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ing the written admission of the defendant now on file in said case, the plaintiff has failed to prove his case, inasmuch as he has failed to show that he paid to the defendant under protest, and for the purpose of obtaining his merchandise according to the provisions of law in force at the time of his importation, the duties he now seeks to recover. "And said defendant moves the court to rule that on all the evidence in this case, including the aforesaid admission of the defendant, the plaintiff has failed to prove his case, inasmuch as he has failed to show that he complied with the provisions of law relative to protest in force at the time of his said importations.

"And said defendant moves the court to rule that on all the evidence in this case, including the aforesaid admission of the defendant, the plaintiff has failed to prove his

case.

"And the defendant moves also that the court find generally for him.'

"The court overruled the motion, and the defendant duly excepted.

"This bill of exceptions having been tendered for signature and allowance to the judge presiding at said cause at the same term of court at which said special findings were rendered, and within the time allowed by the court therefor, the same is now heregby signed and allowed as a further statement of the exceptions taken and reserved by the said defendant at the said trial, and is hereby made a part of the record in the said cause.

"The within bill of exceptions is allowed this twelfth day of October, 1894.

"Le Baron B. Colt, Circuit Judge. "Also on the same day the following judgment is entered:

"It is thereupon considered by the court, to wit, October 13, 1894, the Honorable Le Baron B. Colt, Circuit Judge, sitting, that the said Joseph Birtwell, plaintiff, recover of the said Leverett Saltonstall, defendant, the sum of $2,433.40 damages, and $156.50 costs."

Atty. Gen. Harmon and Asst. Atty. Gen. Whitney, for plaintiffs in error. J. P. Tucker and Edward Hartley, for defendant in

error.

Mr. Justice SHIRAS, after stating the facts in the foregoing language, delivered the opinion of the court.

This was a suit brought by Birtwell, an importer, against the collector of customs at Boston, to recover certain duties alleged to have been overcharged upon goods imported in 1888.

It is conceded on the part of the government that the classification and rate of duty adopted by the collector, and affirmed on appeal by the secretary of the treasury, were erroneous, and that the classification contended for by the importer was proper.

The

plaintiff was accordingly entitled to recover if payment of the duties was made by the importer for the purpose of obtaining possession of his merchandise, and if the protest which must be made in order to give an importer a right of action against a collector for duties claimed to have been illegally exacted was made in time, as provided by law.

It was affirmatively found in the circuit court that the duties were paid by the importer in order to get possession of the goods, and no objection has been urged in this court to the correctness of that finding. The question principally discussed is whether the plaintiff gave timely and sufficient notice of protest and dissatisfaction with the decision of the collector. The record discloses that when the gross estimates were made, as provided in section 2869 of the Revised Statutes, the importer paid the amounts thereof, and that subsequently, when the duties on the respective invoices were liquidated, protests in writing, in the form required, were filed.

The United States claim that the protests, to be efficacious, should have been made at or before the time the payments were made according to the gross estimates. This position was overruled by the trial court (63 Fed. 1004), and the same view prevailed in the circuit court of appeals (33 U. S. App. 52, 14 C. C. A. 205, and 66 Fed. 969).

It is unnecessary at this time to enter into a minute examination of the several enactments on this subject, as they have been so frequently and recently discussed in several opinions of this court cited in the arguments of counsel. Barney v. Watson, 92 U. S. 449; U. S. v. Schlesinger, 120 U. S. 109, 7 Sup. Ct. 442; Davies v. Miller, 130 U. S. 284, 9 Sup. Ct. 560; and Barney v. Rickard, 157 U. S. 352, 15 Sup. Ct. 642,-may be particularly mentioned. Our present task is to apply the conclusions of those cases to the one in hand. and we can add but little to the opinion of the circuit court of appeals.

Without repeating the history of the prior statutes, it is sufficient, for the determination of this case, to advert to the phraseology of sections 2931 and 3011 of the Revised Stat utes, and of the act of February 27, 1877, c. 69 (19 Stat. 240, 241, 247), respectively, 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,

1

shall, within ten days after the ascertainment and liquidation of the duties by the proper officers of the customs, as well as 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 secretary 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."

"Sec. 3011. 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."

Section 3011 was, by the act of February 27, 1877, amended as follows:

"Section three thousand and eleven is amended by striking out all after 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.'”

Section 3011. as so amended, therefore reads 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 and appeal shall have been taken as prescribed in section twenty-nine hundred and thirty-one."

Undeniably, the general purpose of this legislation was to secure to the importer, who, in order to get possession of his merchandise, has paid duties which he alleges. to have been in excess of those authorized. by law, a remedy in the nature of an action at law to recover back any such excess, and to the United States a notice in writing, setting forth distinctly and specifically the grounds of objection to the amount claimed, and to provide, in respect to time, that such notice must be given within 10 days after the ascertainment and liquidation of the duties, and that the action must be brought within 90 days after the decision on appeal by the secretary of the treasury.

"There is no apparent reason, in the way of advantage or disadvantage to the United States, why the notice or protest should be made at any particular juncture, if made before the appeal to the secretary.

The moneys paid by the importer, in order that he may get possession of his merchandise, are forthwith paid into the treasury of the United States, and the function of the protest to warn the government of the fact of dissatisfaction, and to commit the importer to a specific statement of the grounds of his objection, is equally performed, whether made at the time of such payment, or within 10 days after the ascertainment and liquidation of his duties.

In Davies v. Miller, 130 U. S. 284, 9 Sup. Ct. 560, the contention on the part of the govcrnment was that the notice of dissatisfaction with the decision of the collector of customs, required by the act of June 30, 1864, tobe given "within ten days after the ascertainment and liquidation of the duties," could not be efficiently given before the final ascertainment and liquidation of the duties as stamped upon the entry. But this court held that the notice might be validly given at any time after the entry of the goods and the collector's original estimate of the amount of the duties, saying:

"The purpose is as well accomplished by giving the notice as soon as the goods have been entered and the duties estimated by the collector, as by postponing the giving of the notice until after the final ascertainment and liquidation of the duties have been made and stamped upon the entry. The clause requir ing the importer to give such notice within ten days after the ascertainment and liquidation of the duties' must, therefore, according to the fair and reasonable interpretation of the words as applied to the subject-matter, be held to fix only the terminus ad quem,

the limit beyond which the notice shall not be given, and not to fix the final ascertainment and liquidation of the duties as the terminus a quo, or the first point of time at which the notice may be given."

We think that the fair and reasonable import of section 2931 and of section 3011, as they stood in 1888, when these goods were imported, was that a right of action accrued to the importer if he paid the duties complained of in order to get possession of his merchandise, and if he made his protest, in the form required, within 10 days after the ascertainment and liquidation of the duties.

That congress, in 1877, amended section 3011 by striking out the provision that the protest should be made and delivered at or before payment was a legislative declaration that thereafter such provision should not exist or apply.

It is urged that the phrase "under protest," | in the first part of section 3011, is inconsistent with this view. But it is not unusual, in a succession of statutes on the same subject-matter, amending or modifying previous provisions, that a word or phrase may reInain, although rendered useless or meaningless by the amendments. Such words are merely vestigial, and should not be permitted to impair or defeat the fair meaning of the enactment.

However, we do not think that in this instance there is any real inconsistency. The transaction treated of in this legislation is an entire one, beginning with the entry of the merchandise, and continuing through the appraisement, the liquidation of the duties, the payment, the protest, the appeal, to the trial of the action, and may properly be spoken of as one in which the payment is made under protest, or made in a process in which a protest is made. "Payment under protest" means a transaction where protest has been made in accordance with the requirement of section 2931. and not "at or before payment" of the estimated duties.

This view of the subject renders it unnecessary to consider what effect ought to be giv en, in the case before us, to the practice of the treasury, either by way of departmental construction, or by way of estoppel. Nor do we consider it incumbent on us to consider whether there was error in the circuit court, as a matter of practice, in directing judgment upon the special findings in favor of the importer. No such error was assigned in the circuit court, or was considered in the court of appeals, but it first appeared in the application for the writ of certiorari.

The judgment of the circuit court of appeals, affirming the judgment of the circuit ecurt, is affirmed.

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 objec tion, 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 ob tain 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 ecretary on such appeal shall be final and onclusive; 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. B. 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, is 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, 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 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 were afterwards discovered. And yet the statute, as amended, preserved the express requirement that payments, to be recov ered 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 writing 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

(164 U. S. 89)

PARSONS v. VENZKE et al.
(November 2, 1896.)
No. 264.

PUBLIC LANDS-PRE-EMPTION ENTRY-CANCELLA-
TION-CONFIRMATION OF ENTRIES.

1. The commissioner of the general land office or the secretary of the interior has power to cancel and set aside a pre-emption entry after the local land oflicers have approved the evidences of settlement and improvement, received the purchase money, and issued the receiver's final receipt. 61 N. W. 1036, affirmed. Orchard v. Alexander, 15 Sup. Ct. 635, 157 U. S. 372, followed.

2. The act of March 3, 1891 (26 Stat. 1098) 7, confirming all entries made under pre-emp tion and other laws in which certificates have been issued after final proof and payment. to which there are no adverse claims prior to final entry, and which have been sold or incumbered for valuable consideration to bona fide purchasers or incumbrancers prior to March 1, 1888, does not apply to an entry which had been canceled for fraud before its enactment. 61 N. W. 1036, affirmed.

In Error to the District Court of Richland County, State of North Dakota.

On July 25, 1892, the United States issued a patent for the land in controversy to Gustav Venzke, one of the defendants in error. The other defendants in error are his mortgagees. On January 11, 1883, one Willis B. Simpkins made a pre-emption entry of the land, and re

ceived a receiver's final receipt, the land at that time being public, and subject to preemption entry under the laws of the United States. On February 8, 1883, he conveyed the land to Charles J. Wolfe, through whom, by foreclosure of a mortgage, plaintiff in error acquired her title.

*On September 26, 1884, W. W. McIlvain, a“ special agent of the land department of the United States, reported to the commissioner of the general land office at Washington, as the result of his investigations, that the pre-emption entry of Simpkins had been fraudulently and unlawfully made. Proceedings for an investigation of this charge were ordered before the local land officers. Notice was duly given by publication. Simpkins made no appearance, but the plaintiff in error appeared by attorneys. The investigation was carried on in the local land office, and thereafter in the geneneral land office at Washington, and the proceedings reviewed by the secretary of the interior, the plaintiff in error being a party to all those proceedings. They resulted in a cancellation of the entry on the ground that it had been fraudulently and unlawfully made, and the land was restored to the public domain.

Thereafter Venzke took those proceedings which culminated in the patent, whereupon the plaintiff in error commenced this suit in the district court of Richland county, N. D., to have him charged as trustee of the legal title for her benefit. In that court a decree was entered in favor of the defendants, which, having heen affirmed by the supreme court of the state (61 N. W. 1036), has been brought here on writ of error.

On March 3, 1891, congress passed an act (26 Stat. 1098), section 7 of which contains this provision:

"And all entries made under the pre-emption, homestead, desert-land, or timber culture laws, in which final proof and payment may have been made and certificates issued, and to which there are no adverse claims originating prior to final entry and which have been sold or incumbered prior to the first day of March, eighteen hundred and eighty-eight, and after final entry, to bona fide purchasers, or incumbrancers, for a valuable consideration, shall, unless, upon investigation by a government agent, fraud on the part of the purchaser has been found, be confirmed and patented upon presentation of satisfactory proof to the land department of such sale or incumbrance."

Seth Newman, for plaintiff in error. W. H. Standish, for defendants in error.

Mr. Justice BREWER, after stating the facts in the foregoing language, delivered the opinion of the court.

Counsel for plaintiff in error challenge the power of the commissioner of the general land office or the secretary of the interior to cancel and set aside a pre-emption entry after the local land officers have approved the evidences offer ed of settlement and improvement, received the purchase money, and issued the receiver's final

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