
    CAMPBELL’S CASE.
    George W. Campbell et al. v. The United States.
    
      On the Proofs.
    
    
      The claimants, in December, 1870, purchase imported linseed still aboard the vessel. In February, 1871, they apply in dueform to the collector to enter the linseed-ealce made from the imported seed for exportation and drawback, under the Act 5th August, 1861. The collector refuses to accept the entry or to take any steps in the matter, on the ground that the provision of law allowing the drawback. has been repealed.
    
    I. Whether this court has jurisdiction of a claim arising under the revenue laws, as one “founded lipón a law of Congress or upon a regulation of an Executive Department(Rev. Stat., § 1059,) where the law provides the claimant with no means of redress, either through the action of an executive officer or the jurisdiction of another court has never been deter-ininSd.
    
      II. This court has jurisdiction in the following cases arising from or connected with the revenue laws: 1. Where the Secretary of the Treasury transmits (under Rev. Stat., § 1063)'a claim which arose under the revenue laws, accompanied by his statement of the facts, and submits to the court questions of law arising therefrom. 2. Where the law declares that upon a party’s doing some defined act he shall he entitled to money, and the right thereto is not dependent upon the action of an executive officer, hut is complete upon the doing of the act. 3. Where the right of a party to money is dependent upon some such decision or action, and the same has been rendered or taken in the party’s favor.
    III. This court has not jurisdiction in the following eases arising under the revenue laws: 1. Where the right of a party to money is dependent upon the decision or action of an executive officer, and .the same has been rendered or taken against the party. 2. Where the right is dependent upon such decision or action, and none has been rendered or taken, but the matter is still in fieri in an Executive Department.
    IV. Of a claim for drawback on exported articles under the Act 5th August, 1861, (12 Stat. L., 292, § 4,) which provides that the drawback shall be “ ascertain eel under such regulations as shall be prescribed by the Secretary of the Treasury” this court has not jurisdiction, there being no fixed right to any specific sum of money until the amount of the drawback is ascertained under the regulations prescribed.
    
      The Reporters' statement .of the case:
    In the month of December, 1870, the claimants purchased, at the city of New York, from importers, a large quantity of linseed which had been imported in that month from Calcutta, India, and at the time was on board the vessels on which it had been imported, from which, after the payment of the duties thereon due to the United States, the said linseed was removed from the vessels to the warehouses of the claimants, whence it was taken to their factory, where it was, without intermixture with any other linseed, manufactured into linseed-oil and linseed-cake, of the latter of which articles there were produced therefrom 3,000 bags, containing 697,870 pounds.
    On the 16th of February, 1871, the claimants had in their possession the said 3,000 bags of linseed-cake, and desiring and intending to export the same from New York to London, for the benefit of the drawback authorized by the fourth section of the “Act to provide increased revenue from imports to pay interest on the public debt, and for other purposes,” approved August 5,1861, and to enter the same for drawback at the office of the collector of customs for the port of New York, duly presented to said collector, and made application, to lodge with, him, an entry of said linseed-cake for export by the bark Lady Elizabeth, which application was accompanied with the certificate and oath required by, and was in all respects in conformity with, the regulations prescribed by the Secretary of the Treasury in pursuance of the requirement of the said fourth section of said act; and the claimants then and there were ready and willing and offered to make said entry in duplicate, and to give the bond with sureties in that behalf required by law, and in all respects to conform to said regulations, so as to entitle them to. the said allowance of drawback; but the said collector, acting under instructions from the Secretary of the Treasury, given on the 10th of February, 1871, wholly refused to accept the claimants’ entry or bond, or to perform or cause to be performed, in any manner, any act prescribed by said regulations to be done or caused to be done by a collector of customs under the said fourth section of said act.
    Thereafter, on the 27th of February, 1871, the said 3,000 bags of linseed-cake were shipped by the claimants on the said bark Lady Elizabeth, and exported and carried by said vessel from New. York to the port of Loudon, in England, and there discharged and delivered, and no part thereof has been at any time relanded in any port or place within the limits of the United States.
    
      Mr. Joseph H. Choate for the claimants:
    The Court of Claims has jurisdiction in the case. (Kev. Stat., § 1059.) It is a claim founded upon the law of Congress; it is founded also upon regulations of the Treasury Department, and it is founded upon a contract with the Government of the United States.
    The uniform provision of the statute as to drawback, under the tariff acts, has been to give it to the party entitled by the words of the statute, leaving only to the Secretary of the Treasury authority to regulate the mode of its payment. There is no provision or machinery or system of law provided by which a claimant may recover it when wrongfully withheld, as in the case of duties paid under protest. In the latter case, if the Secretary wrongfully refuses to repay, claimant has an action at law, but here, in case of such wrongful refusal, claimant is without a remedy except by application to this qourt.
    
      The case of Kiehols v. The United States (7 Wallace, 122) does not Interfere with the jurisdiction of the court here. That was the ordinary case of duties paid as such without any protest, by reason of which the claimant was never entitled, by common law or by statute, or by any contract, express or implied, to recover the money. The Supreme Court did there deny to this court expressly power to entertain suits prosecuted for alleged errors and mistakes in the collection of duty, as being contrary to the whole theory and policy of the revenue laws, which, the court held, constituted# system provided by Congress for the benefit of those persons who complain of such mistakes, and gives them a complete remedy. Here, however, is no case of mistake, nor a claim for which any remedy is provided under the tariff acts.
    Again, the mischiefs that would result, as viewed by the Supreme Court, if the aggrieved importer, disregarding the provisions in the system designed expressly for his security and benefit, could sue in the Court of Claims, can in no manner be predicated upon the claim prosecuted here for drawback, and unjustly refused by the Treasury Department. The following cases in this court sustain the claim of jurisdiction: Patton v. The United States, 7 O. Cls. B., 362; Daily v. The United States, 7 0. Cls. B., 383; Broulatour v. The United States, 7 C. Cls. B., 564; Shelton v. The United States, 8 0. Cls. B., 487; Kaufman v. The United States, 11 C. Cls. B., 659.
    The case of The Portland Company v. The United States, (5 C. Cls. B., 441,) where jurisdiction of a suit, brought to recover drawback under the internal-revenue laws, was denied by this court, is clearly distinguishable from the present case. Judge Peck, in that case, giving the opinion of the court, held that the case of Nichols v. The United States applied, and deprived the court of jurisdiction, so that it was not open to this court to consider the matter, leaving it no alternative but to dismiss the claim. But Judge Nott, concurring, felt compelled to place the case upon different ground, and held that it was not like the case of Nichols, but-was the case of a party seeking affirmative relief in this court given by an express statutory provision, which at the same time prescribes a special mode of obtaining redress, and designates a particular tribunal as having what the courts have again and again held to be exclusive jurisdiction.
    
      But,- if this distinction between the present case and that of the Portland Company should be held insufficient to distinguish the two cases, we claim that the latter case is substantially overruled by the Kaufman Case and the. others above cited, because the case of drawback, for the enforcement of which no other tribunal than this is provided by law, is in that respect totally different from the case of moneys paid for duties illegally exacted without protest, which may be collected by suit or claim before other tribunals, so that the case of Nichols has no legitimate bearing upon it. To deny jurisdiction is sub; stantially to abrogate the power given to this court to entertain jurisdiction of all claims founded upon acts of Congress, and repeals, to the great prejudice of suitors, that clause of the act establishing this court.
    
      Mr. Horace M. Hastings (with whom was the Assistant Attorney-General) for the defendants:
    The court has no jurisdiction in this case. It falls directly within Nichols v. The United States, decided by the Supreme Court, and Portland Company v. The United States, decided by this court, and within all the cases decided since, down to and inclusive of Kaufman v. The United States, for it is a case arising under the revenue laws concerning drawback, “the manner of 'the allowance and the mode of payment, and all matters in relation to which are subjected to the discretion and judgment of the Secretary of the Treasury, with whom the law seems definitely to have left the power in relation to the whole subject.” (Peck, J.) It is the case of a party seeking* relief at the hands of this court, when the law from which he gains all his rights provides for the administering of such relief elsewhere. (Nott, J.) It is “a case in which the court cannot take a step without having to construe and apply the revenue laws,” (Drake, Ch. J.,) which, it is conceded by every one, even by counsel for claimants, cannot be done here. “It is a question between the Government and an importer-who has paid duties,” (Drake, Oh. J.,) and therefore a question not to be determined by the Court of Claims.- (Nichols v. The United States, 7 Wall., 129-131; Portland Company v. United States, 5 0. Cls. B., 446, 447; Doherty v. United States, 6 id., 94, 95; Patten v. United States, 7 id., 370.) Compare, too, § 171 of the Act July 30, 1S64, (13 Stat. L., 302,) with § 4 of the Act August 5; 1861, (13 Stat. L., 293,) and Treasury regulations, January 22, 1862. (The act of 1861 grants fully as much power and jurisdiction to the Secretary of the Treasury as does the act of 1864.)
    The case, “ arising under the revenue laws,” is, for that reason merely, one of which this court has no jurisdiction. (Nichols v. The United, States, 7 Wall., 129-131; Portland Company v. The United States, 5 O. Cls. R., 446; Doherty v. The United States, 6 id., 94, 95; Jonathan Turner v. The United States, 9 id., 368; Broulatour v. The United States, 7 id., 564, per Loriug, J.) These cases, each and every one of them, without any exception, reservation, or proviso, adjudged and announced the law to be, that any case and all cases “arising under the revenue laws” were not within the jurisdiction of the Court of Claims.
   Drake, Ch. J.,

delivered the opinion of the court:

Upon the foregoing facts the question arises whether this court has jurisdiction of this action.

The claimants rely, as sustaining our jurisdiction of their claim,.upon the following cases decided by this court: Patton’s Case, (7 C. Cls. R., 362;) Daily’s Case, (id., 383;) Broulatour’s Case, (id., 555;) and Kaufman’s Case, (11 id., 659.) We do not regard those cases as having that effect. All of them arose under the revenue laws, but they were of an entirely different character from this.

In Patton’s Case, the question was as to the authority of the Secretary of the Treasury to exact from a collector of internal reven ue the return into the Treasury of a part of his salary which had been fixed by the Secretary, and allowed to the collector in his accounts with the Treasury Department, and which the -Secretary, after the earning of the salary by the collector, attempted to reduce; and we held that the matter was one of contract, and not one of the administration of the revenue laws, and therefore within our jurisdiction.

In Daily’s Case, the claimant sued for a commission directly promised by statute upon purchases of internal-revenue stamps; and our jurisdiction of such a demand was upheld.

In Broulatour’s Case, the claim was for a sum of money deposited with a collector of customs to cover the amount of duty which, on calculation, might by the collector be found due on an invoice of imported merchandise. When the calculation came to be made by that officer it was found that the deposit exceeded the amount of the duty, and we held that we had jurisdiction of an action to recover back the excess.

In Kaufman’s Case, the.aetion was for the amount of an allowance made by the Commissioner of Internal Revenue in favor of the claimant as a refunding to him on an internal-revenue special-tax stamp returned. The allowance was certified to the Comptroller of the Treasury, and nothing remained to be done but the passing of the claim by the accounting-officers of the Department, and the issuing of a warrant for payment. As the action was not brought for the determination of any question which was within the jurisdiction of the Commissioner, and did not seek to have the decision of that officer overruled, but to enforce a decision lawfully made by him, whereby the right of the claimant was, in law, adjudged and determined, the jurisdiction of the court was sustained.

On the other hand, where the right of a claimant was, by law, required to be determined by some executive officer, and it had either been determined against him or was still undetermined, we have held that we have no jurisdiction to overrule the decision already made or to determine the matter here, and, upon the basis of our determination, render a judgment against the Government. (The Portland Company’s Case, 5 C. Cls. R., 441; Dougherty’s Case, 6 id., 90; Turner’s Case, 9 id., 367.)

From this statement of the decisions of this court it will be observed that the question has not arisen here whether the court may, under section 1059 of the Revised Statutes, entertain jurisdiction.of a claim arising under the revenue laws, as one “founded upon a law of Congress or upon a regulation of an Executive Department,” where the law provides the claimant with no means of redress, either through the action of an executive officer or the jurisdiction of some other court; and upon that question we express no opinion. But, as a condensed summary of what has been held in those decisions, we state the following points:

1. Where the Secretary of the Treasury, as in Broulatour’s Case, transmits hither a claim which arose under the revenue laws, accompanied by a statement of the facts in regard thereto, and submits to us the questions of law arising on the facts, the court may take Jurisdiction of the claim.

2. Where the law declares that, upon a party’s doing some defined act, he shall be entitled to money from the Government, and his right thereto is not made to depend upon the decision or action of some executive officer, but is complete upon the doing of the act, the claim for the money may be sued upon in this court.

3. Where, under the law, the right of a party to money from the Government is made to depend upon some such decision •or action, and the same has been rendered or taken in the party’s favor, the claim for the money may be prosecuted to judgment in this court.

4. Where, under the law, such right is made to depend upon such decision or action, and the same has been rendered or taken against the party, this court has no jurisdiction to enforce the supposed right, because the law provides another tribunal for the settlement of the question of right, and there is no power here to review and reverse the action of that tribunal.

5. Where, under the law, such right is made to depend upon such decision or action, and none has been made or taken -in the premises, the matter is still in fieri in the Executive Department, and the supposed right, not having been fixed in the legally-prescribed way, cannot be enforced through the jurisdiction of this court.

Clearly, the present case falls under the last conclusion thus . stated.

The claim is for a drawback, alleged to be due the claimant under the fourth section of the Aet August 5,1861, to provide increased revenue from imports, to pay interest on the public debt, and for other purposes,” (12 Stat. L., 292,) which provides as follows:

That from and after the passage of this act there shall be allowed, on all articles wholly manufactured of materials imported on which duties have been paid, when exported, a drawback equal in amount to the duty paid on such materials and' no more, to be ascertained under such regulations as shall be prescribed by the Secretary of the Treasury: Provided, That ten per centum on the amount of all drawbacks so allowed shall be retained for the use of the United States by the collectors paying such drawbacks respectively.”

Manifestly under this section there could be no fixed right to any specific sum of money as drawback until the amount of the drawback should be ascertained under regulations prescribed by the Secretary of the Treasury.

On the 22d of January, 1862, that officer prescribed regulations under that section, the parts of which bearing on this case are as follows:

1. “To entitle the exporter to such allowance of drawback, he must, at least six hours previous to the putting or lading any of the articles intended to be exported by him for benefit of drawback on board of any vessel or other conveyance for exportation, lodge with the collector of customs for the district from which such exportation is to be made, an entry setting forth his intention to export such articles, and the marks, numbers, and a particular description of the same, with their quantity and value, and designating the manufacturer thereof, the place where deposited, the name of the vessel or other conveyance in or by which, and the port or place to which the same is intended to be exported, and also describing in such entry the material or materials severally from which he claims the articles to have been manufactured, designating when, where, whence, by whom, and in what vessel or other conveyance the same was or were imported, and specifying the quantity and value thereof used in the manufacture. This entry shall, upon presentation, be verified by the oath or affirmation of the proprietor and the foreman of the manufactory in which such articles were made.
2. “ On the receipt of this entry, in duplicate, thus verified, the collector shall examine, or where there is a surveyor at his port shall direct that officer to examine, by himself or deputy, the articles described in the entry, and ascertain whether the same be as stated, and, if so found, mark with some appropriate device or appendage each article or package thereof.
3. “ On the receipt of the surveyor’s return, the collector, if the articles be found to be entitled to drawback, shall transmit to the surveyor the entry lodged with him by the exporter, with direction to have the weight, gauge, measure, or count, as the case may require, of the said articles ascertained and returned, and the same laden for exportation.
4. “ The service of superintending the lading for exportation must in all cases when practicable be performed by the officer who made the original inspection, who will be careful to examine the articles in order to identify them, and upon the lading thereof being completed will make return,” in a prescribed form.
5. “ These proceedings having been had, and the entry with the certificate of lading thereon returned to the collector, the exporter shall, before the clearance of the vessel in which the-exportation is made, take and subscribe an oath,” in a form prescribed.
6. “The exporter shall also give bond to the United States, with two sureties, one of whom shall be the master or other person having charge or command of the vessel or other conveyance in or by which the said manufactured articles are intended to be exported, in a sum equal to the full value of said articles, said bond to be executed before the vessel is cleared at the custom-house, and to be ” in a form prescribed.
7. “ The manufactured articles having been duly laden for exportation, the exporter having taken the prescribed oath and executed the required bond, and the vessel having been duly cleared, the collector, in conjunction with the naval officer, where there is one, shall compute the amount of drawback, to be paid in strict accordance with the results of the investigations made, and at the rates in that behalf hereinafter established or to be established on special application to the Secretary of the Treasury of the United States, and shall grant to the exporter a certificate for the net amount of such drawback in the form annexed, which certificate shall be made payable to such exporter or his order in thirty days from the date of the clearance of the vessel in which the exportation was made.
8. “ These certificates * * * will be paid at maturity by the collector who granted the same, to whom they will be surrendered on payment.”

These regulations show that much was required t<5 be done by the exporter and the officers of the customs before the former could become entitled to be paid a drawback. Not until after all the preliminary steps and acts had been taken and done in accordance with those regulations could the claimants have acquired alegal right to demand and receive the collectors’ “ certificate for the net amount of such drawback;” and without that certificate their right to the drawback was but inchoate, aiid incapable of completion in any , other way than those regulations prescribe.

The claimants, however, insist that as they -took the initial step toward establishing their right in the premises, and the collector, acting under instructions from the Secretary of the Treasury, refused to take or allow to be taken any step whatever under those regulations, they are not thereby cut off from recovering here ajudgment for the amount to which they would have been entitled if all the required steps had been taken. This position is not tenable, for the following reasons:

1. The drawback was a mere gratuity proffered by the Government, imposing no legal obligation upon the Government until the exporter’s right thereunto should be ascertained and established in the manner prescribed by law.

2. The ascertainment and establishment of that right, was intrusted by law and regulations to certain executive officers, and not to the judiciary.

3. If those officers, for whatever reason, have refused or failed to act in the premises, that confers no authority upon this court to exercise functions delegated to them, and declare a right in the claimants which the law and regulations require to be declared by those officers in a prescribed way, and do not authorize to be declared by any other officers, or in any other w&y. j

For want of jurisdiction in this court the petition must be dismissed.

Peck, J., was of the opinion that the court had jurisdiction.  