116 F. 664 | U.S. Circuit Court for the District of Connecticut | 1902
The situation when the suit was brought, was as follows: After the ratification of the treaty with Spain, April II, 1899, and prior to the passage of the act of congress known as the “Foraker Act,” to wit, on May 29, 1899, and on July 21, 1899, the plaintiffs paid to the defendant, who was collector of the port at New Haven, certain moneys as duties upon cargoes of sugar and molasses brought by vessels from the Port of Ponce, in Porto Rico, to the port of New Haven. These cargoes were entered in the usual way at New Haven by the plaintiffs, and every step taken which would have been taken in the case of imported merchandise. The plaintiffs claim in their pleadings that the sums in question they “were unlawfully, and against their will, and in spite of their protests, and over their ob
“(1) That said sums of money were paid voluntarily by the plaintiffs to him as customs duties by law due and payable to the United States upon said cargoes, without objecting to said payment as illegal, and without any notice to the defendant not to pay over said sums to the United States, and without any notice to the defendant of an intention on their part to bring suit to recover back said sums of money. (2) That the plaintiffs did not, within ten days after paying said sums of money to the defendant, give notice in writing to the defendant setting forth clearly their objections to the payments, following the customs administrative act of 1890 applying to goods imported from a foreign country. (3) That the defendant, as collector, paid the said sums of money received from the plaintiffs upon the cargoes in question into the treasury of the United States before any notice was given him by the plaintiffs not to pay said sums to the United States.”
The plaintiffs, in their argument, are disposed to lay especial stress upon the proposition that, since the goods came info port while the customs administrative act was in force, but were not “imported merchandise” under that act, it was unnecessary for them to “file a written protest within ten days,” since such protest could only be directed toward “rate,” “amount,” or classification. They say distinctly -that the “court in the De Lima Case clearly infers that, if the collector is apprised of the probable course of the ones from whom duties have been unlawfully exacted, it is all that is necessary.” From the language of Mr. Dewell himself I must find that the “probable course” of the plaintiffs, which the collector had a right to expect, was to trust the government to do what was right. The Foraker bill was imminent, and the plaintiffs expected to fare as others would, relying upon the merciful fairness of the government in the final outcome. To demand the money, and bring suit if it was not paid back, was evidently an afterthought, and that course was not determined upon and put into execution until long after the moneys had in good faith and in regular course of business been paid over to the government by the collector.
Upon the evidence presented to me in this case I must and do find as a fact that no protest whatever was made by the plaintiffs against the entry of the cargoes as imported merchandise. Mr. Dewell, the senior partner of the plaintiff firm, who was really in charge of the matter, was very straightforward, fair, and frank when upon the witness stand. What he says, when boiled down, amounts to this: Whether Ponce was a domestic port or not was at the time under Serious agitation. Mr. Dewell was advised to protest, but as a good citizen and patriotic business man he was disinclined to commit any act which might in any quarter be construed as evincing a disposition to hamper or embarrass the government in its fiscal relations. Consequently he refused absolutely to protest, and at a later date was very much disturbed when he learned that during his absence his partner had filed a written protest upon the entry of a small cargo. I am extremely sorry that a firm actuated by such high and pure motives should now be compelled to suffer, but, taking the law to be as I view it, such seems to be the inevitable conclusion. I shall be much pleased when I learn that thé government has rewarded their conduct as it deserves to be
“It Is true that, to prevent the seizure of the sugars, the plaintiffs did enter them as imported merchandise, but any admission derived from that fact is explained by their protest against the exaction of duties upon them as such. They waived nothing by taking this course.”
In the entire discussion of Elliott v. Swartwout, 10 Pet. 137-154, 9 L. Ed. 373, to be found in the De Lima Case on pages 177-180, 182 U. S., and pages 745, 746, 21 Sup. Ct., 45 L. Ed. 1041, the supreme court seems to assume that the objection, protest, and notice in the
After a careful survey of the entire field of precedents, and after a deliberate weighing of the principles which ought to control this controversy, I am at last forced to the conclusion that the contest hinges upon whether or not the payment was a voluntary one, and made without even a hint to the collector that an attempt would be made to recover by force what was freely paid.
Let judgment be entered for the defendant to recover his costs.