
    Hance Lawson v. The United States.
    
      On the Proofs.
    
    
      The collector of the port of Crisjield is required by the Treasury to account for all moneys collected. JECepays them over without protest as to Ms right to certain fees.
    
    I.The statutes in regard to the comijensation of collectors of customs up to 1867 examined and stated.
    II.The Act 25th February, 1867 (14 Stat. L., 4101, -which established the eastern district of Maryland, of which Crisfield is the port of entry, • and provided that “the collector of said eastern district shall receive an annual salary of $1,200”, did not abolish by implication previous Statutes allowing fees to collectors in addition to these salaries.
    III.A payment into the Treasury of all fees and collections made by a collector under the authoritative requirement of the department is not a voluntary payment, though made without protest, and does not prevent him from suing to recover back Ms percentage of the fees, -&c.
    TV. The statute of limitations does not run against a collector in regard to 'his percentage of fees and collections while the money remains in his official custody. The statute begins to run when he pays the money over to the Treasury.
    
      The Tieporters* statement of tbe case:
    Tbe following are tbe facts as found by tbe court:
    I. Tbe claimant beld tbe office of collector of tbe port of Oris-ñeld, Md., from April 19, 1867, till April 1, 1875, and received from tbe defendants during that time a salary at tbe rate of $1,200 per annum.
    II. On tbe 18tb of July, 1867, in answer to a letter written by tbe claimant to bim, the Commissioner of Customs wrote to the claimant the following letter :
    “Treasurí Department,
    “OEEICE OE COMMISSIONER OE CUSTOMS,
    
      “July 18,1867.
    
      “ Sir : Tour letter of 15th ulto. is received. The twelve hundred dollars salary given you by the act creating your district constitutes your entire compensation. You are required to account for all fees.
    “Very respectfully,
    • “I. SAKGENT,
    
      u Commissioner.
    
    “Hance Lawson, Esq.,
    
      u Collector, Crisfielcl, Md.
    
    III. In consequence of this letter the claimant accounted for and paid into the Treasury, as hereinafter set forth, all moneys collected by him as duties on imports and tonnage, except what was expended for office rent, fuel, and expenses, and for services of his deputy and clerks, and should be allowed in the settlement of his accounts at the Treasury Department.
    IY. During his term of office the plaintiff collected as fees $9,066.43, of which he paid out for office rent, fuel, and expenses the sum of $623.48, and for his deputy and clerks the sum of $2,492.29, as follows:
    
      
    
    for which sums he was allowed credit in his accounts.
    Y. The remainder of the $9,066.43, to wit, the sum of$5,950.66, was by Mm paid oyer without protest to the Treasury of the United States, as follows :
    May 22,1869 . $343 69
    March 28, 1871. 471 21
    June 6,1871 .,. 994 92
    September 30, 1871...,... V... 237 75
    February 25, 1873.,.... 1, 052 13
    December 30, 1873 ... 992 99
    March 19,1874. 862 59
    September 30,1874. 204 37
    December 31, 1874 . 300 00
    March 23,1875. 401 26
    May 22, 1875. 92 05
    5,950 66
    Of this sum, $2.30 was for tax on his salary.
    YI. Under the fifteenth section act of 14th July, 1862, .and fourth section act 3d March, 1865, he collected and paid to the government tonnage-tax as follows:
    Before the 8th March, 1871. $11, 815 42
    March 8, 1871, to June 30,1872. 15 00
    July 1,1872, to December 31, 1872. 8 81
    11, 839 23
    
      Mr J. Upshur Dennis for the claimant:
    The doctrine that money voluntarily paid cannot be recovered back rests upon no principle save that of estoppel, in the interest of convenience, and “so harsh a rule ought to be modified by every exception which can be admitted without defeating its policy.” (Moreland v. Atchison, 19 Tex., 303.)
    Therefore, while admitting the rule, courts will always lay hold upon any equity they can find, and relieve against it, as, among others, in cases of undue influence. (Story’s Equity, § 116, et seq., for the general doctrine.)
    Such undue influence grows out of inequality between the parties. (Wheeler v. Smith, 9 How., 55,81.)
    In this case such inequality existed. Lawson was a subordinate of the Treasury Department. Under the law, its decisions upon him were conclusive (Rev. Stats., § 2652), and he was exposed to the severest penalties had he refused to pay this money over when required by the department. Moreover, be would bave at once lost bis office and been branded as a defaulter. There was no possible way in wbicb be could litigate bis rights and avoid the above consequences, except by paying over the money when demanded, and afterwards asserting bis rights in this court. In such a case the doctrine of estoppel will not be applied, and be is entitled to recover. The case of Paiten v. United States (7 C. Cls. R., 374) is conclusive upon this point.
    No protest at the time of payment is necessary to entitle the party to relief. (Adams’ Case, 1 O. Ols. R., 306; Boston Go. v. Boston, 4 Met., 181; Amesbury Woolen Go. v. Amesbury, 17 Mass., 461; Breston v. Boston, 12 Pick., 7; Ripley v. Gelston, 9 Johns., 201; Clinton v. Strong, id., 370.
    The claimant in this case is also entitled to relief upon the principle that a payment is never voluntary when made upon an illegal demand colore officii. (Steele v. Williams, 20 Eng. L. & Eq.; Dew v. Parsons, 2 B. & A., 563; Morgan v. Palmer, 2 B. & C., 729; Glose v. Phipps, 7 M. & Gr., 586; Show v. Woodeoelc, 7 B. & C., 73; Atlee v. Baelchouse, 3 M. & W., 633; Oates v. Hudson, 6 Weis., H. & G., 346; BeBow v. United States, 11 C. Cls. R., 672.)
    The cases rebed upon for the government are not in point. Schlesinger’s Case (1 C. Cls. R., 12) merely decided the government could only be sued after compbance with the conditions annexed to the privilege, and in that case a protest was in terms required. He was also held guilty of negligence. “The amount paid was believed by both the parties to be the true amount; there was no objection made, no official oppression, and the parties stood upon a footing of equality. (Folsom’s Case, 4 C. Cls. R., 366.)
    
      HalVs Case (9 C. Ols. R. 271) was a suit under the “Disbursing Officers’ Act,” under wbicb the party bad a remedy before paying the money, and wbicb remedy, the court says, be ought to bave first pursued. Moreover, in that case the government bad both legaby and equitably a claim to the money and could bave recovered it by suit, while Hall had bis redress against the drawees of the checks. Here Lawson has rendered full services, for the money; ex eguo et bono be alone is entitled to it; the government has no claim, except from possession, and that possession was illegally and wrongfully obtained.
    
      
      Mr. John 8. Blair (witli whom was tbe Assistant Attorney-•General) for tlie defendants.
    The act of March 2, 1831, is an express exclusion of the fees and commissions to the collectors. And it is to be observed in passing that the $1,200 salary'given to the collector of the eastern district of Maryland is but $50 less than was by the acts of March 3,1855, March 3, 1853, and March 2,1831, made the exclusive compensation of the collectors of such ports as Detroit, Chicago, Sandusky, Cleveland, and Toledo.
    The construction put upon the- act of February 25j 1867, by N. Sargent, Commissioner of Customs) on the 18th July, 1867, was acquiesced in by Lawson throughout his term, and he paid over the sums for which he now sues without protest, and. under no violence or duress. He does not allege that he made these payments under any mistake of fact, but simply in ignorance of the law. (Sohlesinger’s Case, 1 C. Cls. R., 16; Folsom’s Case, 4 id», 366 j Hall’s Case, 9 id., 270.)
    The case of Carter (6 C. Cls. R., 331) was decided in favor of the United States without a discussion of his right of recovery.
   Drake, Ch. J.,

delivered the opinion of the court:

The eastern district, of which Crisfield was the port of entry, was, by the Act February 25, 1867 (14 Stat. L., 410, ch. 81), formed out of a part of the district of Yienna, which had been constituted by the Aot July 31, 1789 (1 Stat. L., 33, ch. 5), and had continued in existence until the passage of the act of 1867, when it was abolished;

By the act of February 25, 1867, it was enacted that the collector of said eastern district shall receive an annual salary of twelve hundred dollars.”

The question is, whether the claimant, as collector at Cris-field, was entitled by law to any further compensation than that prescribed salary. To decide this, it is necessary to examine the laws in regard to the compensation of collectors which were in force when the claimant was appointed.

By the Act March 2, 1799 (1 Stat. L., 704; ch. 23), compensation was allowed to all collectors as follows:

I. Certain prescribed fees, authorized to be demanded and received for the use of the collectors,” which provision is now in § 2654 of the Revised Statutes.

II. Certain percentages on duties on imports and tonnage, varying in amounts, at different ports named, and winding up with a general provision allowing “ to the' collectors of all other districts three per cent.” The district of Yienna, not being there named, came under the three per cent, clause. This provision, modified in the amounts of commissions allowable in certain named districts, but containing- the three per cent, clause as to all others, is in § 2659 of the Devised Statutes.

“In addition to those allowances,” the act authorized to “be allowed and paid annually ” to the collectors of certain named districts a sum of $150, $200, or $250; and among those named to receive $200 was the collector of the Yienna district.

It follows that, up to the time when that district was abolished, the collector at Yienna had lawful right to compensation in a threefold form, viz : 1. Fees; 2. Three per cent, on duties on imports and tonnage; and, 3. An annual salary of $200.. The fees, under a law applicable to all collectors; the percentage, under a law applicable to all collectors except those in certain named districts; and a salary, under a provision applicable only to the districts named.

The fees and percentages were not, however, to be entirely for the emolument of the collectors, but were to be applied in part to pay the expenses of the office; and the collectors were required to render annual accounts thereof, and also of all their expenditures for rent, fuel, stationery, and clerk hire ta the Treasury Department. (Act March 2,1799, ut supra, and Act May 7, 1822, 3 Stat. L., 693, ch. 107, now in §§ 2639 and 2641 -of the Devised Statutes.)

Whatever balance of fees and percentages might remain after payment of those expenditures was to form a part of the collector’s emoluments, provided the emoluments did not exceed $3,000 per annum, after deducting the necessary expenses incident to his office; in which case the excess over that sum was required to “ be paid into the Treasury for the use of the United States.” (Act May 7, 1822, ut supra.)

Such was the state of the law when the claimant was appointed to, and during the whole time he held, the office of collector of the eastern district at Crisfield.

With the law in this condition, the Commissioner of Customs decided that the- twelve hundred dollars salary given the claimant by the act creating his district constituted his entire compensation, and required him to account to the United States for all fees. Was this decision correct % We think not.

Had the law placed collectors in two distinct classes as to compensation, and allowed to one class fees and percentage only and to the other class salary only, it might Avith more justice be claimed that the fixation of the claimant’s salary at $1,200 would place him in the latter class, and debar him from the fees and percentage. In many instances, as may be seen by reference to the Revised Statutes from § 2660 to § 2685, Congress manifested its intention to make the salaries of collectors their entire compensation by using apt words to that end; but no such words are used in reference to the collector of the district in question. As to him, the provision simply declares what his salary shall be. To give this the effect of excluding-him from the benefit of the fees and percentage, it must be held that it was an implied repeal, as to his district, of the laws allowing fees- and percentage. We do not see that any such effect is attributable to it, for there is no inconsistency between the allowance of salary and the allowance of fees and percentage. On the contrary, the acts referred to allow salary, fees, and percentage to a very large number of collectors. If, then, there was no repeal of the acts allowing fees and percentage, those acts remain in full force, and the claimant, during the whole term of his tenure of the office, was entitled first to the salary, and secondly to the balance of the fees and percentage after deducting the expenses of his office.

That, under the authoritative requirement of the Treasury Department, he paid all that balance into the Treasury without protest gives no right to the government to hold the money. It was not, in the eye of the law, a voluntary payment. It was demanded of him by his official superior, as now appears, without warrant of law, and it would be a reproach to the government to hold it unlawfully, merely because he submitted without protest to an order which he was not legally bound to resist, and resistance to which might not only have cost him his office, but involved him in expensive and injurious conflict with the government. The jurisdiction of this court over claims founded upon any law of Congress” was conferred for the very purpose of obtaining judicial decision of controversies between the government and citizens growing out of variant constructions of such laws; and the relief intended to be afforded the citizen, here is not to be denied Mm because be unresistingly obeyed a requirement wbicb be might well have supposed would not have been made without authority of law.

The statute of limitation bars a portion of the claim. The statute declares “ that every claim against the United States, cognizable by the Court of Claims, shall be forever barred unless the petition setting forth a statement of the claim be filed in the court * * * within sis years after the claim first accrues.”

While the claimant had in Ms own hands the fees and percentage, he had no claim against the United States cognizable in this court. It was only when he paid them into the Treasury that his claim so accrued as to authorize him to sue on it here.

His petition was filed on the 15th of March, 1877, and he can have no judgment for any sum paid by him into the Treasury more than six years before that date. He cannot therefore, recover the amount of $343.69 paid by him on the 22d of May, 1869, nor the three per cent, on $11,815.42 of tonnage-tax paid into the Treasury before March 8,1871.

' He is entitled to recover the fees paid into the Treasury after May 22,1869, as stated in the finding of facts, less $2.30 of tax on his salary, being $5,604.67; and also 71 cents on $23.81 of tonnage-tax paid after March 8, 1871 j mating, together, $5,605.38 ; for wMch sum judgment will be rendered in his favor.  