Wheeler, J.
The plaintiff's made four importations of sugar at the port of New York, while the defendant was collector there in 1881, on which he exacted duties which they paid, but against which they duly protested and appealed. Two of the appeals were decided against them May 27th; the last payment was made June 2d; the summons in this action was served June 30th; one of the remaining appeals was decided against them July 18th, and the other July 23d; the complaint in this action, with a bill of particulars in due form covering all the importations, was served August 19th, and issue was joined upon the answer to this complaint, without objection to the time or manner of the commencement of the action.
By the decision in Merritt v. Welsh, 104 U. S. 694, the exaction of these duties was shown to be illegal, and those as to which decision was made May 27th were refunded; and the case has been tried as to those concerning which decisions wore made July 18th and 23d. On the trial no question was made but that the exaction of the duties was illegal, nor about any of the proceedings in any respect, except that a direction of a verdict for the defendant was requested on the ground that this suit was not commenced at a proper time. The court ruled against the defendant on this point, and, as there was no other question about the right of the plaintiffs to recover, directed a verdict for them. The defendant has moved for a new trial on account of alleged error in this ruling, and this motion has now been heard. The only question now is whether the plaintiffs are defeated of their right to recover by bringing their action too soon.
There are three sections of the Revised Statutes which appear to have some bearing upon this question,—sections 2931, 3Oil, and 8012. Section 2931 provides that the decision of the collector as to the rate and amount of duties shall be final and conclusive, unless protest bo made within 10 days, and appeal to the secretary of the treasury be taken within 30 days; and that the decision of the secretary shall be final unless suit be brought within 90 days after; and that no suit shall be [682]*682maintained for the recovery of the duties until the decision of the secretary, unless it is delayed more than 90 days. Section 3011 gives an action to any person who shall have made payment under protest and in order to obtain possession of merchandise imported for him to ascertain the validity of the demand, and to recover back any excess paid; but provides that no recovery shall be allowed in such action unless a protest and appeal shall have been taken as prescribed in section 2931. Section 3012 provides that no suit shall be maintained for the recovery of duties unless the plaintiff serves a bill of particulars within 30 days after notice of the appearance of the defendant.
The restriction of recovery to cases in which a protest and appeal have been taken, in section 3011, was passed in 1877, and is the latest of these enactments. 19 St. at Large, 247. The action given appears to be an action for the recovery of the money, in which the principal question triable is the validity of the demand of the money made by the collector, about which the other provisions of these statutes appear to be regulations governing the action and conditions upon which it is given, compliance with which must be shown to entitle the plaintiff to recover, but which need not be alleged by the plaintiff in his pleading as a foundation for, or a part of, his cause of action, to give him a right to show compliance with them, and the want of which need not be set up by the defendant in his pleading, to give him the right to disprove such compliance. This is the effect given to statutes conferring a right of action, but limiting the right to maintain the action unless certain notices should be given. Kent v. Lincoln, 32 Vt. 592; Matthie v. Barton, 40 Vt. 286. Therefore, in states where the common-law method of pleading prevails, the common counts in indebitatus assumpsit would seem to be a sufficient declaration, and the general issue a sufficient plea. Elliott v. Swartwout, 10 Pet. 137. The money is what is recovered with the interest.from the time of its illegal exaction, ordinarily. Erskine v. Van Arsdale, 15 Wall. 75; Redfield v. Ystalyfera Iron Co., 110 U. S. 174; S. C. 3 Sup. Ct. Rep. 570.
According to the provisions of section 3011, the plaintiff might bring an appropriate action for the recovery of the money, and, on showing that the defendant took his money for duties by illegal exaction, and protest and appeal as prescribed in section 2931, have a recovery. There is nothing there about a decision by the secretary, and there is nothing about protest and appeal before the commencement of the suit. It is the recovery in the action, not its commencement, which i's restrained by the want of these. Section 2931 does not provide that suit shall not be brought until decision by the secretary, but that it shall not be maintained. The same expression is used in section 3012, -whereby it is provided that no suit shall be maintained unless a bill of particulars is filed, which is not to be done until after suit brought. This shows that prohibition of maintenance does not there prohibit commencement of suit. The impression made by the reading of these three sections, and considering them together, is that it was intended by them to give an action for the recovery of money illegally exacted for duties, but to restrain main[683]*683taining it to recovery of judgment, without protest, appeal, and adverse decision by the secretary. Of course, if there should be no protest and appeal in due time shown, the decision of the collector would be final and conclusive as to the legality of the exaction; and if these should be shown, and the suit should not be brought in time, the decision of the secretary would be likewise final and conclusive, and the plaintiff would have no ground for a recovery, whether the suit was otherwise well brought or not; but that docs not show that a suit brought before decision would he premature. This suit was not delayed more than 90 days after the decision of the secretary, and, as there is no question about the rest of the plaintiffs’ case, would seem to be well brought if the question is not foreclosed by the expressions of the supremo court in Arnsan v. Murphy, 109 U. S. 238, 3 Sup. Ct. Rep. 184, and S. C. 115 U. S. 579, 6 Sup. Ct. Rep. 185. The question in that suit about the lime of bringing it was whether it was brought soon enough, not whether it was brought too soon; and what is said about the bringing of a suit being prohibited until after decision by the secretary appears to have been said with reference to the language of section 2931 in general, without reference to the language of that section in connection with that of sections 3011 and 3012 in particular. These expressions are so direct, however, that they may have been intended to indicate that this subject was considered in all its bearings, and decided, although not involved in this aspect. But whether so or not, those expressions are not considered to be decisive of this caso against the plaintiffs.
Free access — add to your briefcase to read the full text and ask questions with AI
Wheeler, J.
The plaintiff's made four importations of sugar at the port of New York, while the defendant was collector there in 1881, on which he exacted duties which they paid, but against which they duly protested and appealed. Two of the appeals were decided against them May 27th; the last payment was made June 2d; the summons in this action was served June 30th; one of the remaining appeals was decided against them July 18th, and the other July 23d; the complaint in this action, with a bill of particulars in due form covering all the importations, was served August 19th, and issue was joined upon the answer to this complaint, without objection to the time or manner of the commencement of the action.
By the decision in Merritt v. Welsh, 104 U. S. 694, the exaction of these duties was shown to be illegal, and those as to which decision was made May 27th were refunded; and the case has been tried as to those concerning which decisions wore made July 18th and 23d. On the trial no question was made but that the exaction of the duties was illegal, nor about any of the proceedings in any respect, except that a direction of a verdict for the defendant was requested on the ground that this suit was not commenced at a proper time. The court ruled against the defendant on this point, and, as there was no other question about the right of the plaintiffs to recover, directed a verdict for them. The defendant has moved for a new trial on account of alleged error in this ruling, and this motion has now been heard. The only question now is whether the plaintiffs are defeated of their right to recover by bringing their action too soon.
There are three sections of the Revised Statutes which appear to have some bearing upon this question,—sections 2931, 3Oil, and 8012. Section 2931 provides that the decision of the collector as to the rate and amount of duties shall be final and conclusive, unless protest bo made within 10 days, and appeal to the secretary of the treasury be taken within 30 days; and that the decision of the secretary shall be final unless suit be brought within 90 days after; and that no suit shall be [682]*682maintained for the recovery of the duties until the decision of the secretary, unless it is delayed more than 90 days. Section 3011 gives an action to any person who shall have made payment under protest and in order to obtain possession of merchandise imported for him to ascertain the validity of the demand, and to recover back any excess paid; but provides that no recovery shall be allowed in such action unless a protest and appeal shall have been taken as prescribed in section 2931. Section 3012 provides that no suit shall be maintained for the recovery of duties unless the plaintiff serves a bill of particulars within 30 days after notice of the appearance of the defendant.
The restriction of recovery to cases in which a protest and appeal have been taken, in section 3011, was passed in 1877, and is the latest of these enactments. 19 St. at Large, 247. The action given appears to be an action for the recovery of the money, in which the principal question triable is the validity of the demand of the money made by the collector, about which the other provisions of these statutes appear to be regulations governing the action and conditions upon which it is given, compliance with which must be shown to entitle the plaintiff to recover, but which need not be alleged by the plaintiff in his pleading as a foundation for, or a part of, his cause of action, to give him a right to show compliance with them, and the want of which need not be set up by the defendant in his pleading, to give him the right to disprove such compliance. This is the effect given to statutes conferring a right of action, but limiting the right to maintain the action unless certain notices should be given. Kent v. Lincoln, 32 Vt. 592; Matthie v. Barton, 40 Vt. 286. Therefore, in states where the common-law method of pleading prevails, the common counts in indebitatus assumpsit would seem to be a sufficient declaration, and the general issue a sufficient plea. Elliott v. Swartwout, 10 Pet. 137. The money is what is recovered with the interest.from the time of its illegal exaction, ordinarily. Erskine v. Van Arsdale, 15 Wall. 75; Redfield v. Ystalyfera Iron Co., 110 U. S. 174; S. C. 3 Sup. Ct. Rep. 570.
According to the provisions of section 3011, the plaintiff might bring an appropriate action for the recovery of the money, and, on showing that the defendant took his money for duties by illegal exaction, and protest and appeal as prescribed in section 2931, have a recovery. There is nothing there about a decision by the secretary, and there is nothing about protest and appeal before the commencement of the suit. It is the recovery in the action, not its commencement, which i's restrained by the want of these. Section 2931 does not provide that suit shall not be brought until decision by the secretary, but that it shall not be maintained. The same expression is used in section 3012, -whereby it is provided that no suit shall be maintained unless a bill of particulars is filed, which is not to be done until after suit brought. This shows that prohibition of maintenance does not there prohibit commencement of suit. The impression made by the reading of these three sections, and considering them together, is that it was intended by them to give an action for the recovery of money illegally exacted for duties, but to restrain main[683]*683taining it to recovery of judgment, without protest, appeal, and adverse decision by the secretary. Of course, if there should be no protest and appeal in due time shown, the decision of the collector would be final and conclusive as to the legality of the exaction; and if these should be shown, and the suit should not be brought in time, the decision of the secretary would be likewise final and conclusive, and the plaintiff would have no ground for a recovery, whether the suit was otherwise well brought or not; but that docs not show that a suit brought before decision would he premature. This suit was not delayed more than 90 days after the decision of the secretary, and, as there is no question about the rest of the plaintiffs’ case, would seem to be well brought if the question is not foreclosed by the expressions of the supremo court in Arnsan v. Murphy, 109 U. S. 238, 3 Sup. Ct. Rep. 184, and S. C. 115 U. S. 579, 6 Sup. Ct. Rep. 185. The question in that suit about the lime of bringing it was whether it was brought soon enough, not whether it was brought too soon; and what is said about the bringing of a suit being prohibited until after decision by the secretary appears to have been said with reference to the language of section 2931 in general, without reference to the language of that section in connection with that of sections 3011 and 3012 in particular. These expressions are so direct, however, that they may have been intended to indicate that this subject was considered in all its bearings, and decided, although not involved in this aspect. But whether so or not, those expressions are not considered to be decisive of this caso against the plaintiffs.
The time when the complaint and bill of particulars in this action wore served was after the decisions of Ihe secretary upon the appeals, and long before the expiration of 90 days after. The answer of the defen cl ant was served September 3d, and more than 40 days before the expiration of 90 days after the first of these decisions. This complaint was the first pleading under the provisions of the Code of Procedure of the state in which the suit was brought. Code Civil Proc. N. Y. § 478. Until the complaint ivas filed there does not appear to have been anything on which any judgment could be rendered. Id. §§ 419, 420.
This suit was well brought as to the other entries, in any view. There could be no advantage or benefit to the defondant or the government in having two suits instead of one. The answer of the defendant was filed by the district attorney of the government, who then knew from the bill ol' particulars, or is to be presumed to have known, that this suit was brought to recover these duties as well as the others. The objection that these causes of action aro improperly united with the others could apparently have then been taken by tho answer. Id. §488. Had it then been so taken, the plaintiff could have brought a now suit within the required time. When it ivas taken this could not bo dono. The service of this complaint would seem to be sufficiently the commencement of this action, for these causes of action, for all tho purposes for which a delay until the decision of the secretary can be required. Certainly it does not appear to bo just to allow this objection to be taken and prevail now, unless the rules of law strictly so require. It is a mere technicality, which does [684]*684not at all touch the merits of the plaintiffs’ claim, which is confessedly just; for it is for the recovery of money which was confessedly illegally exacted. It is true that the action is given only upon condition that it foe brought within 90 days after decision of the secretary. This action was not so brought as to include the items in question until after that decision, and it was so brought as to include them within the 90 days after. What was done about it before the decision did not subject the defendant or the government to any additional costs, charges, or expense. If the suit io overthrown on this ground, money illegally exacted of the plaintiffs will be left in the hands of the government; if it is sustained, the plaintiffs will only recover that. The rules of law do not appear to stand in the way of doing justice by sustaining this recovery. Motion denied.