11 Haw. 10 | Haw. | 1897
OPINION OF THE COURT BY
This is an action of assumpsit for $1,383.17 alleged to be “money had and received by the defendant to the use of the plaintiffs; said money being a portion of customs duties paid by plaintiffs on liquors drawn from bond; * * * which said portion of customs duties plaintiffs claim was in excess of the lawful rate, was paid under protest by the plaintiffs and was demanded, exacted and received by the defendant in contravention of plaintiffs’ rights under the law.” The Republic of Hawaii, claiming that it was the real defendant in the case, demurred to the complaint on several grounds, of which the principal one was that the Circuit Court was without jurisdiction of the alleged real defendant or of the subject of the action. The case comes here on an exception to the ruling of the Circuit Court sustaining the demurrer.
Assuming that the claim sued on is really a claim against the Government, two statutes are relied on to show that the Circuit Court was without jurisdiction. One is Act 26 of the Laws of the Republic (1895), which provides that “The Supreme Court shall have exclusive jurisdiction to hear and determine * * * without the intervention of a jury * * * all claims against the Government founded upon any regulation of an Executive Department; or upon any contract, express or implied, with the Government.” The plaintiffs contend, in the first place, that this Act is unconstitutional, because the Constitution provides (in Art. 6) that “the right of trial by jury in all cases in which it has been heretofore used shall remain inviolable” (except in certain cases of which this is not one); and jury trials have been “heretofore used” in cases of this kind under previous statutes (Civ. Code, Sec. 829, and Laws of 1888, Ch. 51). A sufficient answer to this'contention is, that the Government cannot be sued except by its own consent, and if it consents to be sued at all, it may do so upon such terms and conditions as it pleases.
Plaintiffs contend, in the second place, that Act 26, in so far as it is involved in the present case, is copied from the United States statute (U. S. Rev. Sts., Sec. 1059) relating to the Court of Claims (which corresponds to our Supreme Court in cases of this kind); that the Supreme Court of the United States has decided that a claim of the kind in question was not within the jurisdiction of the Court of Claims (Nichols v. U. S., 7 Wall. 122); and that when the legislature of one State adopts a statute of another State it adopts also the construction placed upon such statute by the courts of the State from which it was
The.other statute relied .on by the Government is Sec. 524. of the Civil Code, which reads as follows: “All moneys paid for unascertained duties, or for duties paid under protest, against the rate, or amount of duties charged, shall be kept and disposed of as other moneys paid for. duties, and shall not be held by the collector to await the ascertainment of. duties, or the result of any litigation in relation to. the rate or amount of duty legally chargeable and collectable in any case where money is so paid; but.whenever it shall be shown to the satisfaction of the Minister of Finance that .in any such case more money has been paid to the collector than the law requires, he shall refund the same-out of any moneys in the treasury, not otherwise appropriated.”
The argument is that the collector is the mere agent of the Minister of Finance, and is obliged by this section of the code to pay over to him all moneys collected as duties, and consequently that he can be under no obligation himself to refund any such moneys, even though illegally exacted, to the importers, and that a claim for such moneys must therefore be pursued, if at all, against the Government. In reply to this argument, the plaintiffs contend that this section of the code is merely a regulation between the Collector-General and the Minister of Finance, and in no way interferes with or impairs the rights of third parties. It seems that this statute also was taken from the United States statutes (5 Sts. at Large, p. 348). There is also a decision of the Supreme Court of the United States construing
After all, the main question is, is the claim sued on a claim against the Government? It is so treated by the plaintiffs themselves. Service of process was made on the Deputy Collector, that is, as a representative of the Government. There is indeed
We are of the opinion that the subject of the action is a claim against the Government, and that the Circuit Court is without jurisdiction to hear and determine it.
The exceptions are overruled.