
    CHARLES W. DURANT v. THE UNITED STATES.
    [No. 11431.
    Decided May 8, 1893.]
    
      On the Proofs.
    
    'The Treasury regulations allow a drawback of 3| cents per pound on “refined crystalline sugar.” In June, 1875, D. & Co. export 25 barrels and are allowed and paid this drawback. In November they export 3,500 hogsheads of the same sugar and are allowed only 3 cents, which they accept under protest. The sugar so exported is known to the trade as “Standard A, Coffee White.” It is a white crystalline sugar, but not stove-dried, having more moisture than stove-dried. Before making the shipments D. & Co. are assured by the auditor of the custom-house that it will be entitled to the rate of “refined crystalline. ”
    
    I.This court has jurisdiction of a ease to recover an unpaid drawback on exported sugar, to which the claimant was entitled under the Revised Statutes (§ 3019) and the regulations of the Treasury Department.
    II.Where the right of a party to recover rests upon a statute and does not require the action of a revenue officer to determine the right or fix the amount, the case is not a revenue case within the intent of the decision in Nichols (7 Wallace R., 122). Being founded on a law of the United States it is within the jurisdiction of this court. The cases relating to jurisdiction reviewed.
    III.In 1875 the sugar known to the trade as “Standard A, Coffee White” came within the classification of the Treasury regulations then existing of “refined crystalline sugar,” and was entitled to a drawback of 3| cents per pound.
    
      The Reporters’ statement of tbe case :
    Tbe following are tbe facts of tbe case as found by tbe court:
    I. Charles Wrigbt Durant and Charles Wright Durant, jr., tbe original petitioners and claimants herein, were, at all tbe times mentioned in tbe petition, to wit, from tbe 26th day of March, 1875, to tbe 15tb day of July, 1876, copartners in trade, carrying on business as sugar refiners in tbe city of New York, under tbe firm name and style of C. W. Durant & Son.
    II. At all tbe times mentioned in tbe petition, to wit, from tbe 20th day of March, 1875, to tbe 15th day of July, 1876, one William T. Graff resided in tbe city of New York, and was in tbe employ of tbe claimants as an assistant bookkeeper and assistant salesman, and acted as their agent ’and under their direction and authority in the exportation of the sugar referred to in the petition herein, and upon which the drawback is claimed, which is the subject of this action.
    III. The following are the regulations, orders, and action of • the Treasury Department.
    ‘‘Washington, March 27, ’75.
    
    “Sro: Drawbacks will be allowed on the following sugar, syrup, etc., upon which the new rate of duty has been paid, as follows:
    “Kef. crystalline sugar, 3fe. per lb., less 1 per cent retention.
    “lief. B and 0 lower grade sugar, 2¿c. per lb., less 1 per cent retention.
    “Syrup of sugar (syp. molasses), 6|c. per gal., less 10 per cent.
    “On the Product oe Molasses.
    “N. E. rum, 6^0. per gal., less 10 per cent.
    “Syrup from molasses, 5c. per gal., less 10 per cent.
    “Sugar from do l¿c. per lb., less 10 per cent.
    “Pboduct oe Melado.
    “Sugar product of melado, 2Jc. per lb., less 1 per cent.
    “Syrup “ “ 5§o. “ gal.,- 10 “
    “Bespe’t,
    “B. H. Bristow, Secretary P
    
    “Treasury Department,
    “ Washington, D. G., Oat. 9,1875.
    
    “Sir: In view of the statements made to the Department from respectable sources alleging an excess in the present rate of drawback on refined hard sugars, the product of imported crude sugars, and of the fact that these statements are in great degree supported by reports received from officers of the-Department, the existing rate of drawback on such 'hard-sugars is hereby annulled and the provisional rate of 3¿- cents per pound, subject to the legal retention of 1 per centum is. established from and after the receipt of this order.
    “This rate will be subject to revision when the investigation which the Department will immediately institute shall have been concluded, and if the rate of drawback then established shall be greater than that now provisionally made, all parties interested will be entitled to receive the surplus, to be calculated on the intermediate shipments.
    
      “If, on the contrary, the rate fixed shall be smaller than that now allowed, the deficiency’will in the cases of persons engaged in the trade be retained from their subsequent shipments.
    “Very respectfully,
    “B. H. Bristow,
    “ Secretary.
    
    “ C. A. Arthur, Esq.,
    
      “Collector of Customs, New York.”
    
    “ Washing-ton, D. 0., Oct. 23, 1875.
    
    “To Collector oe Customs,
    
      New York:
    
    “ Eestore former rates of sugar drawback on all goods purchased for export at any time, and shipped pending the investigation.
    “The other part of the committee’s recommendation will be considered.
    “Chas. F. Conant,
    
      “Acting Secretary.”
    IV. On or about the 15th day of June, 1875, the claimants, through William T. G-raff, acting as their agent, as aforesaid, exported to the Dominion of Canada 25 barrels' of refined ' sugar prescribed as white crystallized sugar, wholly manufactured by the claimants from imported sugar, on which the new rate of duty referred to in the circular of the Secretary of Treasury dated March 22,1875, and set forth in the petition herein, had been paid.
    V. The claimants were allowed and -paid by the Treasury Department on or about September 24, 1875, drawback at the rate of 3| per cent per pound, less 1 per cent retention on the sugar exported by them to Canada, on or about June 15,1875, as set forth in the foregoing fourth finding of fact. The sugar exported by petitioners .to Canada subsequent to September, 1875," upon which the claim for drawback herein has arisen was refined sugar of the same grade and kind as that exported by claimants in June, 1875, and referred to in the fourth finding of fact. On several occasions between the 8th and 25th days of November, 1875, the claimants exported to the Dominion of Canada 3,500 barrels of refined sugar, as follows, November 9, 11, 16, 20, and 24.
    VI. The sugar exported by claimants to Canada in November, 1875, was manufactured by claimants. The' sugar exported by claimants to Canada in November, 1875, was wholly manufactured by claimants from imported sugar upon which the new rate of duty had been paid. The sugar exported by claimants to Canada in November, 1875, was sold by claimants to the firm of Bailey & Bunting, of Clifton, Canada.
    VII. Previous to making the November shipments the claimants were assured by the auditor of the custom-house in New York that until a change of rate standard A coffee white sugar would be entitled to the same rate as the refined crystalline. The 3,500 barrels of sugar weighed 1,080,326 pounds. The drawback was paid on the 1,080,326 pounds of sugar exported by claimants to Canada in November, 1875, at the rate of 3 per cent less 1 per cent retention, and such payment was made on February 7,1876. The drawback on the sugar exported by claimants to Canada in November, 1875, at 3| cents per pound amounted to $40,107.10. The drawback paid by the Government at 3 per cent less 1 per cent off retention amounted to $32,085.72, making a difference of $8,021.38.
    VIII. The claimants served upon the collector of the port of New York a protest against the allowance of the drawback at the rate at which it was paid.
    IX. During the years 1875 and 1876 the following regulation of the Secretary of the Treasury- was in force :
    “Article 829. The rates of drawback to-be allowed on particular articles will be indicated from time to time by the Secretary of the Treasury.
    “Application for drawback allowances on articles not so enumerated will be transmitted to the Secretary of the Treasury, with a recommendation in each case from the collector of the port from which the exportation was made. Whereupon such application shall be considered and the rate fixed.
    “Collectors in computing the amount of drawback to be paid will take care to examine the export entry with reference to the known average yield of the material, and in case of suspected fraud will report to the Secretary of the Treasury for instructions.”
    X. Coffee A sugar was a brand known to the trade and was a refined crystalline sugar, and belongs to the highest grade known. By the regulations in force at the time of the exportation the allowance of 3f cents per pound was allowed on the kind of sugar exported by the said firm. The sugar differed from stove-dried sugar in that it contained more moisture, otherwise it was pure sugar.
    XI. The original claimants atand before the time of payment claimed that they were, under the regulations of the Secretary, entitled to be paid a drawback on the amount of sugar exported, at the rate of 3£ cents per pound, and the amount paid by them was received under protest. After the exportation the Secretary decided that it did not come within the regulation of March 27,1875, and a drawback of 3 cents was allowed.
    
      Mr. Carlisle Norwood for the claimant.
    The Court of Claims has jurisdiction of the action. [Campbell & Thayer v. United States, 107 U. S. R., 407.)
    The term “refined crystalline sugar” used in the regulation of the Treasury Department, dated March 27, ’75, and shown at p. 212 of the record herein, must be understood according to the acceptation given to it by commercial men at the time of the issuing of the regulation. (Arthur v. Gumming, 91U. S. R., 362; Arthur v. 3forrison, 96 U. S. R., 108; United States v. 112 Caslcs of Sugar, 8 Peters, 276; Mliott v. Swartwout, 10 Peters, 137,151. See also American Net and Twine Co. v. Worthing-ton, 141 U. S. R., 468, and cases cited.)
    In Arthur v. Camming (16 Otto p. 362, S. L. C. P. Co., Bk. 23, p. 438). The meaning of the terms “oil cloth foundations” and “floor cloth canvas” was under consideration. Mr. Justice Swayne, in addressing the opinion of the court, said : “The rule to be followed in the construction of revenue statutes in cases like this is well settled in this court. It is that the descriptive terms applied to articles of commerce shall be understood according to the acceptation given to them by commercial men in our own ports at the time of the passage of the act in which they are found.” (United States v. Chests of Tea 9 Wheat, 430i; Mliott v. Swa/rtwout, 10 Pet., 151. Curtís v. Martin, 3 How., 106.)
    In the case at bar the quality of the sugar exported had been repeatedly passed upon by the custom-house authorities and was found “to be as represented.”
    
      Mr. F. P. Dewees (with whom was Mr. Assistant Attorney-General Cotton) for the defendants.
    The Supreme Court has decided in NiehoVs Case (7 Wall., 122) that cases arising under tbe administration of tbe revenue laws are not witbin tbe jurisdiction of tbe Court of Claims. In that case tbe question presented arose out of tbe laws regulating tbe payment of duties on imported merchandise.
    Under tbe authority of tbe decision of tbe Supreme Court in Kiehol’s Case, supra, this court held, in Portland Company’s Case (5 O. Cls. R., 412), that tbe Court of Claims has no jurisdiction to recover a drawback under tbe internal-revenue laws. Under same authority, this court held that where an importer’s goods were sold for tbe nonpayment of duties, and be sues to recover tbe balance of tbe proceeds of sale, tbe amount being disputed, it is a case under tbe revenue laws of which this court has no jurisdiction. (Doherty’s Case, 6 0. Cls. R., 91.) An allowance for leakage of distilled spirits, given by statute and Treasury regulations and refused by Commissioner .of Internal Revenue, was under same authority held.to be witbin the jurisdiction of this court. (Turner’s Case, 9 C. Cls. R., 367.)
    But, says bis honor, tbe present Chief Justice, in tbe Kauff-man Case (11 0. Cls. R., 670, affirmed by Supreme Court, 96 U. S. R., 567): “In all these cases tbe questions in controversy were by law required tobe determined by other tribunals than this court, and they bad acted adversely to tbe claimants.” But it was further held in that case that, where tbe Commissioner of Infernal Revenue bad determined tbe questions that were witbin bis jurisdiction, awarded an allowance, and filed bis certificate thereof with tbe Comptroller of tbe Treasury, an action for tbe recovery of an allowance so made is not for tbe determination of any question witbin tbe jurisdiction of tbe Commissioner of Internal Revenue, and therefore this court has jurisdiction.
    Under section 1059, Revised Statutes, this court has jurisdiction of claims arising under a law of Congress. But,if alawof Congress designates another tribunal or an officer of tbe Government or mefihod of settlement, tbe course prescribed by law must be strictly pursued and this court is without jurisdiction. When tbe right to decide questions of fact or law is conferred upon another tribunal, tbe decision of such tribunal is final, and this court is without jurisdiction to review it. (Meade Administrator’s Case, 2 C. Cls. R., 224; Chorpenning’s Case, 3 0. Cls. R., 140 ; Bradon’s Case, 16 C. Cls. R., 405; Atocha’s Case, 17 Wall., 444.) Where questions of fact are submitted by law to tlie decision of an executive officer of the Government, no appeal can be taken from Ms decision to tMs court. If, how-over, any right be conferred by law, such law or rig'ht can not be defeated by the failure of an officer to perform merely ministerial duties.
    This court will not review the action of such officer and allow claims which he has rejected, although it will entertain .suits to enforce his allowances. Whether- such action can toe reviewed for fraud or mistake even by the Government is questioned. Many decisions of this court have been made upon the exclusive powers of an executive officer specially conferred by statute, among which are Kaufman (11 C. Ols. E., ■659; 96 U. S. E., 659); Boughton (12 O. Ols. E., 336); Campbell <12 0. Cls. E., 475; 107 U. S. E., 407); Be Cells (13 O. Ols. E., 135); Boughton (13 0. Ols. E., 290); MoKmght (13 C. Cls. E., .308; 98 U. S. E., 179); Woolner (12 O. Ols. E. 363); Ramsey <14 O. Ols. E. 372); Briggs (15 O. Ols. E., 54); Greencastle Kational Banlc (15 O. Cls. E., 229); Savings Bank (16 0. Ols. E., 344) ; Barnett (16 O. Ols. E., 518; 104 U. S. E., 728); Dunnegan (17 0. Ols. E., 257); Davis (17 0. Ols. E., 257); Bofinger (18 O. Cls. E., 165); Mixon (18 0. Ols. E., 454); Kayeraft (22 Wall., 81)-; Seat 18 O. Cls. E., 466); Ridgway (18 0. Ols. E., 715); Lybrandt (19 C. Ols. E., 465); Koffheimer (20 O. Gis. E., 373); PerMns (20 0. Ols. E., 443; 116 U. S. E., 483); Boehm (210.-Ols. E., 294); Davidson (21 0. Ols. E., 300); Marshall (21 O. Ols. E., 309).
    In Marshall’s Case, supra, the court approve the construction of act of February 28, 1867 (14 Stat. L., 417), authorizing the Secretary of War to refund from commutation money the •amount (not exceeding $300 in any one case) paid by a person drafted, etc., contended for by claimant, that this “ court might ■entertain a suit to enforce the decision of the Secretary of War, but not to revise or reverse it.”
    Plaintiff cites and relies upon Campbell’s Case (107 U. S. E., 407). The decision in the Campbell case in no way applies to the facts in the case at bar. The collector of the port never refused to give them a drawback certificate. He refused to classify the sugar exported as requested by the exporter. Both the exporter and the collector of the port of New York referred the question at issue to the Secretary of the Treasury. The goods- exported were not classified in the regulations. After investigation the Secretary of the Treasury ascertained the proper drawback to be at the rate of 3 cents per pound, which was paid and received by plaintiffs under protest. The ascertainment of the amount of drawback under the law is in no respect a ministerial duty on the part of the Secretary. It is a duty imposed on him by law and his jurisdiction is exclusive and without any appeal to this court. There can be no question, under the authority of the regulation that, after export under article 829 of Treasury Regulations the Secretary of the Treasury may ascertain the amount of drawback, provided the drawback had not already been ascertained.
   Weldon, J.,

delivered the opinion of the court:

The plaintiff as surviving partner of the firm of Charles Wright Durant and Charles Wright Durant, jr., seeks to recover from the defendants certain alleged drawbacks due said firm upon the shipment of sugar in the year 1875 .from the city of New York to the Dominion of Canada. ' The facts show that during that year the firm were engaged in the business of refining sugar in the city of New York, and during said time shipped, from the 9th day of November to the 25th day of November, inclusive, 3,500 hogsheads of refined sugar, amounting in the aggregate to 1,080,326 pounds. The sugar exported was wholly manufactured by said firm from imported sugar upon which the new rate of duty had been paid. The drawback was paid on the 1,080,326 pounds, at the rate of 3 cents per pound less 1 per cent retention. It is insisted that a payment of 3| cents per pound should have been made, and that upon a proper accounting the defendants owe the claimant the sum of $8,021.38. If the contention of the claimant be true in law, that is the amount to which he is entitled.

The liability of the defendants turns upon the questions, first, whether the court has jurisdiction of the claim, and, second, what was the rate of drawback in force at the time the shipments were made as to the kind and quality of sugar exported by the claimant.

Covering the period of the exportation, the following are the orders, regulations, and action of the Treasury Department:

“Washington, March 27, ’75.
“Sib: Drawbacks will be allowed on tbe following sugar, syrup, &c., upon which the new rate of duty has been paid, as follows:
“Bef. crystalline sugar, 3fc. per lb. less 1 per cent retention.
“Bef. B and C lower grade sugar, 2Jc.per lb. less 1 per cent retentiou.
“Syrup of sugar (syp. molasses), 6Jc. per gal. less 10 per cent.
“On the Product oe Molasses.
“N. E. rum, 6f§-c. per gal. less 10 per cent.
“ Syrup from molasses, 5c. per gal. less 10 per cent.
“Sugar from do l^c. per lb. less 10 per cent.
“Product oe Melado.
“Sugar product of melado, 2¿c. per lb. less 1 per cent.
“Syrup “ “ 5§c. “ gal. “ 10 “
“Bespe’t,
“B. H. Bristow, Secretary
“Treasury Department,
Washington, D. C., Get. 9, 90.
“Sir: In view of the statements made to the Department from respectable sources, alleging an excess in the present rate of drawback on refined hard sugars, the product of imported crude sugars, and of the fact that these statements are in great degree supported by reports received from officers of the Department, the existing rate of drawback on such hard sugars is hereby annulled and the provisional rate of- 3£ cents per pound, subject to the legal retention of lper centum, is established from and after the receipt of this order.
“This rate will be subject to revision when the investigation which the Department will immediately institute shall have been concluded, and if the rate of drawback then established shall be greater than that now provisionally made, all parties interested will be entitled to receive the surplus, to be calculated on the intermediate shipments.
“If, on the contrary, the rate fixed shall be smaller than that now allowed, the deficiency will in the cases of persons engaged in the trade be retained from their subsequent shipments.
“Yery respectfully,
“B. H. Bristow,
“Secretary.
“C. A. Arthur, Esq.,
Collector of Customs, New Yorh.

The third of such regulations was dated the 23d day of October, 1875, and was as follows:

“Washington, D. 0., Oct. 23, ’75.
“To Collector oe Customs,
“■New Yorlc :
“Bestore former rates of sugar drawback on all goods purchased for export at any time, and shipped pending the investigation.
“The other part of the committee’s recommendation will be considered.
“Chas. F. Conant,
“Acting SecVy?

The statutes applicable to the claim and upon which the suit is brought in connection with the regulations are as follows:

“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. Ten per cenbum on the amount of all drawbacks so allowed shall, however, be' retained for the use of the United States by the collectors paying such drawbacks.” (B. S., sec. 3019.)

Also,

“An act to further protect the sinking fund and provide for the exigencies of the Government, passed March 3, 1875 (Statutes of U. S., 1874 and 1875, oh, 127, sec. 3, Yol. 18, B. S., p. 340.)
“That of the drawback on refined sugars exported, allowed by section three thousand and nineteen of the Bevised Statutes of the United States, only one per centum of the amount so allowed shall be retained by the United States.”

The findings show that on the 15th of June, 1875, the firm exported to the Dominion of Canada 25 barrels of refined sugar as white crystalline sugar, wholly manufactured by the claimants from imported sugar, on which the rate of duty referred to in the circular of the Secretary of the Treasury dated March 22,1875, had been'paid, and that such sugar corresponded in character substantially with the sugar embraced in the shipments in November, 1875, on which an allowance of 3 cents per pound was paid.

Upon the question of jurisdiction many cases have been cited by the counsel for the Government tending to show that, in a controversy of this kind, this court is without authority to determine tbe lega] rights of the parties. We have examined with much care the cases applicable to the question of jurisdiction, and in the light of those decisions have arrived at a conclusion adverse to the contention of the Government.

It is true that in the early history of the legal controversy upon the subject of the right of this court to entertain jurisdiction of this class of cases, the Supreme Court held against the power of the court to afford relief to parties affected by the administration of the revenue law. In the Nichols Case (7 Wall., 122) it said: “The mischiefs that would result if the aggrieved party could disregard the provisions in the system assigned expressly for his security and benefit and sue at any time in the Court of Claims forbid the idea that Congress intended to allow any other modes to redress a supposed wrong in operation of the revenue laws than- such as are particularly given by those laws.”

Upon the authority of that decision the case of the Portland Company (6 C. Cls. R., 441) was decided in this court. It is said by this court, “ Those opinions and declarations close the doors of this court against petitions like that now under consideration, and leave us no alternative but to dismiss them.” So it was held in the Doherty Case (6 C. Cls. R., 90), “ Cases arising under the revenue laws are not within the jurisdiction of the Court of Claims, and where an importer’s goods were sold for the nonpayment of duties, and he sues to recover the balance of the proceeds of the sale, the amount being disputed, it is a clear case arising under the revenue laws.” In the case of Turner (9 C. Cls. R., 367), where the claimant sued for an allowance of leakage of distilled spirits and the question of jurisdiction was raised by the defendants, the court said: “But notwithstanding all this, we think the case is within the scope of the decision of the Supreme Court amve cited (Nichols Case), because it is a claim arising under the revenue laws; and we understand that decision to have been that the revenue laws form a system the entire administration of which has been placed in other courts of the United States than this, and is thus removed from our jurisdiction, which must rest in grant. On this ground we sustain the plea.”

In the Campbell Case (12 C. Cls. R., 470), decided in 1876, this court held:

“1. The drawback was ■ a mere gratuity proffered by the Government, imposing no legal obligation npon tbe Government until tbe exporter’s right' thereto 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 nor. authorize to be declared by any other officers or in any other way.”

An appeal was taken and the point made in the Supreme Court that the decision in the Nichols Case was decisive of the question of jurisdiction in this court.

On appeal the Supreme Court said :

“We think the Court of Claims has jurisdiction of such a. claim : (1) Because it is founded on a law of Congress; and (2) Because the facts found in this case raise an implied contract that the United States will refund to the importer the amount he paid to the Government.
“The finding of the court is that, by the regulations, this allowance of drawback had been fixed at 17 cents per hundred pounds.
“The act of Congress having declared that on exportation there shall be allowed a drawback equal in amount to the duty paid on such material, and the Secretary having established by regulation that, as regarded the cake resulting from the manufacture of the linseed into oil and cake,the latter represents at 17 cents per hundred pound the duty on the imported seed so converted into cake, there resulted a contract that when exported the Government would refund, repay, pay back, this, amount as a drawback to the importer. If this be not so, it is because it is impossible to make a contract when the details of its execution or performance are left to officers who refuse to carry them out.
“So it is equally clear that this claim is founded on the law allowing drawback.
“The Court of Claims makes the mistake of supposing that the claim is founded on the regulations of the Secretary of the Treasury. This view can not be sustained. It is the law which gives the right, and the fact that the customs officers refuse to obey these regulations can not defeat a right which the act of Congress gives.”

The facts in the Campbell case are in legal substance the the same as in this case. In that case the claimants imported from Calcutta large quantities of linseed upon wbicb they paid tbe duty required by law, which was by them without inter-mixture with any other material manufactured into linseed oil and linseed oil cake. The manufactured article was by them exported to London in conformity with regulations prescribed by the Secretary of the Treasury, and upon that exportation they demanded a drawback, which was refused by the Secretary of the Treasury.

It was contended upon the part of the Government that, inasmuch as the Secretary of the Treasury and the collector had refused to issue the drawback certificate to the claimant, the law imposed no obligation upon the United States to pay anything for such drawback. The Supreme Court decided that the claimant’s right was not dependent upon the ministerial act of the Secretary, but originated from and was founded on the statute.

The court recognized in the transaction all the elements of a contract, giving this court unquestionable jurisdiction upon that branch of the law, which authorizes suits founded upon contracts express or implied to be prosecuted in this court.

Following the line of judicial determination indicated in the Campbell Case,this court in the case of Kennedy (23 C. Cls. R., 363) entertained jurisdiction of a controversy analogous to the question involved in this proceeding. In that case no certificate was issued by the collector, the Secretary of the Treasury being in doubt as to the effect of a statute passed subsequently to the act allowing the drawback.

In the Kennedy Case the question of jurisdiction was raised by the defendants, but the court said :■ ,

“That question is settled adversely to the defendants’ position by the opinion of the Supreme Court in Campbell v. United States (107 U. S. R., 407). The facts in the two cases, so far as concerns the question of jurisdiction, are so exactly similar that it is only necessary to refer to that decision.
“ It will be observed that the claimant’s right to demand such certificate was complete before the construing act was passed. Did Congress intend to divest the right already acquired under the act of 1883?”

The substance of the decision is, that the party was entitled to recover upon the statute without reference to the ministerial act of the collector, and that right being consummate and complete was not taken away by tbe subsequent statute, and judgment was given for tbe plaintiff.

In view of tbe late decisions of tbe Supreme and tbis court, we determine against tbe contention of tbe defendants, and bold that under tbe facts of tbis case we bave jurisdiction to pass upon tbe legal rights of tbe parties.

Tbe firm was paid at tbe rate of 3 cents per pound, and tbe contention upon tbe merits is as to whether they were entitled to receive tbe rate established by the regulation of March 23, 1875, on “ refined crystalline sugar.”

They contended that the sugar exported by them belonged to that class, andreceived tbe 3 cents per pound under protest.

Tbe officers of tbe revenue fixed tbe rate at 3 cents, arbitrarily determining that tbe sugar did not come under any of tbe classifications embraced in tbe regulations of tbe department.

Tbe court upon an examination and review of tbe evidence has found as a fact that tbe sugar exported by its quality came within tbe classification of refined crystalline sugar,” upon which a drawback of 3f cents per pound was established by tbe regulations in force at tbe time tbe goods were exported.

In June, 1875, a similar quabty of sugar was shipped by tbe firm upon which they were paid a rebate of 3f cents per pound; and before they made tbe exportations upon which tbis suit arises they were assured by tbe auditor of the custom-house in New York that until a change of tbe rate standard A coffee white sugar would be entitled to tbe same rate as refined crystalline.”

The contemporaneous construction of tbe officers in charge of tbe matter in tbe city of New- York was in favor of tbe theory of tbe plaintiff, and upon which be now prosecutes bis suit.

Whatever may bave been the effect of tbe order of October 9,1875, in changing tbe rate established by tbe regulation of March 23 tbe order of tbe Secretary made on tbe 23d of October restores in effect the terms of tbe regulation of March, and by that classification tbe rights of tbe petitioner must be adjusted.

It is tbe judgment of tbe court that tbe claimant, as surviving partner of Charles W. Durant & Son, recover tbe sum of $8,021.38, and for that sum a judgment is hereby ordered.  