in cases arising under the revenue laws, arises the question as to whether the Secretary of the Treasury, in eases of this character, has not exclusive jurisdiction.
    I. (1.) As to the matter of jurisdiction, the case, except as to any claim there may be for $255 99, comes within the ruling of the Supreme Court in Nichols v. The United States, (7 Wall., 122;) and the whole case comes within the ruling of this court in the case of The Portland Company, (5 C. Ols. B.., p. 441.)
    “ There can be no doubt that the question as to whether the-claimant’s gin was chargeable with duty at the rate of $1 per gallon or $2 per gallon, is a question ‘arising under the revenue laws.’ ”
    (2.) Claims arising- under the tenth section of the Act July 28th, 1866, are not absolute claims against the government. Before the passage of that act, the owner of goods sold as abandoned under the Act July 14th, 1862, had no claim at all; and the act. of 1866 merely authorized the Secretary of the Treasury to pay to tbe owner, consignee, or agent o| such goods the net proceeds thereof. This placed the matter in the hands of the Secretary of the Treasury — in his discretion; and did not give, nor was it intended to give, any judicial remedy against the government, whereby such payment could be compelled. [Meade's Case, 2 0. Ols., p. 224 ; De Bocle’s Oase, 3 Clarke, H. L. Oases, p. 469; Barnard’s Heirs v. Ashley’s Heirs, 18 How., p.,43.)
    “Formerly all duties were payable upon importation of tbe merchandise. Afterward the government, as a matter of favor and accommodation to importers, permitted the merchandise to be warehoused — at first for one year, and afterward for three years — before the duties were exacted. This privilege was accompanied with certain conditions., with penalties for noncompliance. This policy having been adopted entirely in the interest of the importers, they cannot complain of its workings; certainty not when they are in the wrong.”
    [Note. — The learned counsel on both sides examined very , fully the question as to the rate of duty properly assessed on the article imported and sold, but it is unnecessary to insert their able arguments on this point, as the case turned entirely on the question of the jurisdiction of the Court of Claim's.]
   Draiie, Ch. J.,

delivered the opinion of the court:

The firm of C. & M.-Doherty, ,of which the claimant is the survivingpartner, on the 5th of April, 1863, imported into the port of Boston twenty-three hundred and ninety-two gallons of gin, which were duly entered for warehouse.

The duties upon said gin under the law then in force amounted to $2,551 26 in coin, or $3,495 22 in currency, and the "same were duly assessed and liquidated by the collector of the port.

The gin remained in warehouse more th an three years; at the expiration of which time, under the provisions of section twenty-one of the Act 14th July, 1862, “ increasing-, temporarily, the duties on imports, and for other purposes,” (12 Stat. L., 543, 560,) it was sold by the officers of the Treasury; the gross proceeds of the sale being $7,352 79.

From this sum those officers deducted first the expenses, $399 69; and secondly, $6,697 11 for duties on the gin, according to the law in force at the time of the sale; leaving as net proceeds $255 99.

The claimant contends that the government was not authorized to retain out of the gross proceeds any other amount of duties than that assessed and liquidated at the time of the importation, to wit, $3,495 22. He admits that the expenses above mentioned should be also retained. Deducting those two sums, aggregating $3,894 91, from the gross proceeds, leaves $3,457 88; for which amount he sues.

The above-cited act provides that “ any goods remaining in public store or bonded warehouse beyond three years shall be regarded as abandoned to the government, and sold under such regulations as the Secretary of the Treasury may prescribe, and the proceeds paid into the Treasury.”

By this provision no part of the proceeds could be returned to the owner of the goods, but the whole amount must be paid into the Treasury, though it should exceed the amount of the government’s claim.

To remedy this injustice to importers it was provided in the tenth section of the Act 28th July, I860, “to protect the revenue, and for other purposes,” (14 Stat. L., 328,) that the Secretary of the Treasury should be authorized, in case of any sale of property under the above-cited provision of the Act 16th July, 1862,'to pay to the owner, consignee, or agent, the proceeds thereof, after deducting duties, charges, and exiienses, in conformity with the provision of the first section of the warehouse Act 6th August, 1840; which act provided that, notwithstanding the payment of the overplus into the Treasury, the owner of the goods, on proof of his interest, should be entitled to receive from the Treasury the amount of the overplus. (9 Stat. L., 53.)

The claimant would seem entitled, under these provisions, to have refunded to him the overplus of the proceeds of the sale of the gin in question, after deducting from such proceeds the duties, charges, and expenses. The Secretary ,of the Treasury states that overplus at $255 99; but the claimant insists that it is $3,457 88.

The difference between these sums is caused by the different amounts of duties named by the respective parties; the claimant contending for the smaller sum, and therefore insisting that the imposition of the larger sum was illegal. This controversy necessarily requires a construction of the laws bearing upon the case.

The decision of the Supreme Court in Nichols v. The United States, (7 Wall., 122,) precludes our taking jurisdiction of this-question. The conclusion of that court there was “ that cases arising under the revenue laws are not within the jurisdiction of the Court of Claims.”

This case unquestionably arises under the revenue laws, aside from which it lias no foundation. If the claimant has any rights whatever in the premises, they rest upon those laws. We cannot take a stop in the case without having to construe and apply them. As we cannot do this, the claimant is without remedy here, and his petition must be dismissed.

Nott, J., did not sit in this case, and took no part in the decision.  