Saltonstall v. Birtwell (164 U.S. 54)/Dissent Fuller

Mr. Chief Justice FULLER, dissenting.

At common-law money unlawfully exacted by a collector of taxes or duties could be recovered back in an action of assumpsit brought against him, but to sustain the action the money must have been paid under duress. Duties are voluntarily paid if paid without objection. The finding in this case that the importer paid for the purpose of obtaining these pieces of iron is no more than would be true in any case, and does not show, in the absence of expressed objection, that the payment of the particular amount was made by the importer in invitum.

As construed by this court in Carey v. Curtis, 3 How. 236, the act of March 3, 1839, took away the common-law right of action to recover moneys paid under duress of goods; but it was restored by the act of February 26, 1845, the provisions of which were carried forward as section 3011 of the Revised Statutes. The common-law action continued as before, save that it was subject to certain new restrictions. In the revision of 1873-74, section 3011 read as follows: 'Any person who shall have made payment under protest, and in order to obtain possession of merchandise imported for him, to any collector, or person acting as collector, of any money as duties, when such amount of duties was not, or was not wholly, authorized by law, may maintain an action in the nature of an action at law, which shall be triable by jury, to ascertain the validity of such demand and payment of duties, and to recover back any excess so paid. But no recovery shall be allowed in such action unless a protest in writing and signed by the claimant or his agent, was made and delivered at or before the payment, setting forth distinctly and specifically the grounds of objection to the amount claimed.' Protest was required to show that the legality of the demand was not conceded when payment was made, and the words 'at or before payment' were merely declaratory and redundant.

June 30, 1864, an act was passed, the fourteenth section of which was carried forward as section 2931 of the Revised Statutes, as follows:

'Sec. 2931. On the entry of any vessel, or of any merchandise, the decision of the collector of customs at the port of importation and entry, as to the rate and amount of duties to be paid on the tonnage of such vessel or on such merchandise, and the dutiable costs and charges thereon, shall be final and conclusive against all persons interested therein, unless the owner, master, commander, or consignee of such vessel, in the case of duties levied on tonnage, or the owner, importer, consignee, or agent of the merchandise, in the case of duties levied on merchandise, or the costs and charges thereon, shall, within ten days after the ascertainment and liquidation of the duties by the proper officers of the customs, as well in cases of merchandise entered in bond as for consumption, give notice in writing to the collector on each entry, if dissatisfied with his decision, setting forth therein, distinctly and specifically, the grounds of his objection thereto, and shall within thirty days after the date of such ascertainment and liquidation, appeal therefrom to the secretary of the treasury. The decision of the recretary on such appeal shall be final and conclusive; and such vessel, or merchandise, or costs and charges, shall be liable to duty accordingly, unless suit shall be brought within ninety days after the decision of the secretary of the treasury on such appeal for any duties which shall have been paid before the date of such decision on such vessel, or on such merchandise, or costs or charges, or within ninety days after the payment of duties paid after the decision of the secretary. No suit shall be maintained in any court for the recovery of any duties alleged to have been erroneously or illegally exacted, until the decision of the secretary of the treasury shall have been first had on such appeal, unless the decision of the secretary shall be delayed more than ninety days from the date of such appeal in case of an entry at any port east of the Rocky Mountains, or more than five months in case of an entry west of those mountains.'

This act of 1864 added a new restriction, namely, that an action should not lie until a certain proceeding had been prosecuted in the treasury department. It did not abolish the common-law action, but established the rule of the finality of the collector's decision, unless appealed from in a certain way. Many reasons existed for this statute, as in addition to the former, such as the doing away with prospective protests, and the securing, when the goods were warehoused, of early notification to the government of objections to the duties, if any, instead of being delayed until protest made on payment when the goods were withdrawn; but it is enough that this court has already ruled that sections 2931 and 3011 co-exist, and must be construed together. U.S. v. Schlesinger, 120 U.S. 109, 114, 7 Sup. Ct. 442. The language of Judge Lowell in Schlesinger's Case, on circuit (14 Fed. 682, 684), is apposite:

'It is safe to say, I think, that no case has been decided in which, under objection, a plaintiff has ever recovered of a collector, or of any one else, a payment which was not, in the legal sense, coerced. It is not mentioned in every case, because it is one of those familiar facts which are taken for granted. Does the act of 1864 (now Rev. St. § 2931) change all this? I think not. That act is not an enabling, but a limiting and restricting, act. It does not purport to tell us when an action may be maintained, but only that the decision of the department shall be final unless certain things be done.'

It may be observed that two written protests or notices of specific objections were not generally, if ever, necessary, for the notice required by section 2931 might be given at the time of paying the money.

The Revised Statutes did not change the action recognized by the act of 1845, substantially, or relax any of its requirements; and although it is true, as said in Arnson v. Murphy, 109 U.S. 238, 3 Sup. Ct. 184, that the specified action was regulated by express statutory provisions, yet the conditions that the payment must be made under protest, and to obtain the goods, still remained, and so it has been several times decided. Porter v. Beard, 124 U.S. 429, 8 Sup. Ct. 554; U.S. v. Schlesinger, 120 U.S. 109, 7 Sup. Ct. 442.

The question really is then whether the restrictions were relaxed by the act of February 27, 1877 (19 Stat. 240). That act is entitled 'An act to perfect the revision of the statutes of the United States, and of the statutes relating to the District of Columbia,' and declares 'that for the purpose of correcting errors and supplying omissions in the act entitled 'An act to revise and consolidate the statutes of the United States in force on the first day of December, Anno Domini, one thousand eight hundred and seventy-three,' so as to make the same truly express such laws, the following amendments are hereby made therein. * *  * Section three thousand and eleven is amended by striking out all after the word 'protest' in the eighth line, and by adding the words 'and appeal shall have been taken as prescribed in section twenty-nine hundred and thirty-one." This made section 3011 read as follows: 'Any person who shall have made payment under protest and in order to obtain possession of merchandise imported for him, to any collector, or person acting as collector, of any money as duties, when such amount of duties was not, or was not wholly, authorized by law, amy maintain an action in the nature of an action at law, which shall be triable by jury, to ascertain the validity of such demand and payments of duties, and to recover back any excess so paid. But no recovery shall be allowed in such action unless a protest and appeal shall have been taken as prescribed in section twenty-nine hundred and thirty-one.'

This amendment was held by the circuit court of appeals to have revolutionized the law as to the recovery back of moneys voluntarily paid, and to allow payments made without objection to be recovered, if grounds of objection was afterwards discovered. And yet the statute, as amended, preserved the express requirement that payments, to be recovered back, must be made 'under protest and in order to obtain possession' of the goods. In other words, the amendment preserved so much of the act of 1845 as announced the common-law rule and omitted so much as established new restrictions, referring instead to the restrictions of 1864. If the intention had been to change the common-law rule, the words 'under protest' would have been stricken out, and it seems to me a most dangerous and wholly inadmissible rule of construction to treat them as accidentally retained traces of something that had ceased to be. The words 'at or before the payment' were omitted, but, as already said, these were merely declaratory and redundant, and that was undoubtedly the reason of the omission. The last clause of section 3011, as amended, refers to the notice in writig required by section 2931, and is simply a cross reference to the additional requirement that the treasury proceeding shall be had before the action is commenced. In my opinion, the action remained an action in the nature of a common-law action, and governed by the principles of the common law, except as otherwise specifically provided. Indeed, section 3011, as it now stands, is unambiguous on its face, and does not call for construction, unless in respect of the character of the protest; and that need not be considered, as the finding of facts must be taken to mean that no protest at all was made at the time these duties were paid, and the pieces of iron obtained by the importer. I cannot accept the conclusion that under this act the importer can recover on a payment not made under duress, and think that such duress cannot be said to exist, in the absence of any objection to making the payment.

I therefore dissent from the opinion and judgment of the court, and am authorized to say that Mr. Justice FIELD, Mr. Justice HARLAN, and Mr. Justice BREWER concur in this dissent.