
    HENRY A. V. POST v. THE UNITED STATES.
    [No. 15598,
    Congressional.
    Decided December 1, 1913.]
    
      On the Proofs.
    
    A bill pending in Congress providing for the payment of $50,383.46 to Henry A. V. Post individually, and as liquidating partner of H. A. V. Post and others who composed the late firm of Clark, Post & Martin, for refund of import duties paid by them in excess of the duties imposed by law on steel blooms imported by said firm, was by the United States Senate referred to the court to be proceeded with in accordance with section 151 of the Judicial Code. Instead of requesting the court to certify the findings of fact to Congress the plaintiff seeks judgment in the case under said section, 36 Stat. L., 1135-A138, and the act of January 9,1903,32 Stat L., 764.
    
      I.Section 151 of the Judicial Code provides that in cases referred thereunder that if the court “has jurisdiction to render judgment or decree thereon it shall proceed to do so.” This provision of the statute has been many times before the court and it has uniformly been held to be mandatory.
    II.Under the act of January 9, 1903, 32 Stat. L., 764, the plaintiff had but one right of action and it embraced all the illegal exactions made by the Government on any and all importations the firm had made, and it could not be split or severed.
    III.Where claims are withdrawn or withheld from the consideration of the court in a prior action and the former judgment is plead, it must appear that the cause of action formerly considered was capable of severance, or the rule of res judicata will apply.
    IV. The fundamental basis for the determination of res adjudicata is the idea of repose. It intervenes to prevent a multiplicity of suits and attaches permanent stability to the judgment rendered in a given controversy and covers every point involved.
    V. Where a suit is brought by virtue of a reference under section 151 of the Judicial Code and the court refuses to enter judgment as requested, it will find the facts and report them to Congress as in other congressional cases.
    
      The Reporter’s statement of tbe case:
    The following are the facts of the case as found by the court:
    I. The claimant is a citizen of the United States and a resident of Babylon, N. Y.
    II. From and including the 1st day of July, in the year 1879, to the 31st day of October, in the year 1881, the claimant and Archer N. Martin, together with the firm of E. W. Clark & Co. (which latter firm was composed of Clarence H. Clark, Frederick S. Kimball, Frederick J. Kim-ball, and Sabin W. Colton, jr., as partners), were partners doing business together at 30 Pine Street, in the city of New York, under the firm name and style of Clark, Post & Martin.
    III. Between July 1, 1879, and October 31, 1881, the said firm of Clark, Post & Martin imported and entered at the port of New York goods known as steel blooms of the value of four hundred and seventy-two thousand five hundred and sixty-seven ($472,567) dollars and at the port of Philadelphia goods known as steel blooms of the value of twenty-three thousand five hundred and sixty-seven ($23,567) dollars, making a total value of four hundred and ninety-six thousand one hundred and thirty-four .($496,134) dollars.
    
      IV. Of such importations, steel blooms of the value of one hundred and sixty thousand four hundred and five ($160,405) dollars were imported on joint account with the Springfield Iron Co. and the balance, or steel blooms of the value of three hundred and thirty-five thousand seven hundred and twenty-nine ($335,729) dollars, were imported ■for the individual account of Clark, Post & Martin.
    V. The physical constitution of steel is a crystalline condition. In the process of manufacture molten steel is cast into a mold and forms an ingot. The ingot is then reheated and rolled or hammered until it assumes the desired shape, and is thereby condensed and improved in quality, the crystals being broken up or made smaller or elongated, while at the same time oxidation takes place. It is cut into specified lengths so as to secure as nearly as possible the requisite weight of material. In this new form the steel becomes known as a bloom, a well-known article of trade and commerce, and is developed by further rolling or hammering into various forms, large or small, according to the purpose for which it is intended. Should the bloom be elongated by further rolling or hammering, it becomes known to the trade as bar steel, though no chemical change has taken place in its constitution, it being merely reduced to another shape. Blooms intended to be converted into rails for railroads come in form about 4 feet long and about 6 or 7 inches square at the ends and weighing about 600 pounds. In their development definite dimensions and weights are sought to be attained. The further process of converting the bloom into a rail is to reheat it and do nothing more than roll it until it is sufficiently reduced in cross section and to the form intended and lengthened to the desired number of feet, when the ends are trimmed off.
    VI. All the said importations were commercially known as steel blooms or blooms of steel, and were rough masses of steel approximately about 7 inches high, 7 inches wide, and 6 or 7 feet in length.
    They are suitable only for use as raw material (steel) from which articles manufactured of steel, or of which steel is the component part, can be made. As such raw material they are suitable for the manufacture of a variety of articles, such as steel rails, steel beams, steel axles, and so forth. As such, raw material they are also suitable to be rolled or hammered down into other forms of the raw material, steel, such as billets, bars, and so forth, which are suitable to be manufactured into a variety of smaller articles of manufacture composed of steel or of which steel forms a component part.
    Steel is imported in a variety of forms, such as ingots, blooms, billets, bars, coils, sheets, and so forth.
    Each form of the raw material, steel, is adapted to be used in the manufacture of a special class of articles. For example, steel ingots are adapted for manufacture into guns, armor plate, and sometimes rails. Steel blooms are adapted to be used in the manufacture of rails, beams, axles, etc. Steel billets are adapted to be used in the manufacture of lighter weights of rails, etc. Steel bars are to be used in the manufacture of small tools, etc. Steel sheets are adapted to be used in the manufacture of shovels and goods of that character, and in making the ingots, blooms, billets, bars, sheets, etc., they are usually made in such sizes ae to be best adaptable for sale to the special trades which use them as raw material.
    VII. Prior to the time of these importations the railroads of this country had been laid with iron rails, and because of the heavy traffic which had begun and the consequent wear and tear it had been decided by the leading railroads to re-lay their tracks with steel rails. This caused a large demand for steel and caused the said importations. The steel industry was then controlled by the Bessemer interests, and these importations brought competition against them.
    VIII. In the year 1879 steel blooms were a new article of commerce, and on October 22, 1879, a conference was had at the Treasury Department in Washington at which were present representatives of the said importers and representatives of the said American manufacturers or Bessemer interests. The importers claimed that the correct rate of duty was 30 per cent ad valorem, while the Bessemer interests claimed that the true rate was 2\ cents per pound, or about 200 per cent ad valorem.
    IX. During the years 1879 to 1881, inclusive, merchandise classified as “steel in ingots, bars,” etc., “valued at seven cents per pound or less” was dutiable at 2\ cents per pound, or about 200 per cent ad valorem.
    
      X.' During the years 1879 to 1881, both inclusive, the Treasury Department had power to increase the rate of duty by a reclassification.
    XI. The lawful duty on the said steel blooms was thirty per cent ad valorem, that being the duty fixed by section 2504 of the Revised Statutes of the United States, page 466, edition of 1878, for “steel in any form not otherwise provided for.”
    XII. The officers of the United States demanded and exacted from the said firm of Clark, Post & Martin upon such importations a duty amounting to 45 per cent ad valorem, and received from the said firm seventy-four thousand four hundred and twenty and AyV ($74,420.10) dollars of import duties in excess of the legal duties on said steel blooms so as aforesaid imported by the said firm.
    XIII. The steel blooms so imported as aforesaid for the individual account of the said firm of Clark, Post & Martin were shipped directly to the rolling mills and were there rolled in steel rails for the account of the said firm, which were sold at current market prices, and as the result of all the said importations made by the claimant’s said firm during the said years the said firm suffered a loss.
    XIV. At the time of paying the said 45 per cent duty said firm believed that the correct rate of duty was'30 per cent ad valorem.
    XY. The said importers, including • the claimant herein, did not at the time of the payment of said duties make formal protest against the exaction of the said illegal rate of duty.
    XVI. The imposition of a rate of 2| cents per pound upon such importations would have resulted in a heavy financial loss on the said importations.
    XVII. After the payment of the said duty by the said firm as aforesaid, it was held in the United States Circuit Court in the Southern District of New York, in a suit brought by Downing v. Robertson, Collector, upon a verdict of the jury under instructions of the court, that this merchandise herein referred to as steel blooms should have been classified as “steel in a form not otherwise provided for,” and dutiable at 30 per cent ad valorem. An appeal from such decision was dismissed by the Supreme Court of the United States-, and the Treasury Department by letter under date of Pebru-ary 11, 1885, directed that there should be no further litigation on the subject.
    XVIII. Thereupon certain importers of steel blooms presented a bill to Congress for their relief,' which bill conferred jurisdiction upon the Court of Claims (notwithstanding any statutory bar of limitation, and notwithstanding the requirements of the statutes as to payment under protest, appeal to the Secretary of the Treasury, and notice to being suit ordinarily in such cases, as prescribed in title 34, Collection of Duties, chapters 6, 7, and 8, Revised Statutes) to hear, try, determine, and render judgment as in an original suit, with the right of appeal as in other cases, the claims of the said importers.
    XIX. The claimant’s said firm was named in this act, but were misdescribed as “Clarke, Post & Martin, Agents for the Springfield Iron Company.” Congress intended by such act to cover the entire claim of the said firm, and it was the understanding of the claimant that the said firm had been provided for therein, individually, as well as on .joint account with the Springfield Iron Co.
    XX. Thereafter, pursuant to the provision of said act, the claimant, as surviving partner as. aforesaid, filed a claim in the Court of Claims of the United States, No. 23355, asking for a refund of the said excess of 15 per cent ad valorem upon all of said importations.
    XXI. The claimant recovered on this claim only to the extent of the importation made on the joint account with the Springfield Iron Co. upon objection made by the Attorney General, acquiesced in by the then attorney for the claimant, that the act did not confer jurisdiction to allow a claim of the said firm on its individual account. Judgment was thereupon rendered in favor of the receiver of the Springfield Iron Co. on a claim filed on his own behalf, No. 23777, for $18,045.57 and in favor of the claimant herein for the sum of $6,015.18.
    XXII. Those importations upon which the claimant has already recovered were of the identical class and character of merchandise as those upon which he is now seeking a recovery, and were made under the identical circumstances as part of the same group of importations.
    XXIII. The claimant did not know until about April 4, 1905, when this objection was made by the Attorney General, that the entire individual claim of his said firm had not been provided for in the said act of January 9, 1903. The findings on his said claim were filed in this court on April 2, 1906.
    XXIV. The claimant thereupon at once caused a new bill to correct this defect arising from this said misdescription to he presented to the Fifty-ninth Congress at its first session (S. 5151). This hill was reported favorably by the Senate committee (Kept. 2538) by a report which found that Congress had omitted to provide for said claim by an inadvertence, and was duly passed by the Senate on April 12, 1906. A similar bill was introduced in the House and referred to the the Committee on Claims, which made no report.
    XXV. The bill was reintroduced before the Sixtieth Congress (S. 763, H. R... 12575) and referred to the Committee on Claims. A hearing was had before the subcommittee of the House committee, who considered the bill favorably, but did not report. The bill was introduced in the Sixty-first Congress (H. R. 16143.) A hearing was had before the subcommittee of the House committee on February 16, 1910, which was reported and ordered printed. No report was made by the House committee. The bill was introduced before the Sixty-second Congress at its second session, S. 4226, H. R. 17323, and came regularly before the Senate Committee on Claims on February 13, 1912, and was on motion referred to this court for findings in pursuance of the provisions of section 151 of the Judicial Code. Thereupon the bill was reintroduced in form to be referred, and was referred, with other claims, to this court for findings on February 22, 1912.
    XXVI. No part of the said excess duties has been paid by the United States or anyone else, except so much as was recovered under said act of January 9, 1903, by judgment of this court, as aforesaid, in the amount of $24,060.75, covering the entries set forth in the findings, of which amount $18,045.57 was recovered on the said joint account by the Springfield Iron Co. and $6,015.18 by the claimant.
    XXVII. The amount of duties paid, as aforesaid, in excess of the duty warranted by law, which have not been recovered from the United States Government as aforesaid, amounts to $50,359.35.
    
      XXVIII. On tbe 31st day of October, in the year 1881, the firm or copartnership of Clark, Post & Martin was dissolved by voluntary dissolution, and thereupon the claimant became the liquidating partner of said copartnership by oral agreement between all the members of said firm, and was and is vested with all the rights, property, and assets of said copartnership and the right to receive and collect the same, including the claim hereinbefore set forth.
    XXIX. The failure to make protest and appeal, as required by title 34, chapters 6, 7, and 8, Revised Statutes, was under circumstances amounting to duress.
    XXX. The claimant is now the owner of the said claim and, except for the statute of limitations and failure to comply with the statutes relating to payment under protest, appeal to the Secretary, and notice of suit as then required by law, would be entitled to a judgment of this court for the sum of $50,359.35.
    XXXI. Under the terms of the act of June 30, 1864, 13 Stats. 205, the claimant, Henry A. V. Post, as surviving and liquidating partner of H. A. V. Post, Archer N. Martin, Clarence H. Clark, Frederick S. Kimball, Frederick J. Kim-ball, and Sabin W. Colton, jr., who composed the late firm of Clark, Post & Martin, paid to the United States the sum of fifty thousand three hundred and fifty-nine and dollars ($50,359.35) excess duties on importations described herein.
    CONCLUSION.
    The claim is not a legal one. It is equitable in the sense that the United States exacted of the claimant sums in excess of the legal rate of duty under the tariff law and retains said sum in the Treasury.
    
      Mr. Marshall McLean, Mr. John H. Hazleton, and Mr. George G. Haselton for the plaintiff. Cleveland, McLean, and Haywood were on the brief.
    
      Mr. J. Harwood Graves, with whom was Mr. Assistant Attorney General Huston Thompson for the defendants.
   Booth, Judge,

delivered the opinion of the court:

The various contentions involved in this case make it somewhat complicated. The question of jurisdiction is of course supreme, and to it the court confines its discussion in this opinion. The claimant, as surviving and liquidating partner of the former firm of Clark, Post & Martin, is now here under a congressional reference in accord with section 151 of the Judicial Code. The claim is for a refund of import duties, illegally exacted by the Treasury Department on certain importations of steel blooms. In 1879 the merchandise imported was a new article of commerce, and under the provisions of the tariff act then in force a dispute arose as to its proper classification for taxing purposes. There was room for the application of three rates of duty, viz, 30 or 45 per cent ad valorem, or a specific duty of 2 J cents per pound. The Treasury Department finally adopted the 45 per cent ad valorem rate, and the claimants paid said rate without protest or objection. Subsequently in the case of Downing v. Robertson, Collector, the court determined that rate illegal and brought the merchandise within a classification calling for a rate of 30 per cent ad valorem, thereby holding the claimants to have paid an excessive tax of 15 per cent ad valorem. The claimants were without remedy to secure a refund of any portion of said excess under any general laws respecting the subject because they had failed to protest or appeal as specifically provided therein. (Secs. 2931 and 3011, R. S.) To relieve this situation and grant what was obviously just and equitable, the Congress on January 9,1903 (32 Stat. L., 764) passed a special jurisdictional act referring to this court, among many others, the claim of the claimant. The claimant’s firm, in the conduct of its business, had made importations of steel blooms on its own account, and other importations conjunctively with the Springfield Iron Co. in conformity with a joint trade agreement with that corporation. The special jurisdictional act of 1903, in specifying the claimant’s firm used this language: “Clarke, Post and Martin, agents for Springfield Iron Company. ” As a matter of fact, Clark, Post & Martin had never been the agents of the Springfield Iron Co., and the importations made by said firm on its own account were greatly in excess of those made in connection with the Springfield Iron Co. according to the petitions filed. The claimant, on July 6, 1903, filed his petition in this court under the special act of 1903 wherein he alleges all the importations made by said firm, both on its own'account and on account of the joint-trade agreement with the Springfield Iron Co.; the petition, covering, in fact, the entire scope of this particular transaction, except an entry or two at the port of Philadelphia. The pleadings, together with the claimant’s first request for findings of fact, conclusively show that no doubt existed as to claimant’s rights to recover under the special act for all the importations the firm had made. The defendants, on March 14, 1906, in a written answer and brief, called claimant’s attention to the fact that the major portion of the excess duties paid by the claimant and the Springfield Iron Co. had been included in a judgment awarded said corporation in a suit brought by it under said act, and also expressly challenged the right of the claimant under the terms of the jurisdictional act to recover for any excess duties paid upon importations made by the firm of Clark, Post & Martin on its own account. On March 15, 1906, the day following the interposition of this . defense, the claimant, through his attorneys of record, amended his requests for findings of fact and for judgment under his petition, adopted the contention of the defendants, and consented to a judgment simply for the balance of the excess duties due said-firm on the importations made by it and the Springfield Iron Co. under said joint-trade agreement, making no further effort to recover for importations made by the claimant’s firm on its own account. The above facts are not disputed, and out of them the claimant erects a contention for a judgment in this case instead of the certification to Congress of the usual findings of fact under the Tucker Act. To sustain this contention claimants rely upon the proviso to section 151 of the judicial code, 36 Stat. L., 1135-1138, which reads as follows:

“Whenever any bill, except for a pension, is pending in either House of Congress providing for the payment of a claim against the United States, legal or equitable, or for a grant, gut, or bounty to any person, the House in which su<3l bill is pending may, for the investigation and determination of facts, refer the same to the Court of Claims, which shall proceed with the same in accordance with such rules as it may adopt and report to such House the facts in the case and the amount, where the same can be liquidated, including any facts bearing upon the question whether there has been delay or laches in presenting such claim or applying for such grant, gift, or bounty, and any facts bearing upon the' question whether the bar of any statute of limitation should be removed or which shall be claimed to excuse the claimant for not having resorted to any established legal remedy, together with such conclusions as shall be sufficient to inform Congress of the nature and character of the demand, either as a claim, legal or equitable, or as a gratuity against the United States, and the amount, if any, legally, or equitably due from the United States to the claimant: Provided, however, That if it shall appear to the satisfaction of the court upon the facts established, that under existing laws or the provisions of this chapter, the subject matter of the bill is such that it has jurisdiction to render judgment or decree thereon, it shall proceed to do so, giving to either party such further opportunity for hearing as in its judgment justice shall require, and it shall report its proceedings therein to the House of Congress by which the same was referred to said court. ” ■

This provision of the statute had been many times before the court, and it has been uniformly held to be mandatory. Stovall v. United States, 26 C. Cls., 226. The intention of the law is clear; by it Congress extended under a congressional reference a forum with jurisdiction to render judgment in favor of the claimant where that jurisdiction had been previously given under general' or special acts in reference to the same subject matter; in other words, if after examination of the subject matter it appears to the court that the claimant might have preferred his claim under existing law and prosecuted the same to judgment irrespective of a congressional reference, he shall be treated as having done so. As was said in the Stovall case supra, "Instead of restricting its action to the functions of a jury and finding the facts in the form of a special verdict for the action of Congress, the court is required to act judicially and determine the legal rights of the parties in a final judgment.”

Whatever jurisdiction the court possesses to award judgment in this case was conferred by the act of January 9, 1903. We must again recur to that statute and treat the petition filed herein as identical with respect to powers of adjudication as the petition filed under the same. Inasmuch as the defendants rely upon a plea of res adjudicata, which is always a meritorious defense, a critical examination of the former proceedings filed under the act of January 9, 1903, and which will be hereafter designated as case No. 23355, is indispensable.

Under the express terms of the act of January 9, 1903, the claimant acquired a cause of action. The statute was remedial and manifestly intended to right an apparent wrong. The claimant did not, however, acquire a right to prefer two claims. The language of the statute either limited the jurisdiction of the court to the copartnership claim of Clark, Post & Martin or the claim of Clark, Post & Martin, agents for Springfield Iron Co. The claimant could not possibly recover in both capacities. Treating, then, the words "agents for Springfield Iron Co.” as descriptio personse we have the undisputed assertion of the claim of the copart-nership of Clark, Post & Martin; as a matter of fact, the allegations of the petition filed in case No. 23355 specifically set forth all the importations made by said copartnership, both on its own account as well as on account of the joint trade agreement with the Springfield Iron Co. That was the claim preferred under the special jurisdictional act of 1903 and fully prosecuted thereunder until severed in response to the defense interposed by the Government as hereinbefore noted. The judgment of the court in case No. 23355 is evidently a consent judgment. It shows upon its face to have been rendered in accord with the agreed findings of fact and covered only the amount of excess duties paid by the copartnership upon the joint importations made by it and the Springfield Iron Co. The record in case No. 23355 is overwhelmingly convincing that the court’s attention was never directed to the supposed limitations of claimant’s right to prosecute a claim on its own account. That issue was never presented; and if that question alone determined the present issue, it would be one of easy solution. The claimant, however, had but one right of action under the act of January 9,1903, and that right, as is now conceded, was a right to prosecute the claim of Clark, Post & Martin, a copartnership. This cause was entire. It embraced all the illegal exactions made by the Government on any and all importations the firm had made, and under the statute covered the entire scope of the transaction and could not be split or severed. While it is true that claims withdrawn or withheld from the consideration of the court in a prior action, where the former judgment is plead in bar, are not res adjvdicata, it must likewise appear that the cause of action formerly considered was capable of severance and susceptible of being withdrawn. Black on Jvdgments, vol. 2, p. 621. The fundamental basis for the doctrine of res adjvdicata is the idea of repose. It intervenes to prevent a multiplicity of lawsuits, and attaches permanent stability to the judgments rendered in a given controversy and covers every point involved in it. As before observed, under the act of January 9, 1903, Clark, Post & Martin had but one cause of action. That cause was submitted to the court, and upon it judgment was rendered in the name of Clark, Post & Martin. This is particularly true in view of the fact that the copartnership was never at any time the agents of the Springfield Iron Co., never asserted such a claim, and in this record expressly repudiate it. Case No. 23355 having gone to judgment, no motion for a new trial made, said judgment having been appropriated for and accepted, that controversy is at an end. Cyclopedia of Law and Procedure, vol. 23, p. 436.

The case of Brandon v. United States, 46 C. Cls., 559, is relied upon as another ground for excluding jurisdiction to hear this case. There is absolutely no similarity as to the two cases. The Brandon case involved the construction of an act which in terms provided both a right and a remedy for the suitor. In the Brandon case the bill referred in terms a claim, but in subject matter what was not a claim. No right existed prior to the passage of the captured and abandoned property act of March 12, 1863, 12 Stat., L., 820, and the amendatory act of July 2, 1864, 13 Stat. L., 375, to recover the proceeds of cotton captured and sold by the United States military authorities during the Civil War. The property itself was hable to confiscation, and even after the war the right and remedy were extended only to loyal owners. This subject is fully discussed and all the citations incident thereto set forth in the Brandon opinion. The act of January 9, 1903, is in nowise similar to the statute discussed in the Brandon case; the former act, after making special provisions with respect to protest, statute of limitations, etc., extended to the claimants a forum where their claims might be adjudicated. It was expressly remedial and extended only to the remedy. That' the claim itself, in so far as it might be a just demand against the Government, was in nowise affected is manifest from the most liberal exceptions as to possible defenses under other laws. The right to a claim clearly prevailed; the remedy had been lost through the omission of claimants to follow the details of existing law respecting its recovery. The Brandon case was limited to a discussion of a special class of cases, not claims, respecting a special fund in regard to which the court was empowered to adjudicate as to special claimants. There was no other law under which these proceedings might have been had, and Congress limited both the character of claimants and the time of presentation of claims. Nothing seems plainer than that Congress intended, by the fourteenth section of the Tucker Act, to refer to this court all claims which in a strict sense are not legal claims; that is, not susceptible to prosecution under positive law, just as the one in suit, for it expressly grants jurisdiction to the court to render judgment in all cases where, under a Tucker Act reference, the court finds, upon investigation, it has jurisdiction so to do under positive law, thereby doing for the pleader what he might well have done by coming in under our general jurisdictional act. This authority heretofore discussed leaves Tucker Act references applicable only to that class of claims without established legal remedies and as to which Congress reserves its right of final judgment. The court, in considering the Brandon case, had no thought of its application to cases of this character, for in the opinion the court said: “Congress, by the act of 1863, limited the rights of loyal owners thereunder in the Court of Claims and, by the act of 1868, declared that the remedy therein given in said court should be exclusive of all others; so that claims for the proceeds of captured property, under the act of 1863 and by reason thereof, stand on a different basis even from those originating as acts of war.” In this case Congress was not, by the act of January 9, 1903, dealing with a special fund collected during hostilities and long retained by the Government under its war power, and as to which the courts of the land had said it had both a legal and equitable right. The situation is the reverse; Congress was granting relief to a class of claimants from whom it bad made monetary exactions under misapprehension of its authority so to do. The Government had in its possession funds of this claimant which., under judicial decision, did not properly belong to it, but which the claimant was unable to retake because of certain technical omissions fatal to its right to prosecute its claim. The remedy had been lost, the claim remained, and, as the subject-matter of the bill fully covers this claim, it is sufficient to refer it to the court.

The findings will be certified to Congress, together with a copy of this opinion. It is so ordered.

Howev, Judge,

concurs:

My reason for concurring in the conclusion rests on the broad ground that there was an exaction of excessive duties as an ad valorem tax on the steel blooms, and this excess over and above the legal rate went into the public treasury, and in foro eonscientiae belongs to the firm making the payment.

But there was no duress and because of that my assent is withheld from the findings. For reasons which may hereafter appear I am unable to concur in some of the reasons assigned by the majority of the court for the conclusion.  