80
FEDERAL REPORTER.
But it is not a practical question in this case. in any view, for the reason that there can be no surplus to pay it. RESIDUARY LEGATEES.
The residuary legatees cannot recover anything against the executor in this cause. It is a bill which has no other purpose, and can properly have none other, than to ascertain the amount due the plaintiff and to enforce its payment. P(£yne v. Hook, 7 Wall. 425; Hook v. Payne, 14 Wall. 252; Hainesv. Carpenter, 1 Woods, 262. Whether, under any circumstances, we would have jurisdiction to decree relief to the residuary legatees against the executor, they all being citizens of this state, I need not now inquire. There are no assets for distribution, and they are entitled to no other in my view of the case. Let the proper decree be drawn, according to the principles laid down in this opinion, in favor of the plaintiff, as prescribed by the eighth equity rule. . NOTE. See Hall v. Law, 102 U. S. 461, 466, on statutes of limitation in a court of equity.
WHITE
and others v.
ARTHUR.,
(Oircuit Court, S.
n. New
York.
January 25, 1882.,
.
SUITS AGAINST COLLECTORS TO ':RECOVER DUTIES MENT IN.
LIABILITY OF GOVERN-
A suit against a collector of customs is a private suit, and there i, no claim against the government until a certificate of prohable cause under section 989, Rev. St., has been obtained from the court; then the government assumes a certain liability. 2. SAME-JUDGMENT IN-LIABILITY FOR INTEREST ON.
Liability of government for interest on a judgment against collector must be created by statute. It cannot be implied. 3. SAME-REFUNDING OF DUTIES-ACTS OF CONGRESS RELATIVE TO.
The various acts of congress relative to refunding of duties illegally exacted, and interest thereon, reviewed and commented on, and the drawn that the liability assumed by government does not include the payment of interest upon judgments recovered against collectors of customs, and that such interest cannot be collected. by S. Nelson White, Esq., of the New York bar.
WHITE V. ARTHUa.
81
4.
SAME-INTEREsT AB DAMAGES ON WRIT OF ERROR.
The allowance of interest as damages on a writ of error, under section 1010, nev. St., and under rule 23, Sup. Ct., and the form of mandate affirming, with interest, a judgment where collector is plaintiff in error, does not affect the question. They belong solely to putting the judgment in shape. G. SAME-INTEREST ON JUDGMENT IN-LIABILITY OF COI,LEeTon.
There is no personal liability on the part of the collector, after the making of a certificate of probable cause, to pay the interest on judgments obtained against him. Under section 989, Rev. St., he is not liable for such interest if the government is not U. S. v. Sh&rman, 98 U. S. 565, and Erskine v. Van Arsdale, 15 Wall. 7G, cited and explained. Circular of the commissioner of customs of March 16, 1881, upheld. At Law.
Hartley rt Coleman, for plaintiffs. Stewart L. Woodford, Dist. Atty., for defendant. BLATCHFORD, C. J. This is a suit against a late collector of the port of New York to recover back money paid to him for custom duties, and by him paid into the treasury in the performance of his official duty. On the first of March, 1881, a judgment in this suit was docketed in this court in favor of the plaintiffs, and against the defendant, for $2,295.90. Prior to that, and at the trial of the action, this court, under section 989 of the Revised Statutes, made a certifi. cate of probable cause. It is provided as follows by section 989: "When a recovery is had in any suit or proceeding against a collector or other officer of the revenue, for any act done by him, or for the recovery of any money exacted by or paid to him, and by him paid into the treasury in the performance of his official duty. and the court certifies that there was prob. able cause for the act done by the collector or other officer, or that he acted under the directions of the secretary of the treasury or other proper officer of the government, no execution shall issue against such collector or other officer but the amount so received shall upon final judgment be provided for and paid out of the proper appropriation from the treasury." On the sixteenth of March, 1881, the commissioner of customs addressed a circular to the first auditor of the treasury, stating that in view of the decision of the supreme court in U. S. v. Sherman, 98 U. S. 565, and of the decision of the first comptroller of the treasury in Stephani's Case, 26 Int. Rev. Rec. 313, nothing would thereafter be allowed or paid by the United States on judgments against customs officers, under section 989, beyond the amount recovered on final judgment, excluding interest on the amount of the judgment. The decision in U. S. v. Sherman was made at the October term, 187tl, and that in Stephani's Case in August, 1880. v.l0,no.1-6
82
, l;Jnder instructions from the commissioner of customs, dated March 24:,11881, the collector of the port of New York paid to the plaintiffs $2,295.90, the amount of the judgment, which was paid and received without prejudice to the claims of the plaintiffs for interest on the judgment from March 1, 1881. The plaintiffs have never executed any satisfaction piece of the judgment, because the .commissioner of customs directed the collector not to require one, in order to enable the plaintiffs to procure a judicial determination of the legality of the said decision of the commissioner of customs of March 16, 1881. The plaintiffs have not applied to the supreme court for a mandamus to compel the secretary of the treasury or other officer to pay the interest in question, but the United States attorney now applies to this court, on the foregoing facts, to require the plaintiffs to execute and deliver a full and complete satisfaction piece of the judgment, or to make an order that full and complete satisfaction' of the judgment be entered on the records of the court. , Although the commissioner of customs directed the oollector not to require a satisfaction piece, it must be assumed that the present application is made with the oonsent of the treasury department, and 'that althongh it is in form an application by the defendant, it is also an application by the government fodhe purpose of obtaining a judicial decision as to the liability of the government to pay the interest. It is so treated by both parties. The United States attorney relies wholly <.in the views taken in the deoision in Stephani's Case. If the .is liable for the interest, the plaintiffs ouglit not to' be required to now enter satisfaction. But the further ql:\estion ariseR whether the plaintiffs are now bound to enter satisfaction, even thongh the government may not be liable for the interest. 1. The question of the liability of the government to pay thiduterBst will be first considered. The Case of Stephani was a judgment , against a collector of internal revenue to recover back taxes illegally exacted. It arose under section 989. There was a certificate of 'probable cause, and the question was whether interest should be , paid from the date of that certificate. In his decision the first comp'troller says that the practioe theretofore in his office had been "to allow interest on judgments from the date of the certificate of probable cause to the time of filing the judgment in the treasury depart, ment for payment." He holds that the expression "the amount so recovered," in section 989, "as applied to the government, includes only the sum of the judgment and costs;" that the government is not liable to pay interest by force of section 966, which provides that
v.
ARTHUR.
88
interest shall be allowed on all payments recovered in civil causes in a circuit court, because the government is not named nor intended by clear inference j that the doctrine that interest is an incident of the judgment, and so follows the principal," has no application to judgments against the government, or to judgments which the government has by force of a statute assumed to pay j that it is specially provided in some cases that the government shall pay interest on judgments or on debts as in section 1090, and in the act of March 2, 1875, (18 St. at Large, 481,) such provision being necessary, "because at common law interest would not be paid;" and that under section 3220, authorizing the repayment to internal revenue collectors of moneys recovered against them in a court for taxes collected by them, and of damages and costs recovered against them in suits brought against them by reason of anything done in the due performance of official duty, the practice had been to allow interest. on such judgments from the time of rendition until paid» but that could "no longer be permitted." It is contended for the plaintiffs that the measure of the responsibility of the government is the liability of the defendant. There can be no doubt that the liability of the defendant to the plaintiff under the judgment, under section 966 of the Revised Statutes, is not only for the amount of the judgment, but for interest on it, unless that liability is barred by other statutes. It is provided as follows by section 966: " Interest shall be allowed in all judgments in civil causes recovered in a circuit or district court, and may be levied by the marshal under process of execution issued thereon, in all cases where, by the law of the state in which such court is held, interest may be levied under process of execution on judgments recovered in the courts of such state; and it shall be calculated froID the date of the judgment, at such rate as is allowed by law on juugmeuts recovered in the courts of such state."
But "the question is whether the government bas assumed to its full extent, by section 989, the liability of the defendant. It is very clear that it has not, even without reference to section 966, because by section 989 not only is it necessary that there shall have been a recovery against the collector, but there must be a certificate of probable cause before the liability of the government begins. This is what was decided. in U. S. v. Sherman, a to which the provisions of section 12 of the act of March 3, 1863, (12 St. at Large, 741,) no:w section U89 of the Revised Statutes, were a,pplied by section 329.). In that. 8 of thelllCt of July 28, 1866,(14 St at
84
case there was a judgment in June, 1869, against an agent of the treasury department. There was no certificate of probable cause made till June, 1874, and then it was obtained by the plaintiff in the judgment and not by the defendant. The treasury department then paid to the plaintiff in the judgment the amount of it, with interest from the date of the certificate of probable cause. The plaintiff then applied to the supreme court for a mandamus to compel the payment of the interest from the date of the judgment to the date of the certificate. The application was denied. The court held that no claim against the government arose under section 12 of the act of 1863, as applied to that case, until the certificate was made, and that the government was not liable for the interest which accrued on the judgment prior to the making of the certificate. In the present case the certificate was made before the judgment was entered, but still the question remains whether the government is liable for interest on the judgment from its date if a certificate of probable cause was made prior to or at the time of the date of the judgment. This point was not decided in U. S. v. Sherman. It is well settled that the liability of the government for the interest claimed in this case must be created by some statute. There is no contract by the government or any of its authorized agents to pay interest. There is no judgment against the United States. There is no suit against the United States. There is no liability. of the United States till after a recovery against the collector and a certificate of probable cause. So the question arises as to the construction of section 989. "As a general rule the government does not pay interest. The exceptions to this rule are found only in cases where the demands are made under special contracts or special laws, expressly providing for the payment of interest. A::J. obligation to pay it is not to be implied against the government as it is a!f<linst a private party from the mere fact that the principal was detained from the creditor after the right to receive it had accrued," 9 Op. of Attys. Gen. 59.
The principle that interest is not recoverable against the government if it unreasonably delay.;; payment of its debts, as it would be against a citizen, and the further principle that interest is not to be allowed on claims presented to the defendants unless it is specially provided for, are recognized by the supreme court in TiUson v. U. S. 100 U. S. 43, 47. The plaintiffs contend, however, that the interest on the judgment in this case is expressly provided for by statute. A review of the
WHITB II. ARTHUR.
8S
history of legislation and adjudication in respect to suits agaiust col. lectors to recover back customs duties illegally exacted, will aid in a. decision as to the meaning of the present statutory provisions; and legislation in rega.rd to paying interest on other claims, and on judgments for them, may also be referred to. Prior to the enactment of section 2 of the act of March 3, 1869, (5 St. at Large, 348,) the moneys paid to a collector of customs for unascertained duties, or for duties paid under protest against the rate or amount of duties charged, were retained by the collector. That act required such moneys to be paid into the treasury, and made it the duty of the treasury department to refund overpayments made under protest out of any money in the treasury not otherwise appropriated. In 1845 it was decided by the supreme court in Cary v. Curti8, 3 How. 236, that the effect of section 2 of that act was to take away the right to bring an action against the collector for moneys illegally exacted by him as and for duties, and paid to him under protest, where he had paid them into the treasury before suit brought. This decision was followed by the act of February 26, 1845, (5 St. at Large, 727,) which provided that nothing in section 2 of the act of 1839 should be construed to take away the right of any person paying money as and fOf duties under protest, to a collector, in order to obtain goods imported by him, the duties not being authorized by law, to maintain an action at law against the collector to try the legality and validity of the demand and payment of duties, and to have a trial by jury touching the same, or to authorize the secretary of the treasury to refund any duties paid under protest. This legislation restored the right to sue the collector. Of course a judgment against him could be enforced by execution against him, and under section 8 of the act of August 8, 1842, (5 St. at Large, 518,) now section 966 of the Revised Statutes, interest on such judgment from its date could be collected by execution against him. On the eighth of August, 1846, an act was passed (9 St. at Large, 84, 675) providing for the payment by the secretary of the treasury to six different parties named of any excess of duties paid by them to the collector of the port of New York upon the importation of certain specified goods beyond what the same were legally chargecases interest on the excess is speciable with, and in four of the fied as to be paid; the direction as to three of the four being that it is to be interest from the time of the payment to the collector. By section 2 of that act the secretary is authorized, out of any money in
86
the treasnry not otherwise appropriated, "to refund to the several persons indebted thereto such sums of money as have been iliegally exacted by collectors of customs, nnder the sanction of the treasury department, for duties on imported merchandise" since March 3, 1833; "provided, that before any such refunding the secretary shall be satisfied, by decisions of the courts of the United Sta.tes upon the principle involved, that such duties were illegally exacted; and provided, also, that such decisions of the courts shall have. been adopted or acquiesced in by the treasury department as its rule of construction. " In this section 2 nothing is said about paying the amounts of judgnentsor about paying interest on judgments or about paying interest on sums illegally exacted, but it is the sums illegally exacted which are to be refunded, and the refunding is made to depend on the adoption of, or acquiescence in, the decision of the court by the treasury department. There is nothing in this section 2 to indicate that it was limited to cases of duties paid under protest, while under \ the act of February 26, 1845, suits could be brought against a collector only where duties had been paid under protest. On the tenth (>f August, 184.6, an act was passed (9 St. at Large, 677) directing the refunding to a party named of "the balance remaining unpaid, and interest thereon," of a judgment recovered by him in this court against the collector of this port for the recovery of duties illegally exacted, "a part of which judgment has been heretofore paid." This general and special legislation indicates an intention in congress to specify interest when it is to be paid. Like instances of refunding to parties named duties illegally or erroneollsly collected on imports, but without mentioning interest, are found in acts passed June 28, 1848, and March 3, 1849, (9. St. at Large, 720, 780.) The act of March 3, 1857, § 5, (11 St. at Large, 195,) provided for an appeal to the secretary of the treasury, after protest, from the decision of a collector as to the liability of imported goods to or their exemption from duty, and made the decision on such final, unless suit should be brought within 30 days after such deCISIon.
By the act of April 11, 1860, (12 St. at Large, 837,) provision is made for the repayment, with interest at 6 per cent. per annu,m from the date of exaction, of certain duties illegally exacted as tonnage and light duties; while by the act of March 2, 1861, (ld. 890,) provision is made for the repayment of a certain amount erroneously paid 8S
· WHITE V. ARTHUR.
-duties, nothing being said about interest. Like provisions, with no mention of interest, are made by the acts of May 1, and February 18, 1863. ld. 903, 917. By the act of March 3, 11:163, § 31, (ld. 729,) the commissioner of internal revenue, subject to the regulation of the secretary of the treasury, was authorized "to remit, refund, and pay back all duties rroneously or illegally assessed or collected, and all judgments or sums of money received in any court against any collector or deputy -collector for any duties or licenses paid under protest." That provision referred solely to internal revenue, and is superseded by later provisions of law. By section 12 of the act of l{arch 3, 1863, (ld. 741,) the provision was enacted which is now found in section 989 of the Revised Statutes, as' before quoted. By section 13 of the same act it was made the duty of the district attorney of the distriot within which any suit should be brought against a collector or other officer of the revenue for any act done by him, or for the recovery of any money exacted by or paid to him, which should have been paid into the treasury of the United States, to appear on behalf of such officer, unless otherwise instructed by the secretary of the treasury, and to make a report in regard to such suits annually to the solicitor of the treasury; and it was directed that the same should be reported annually to congress, "with a statement of all moneys received by the solicitor and by such district attorney" under the act. . Most of these provisions of section 13 are now in sections 771 and 773 of the Revised Statutes. By said section 12 it was also provided that when, in any such suit, any district or other attorney should be directed to appear on behalf of such officer by any proper officer of the government, such attorney should be allowed such compensation for his services therein as should be certified by the court to be reasonable and proper, and approved by the secretary of the treasury. This provision is now in section 827 of the Revised Statutes. By section 7 of the act of March 3, 1863, (12 St. at Large, 766,) now sections 1089 to 1093 of the Revised Statutes, interest on judgments rendered by the court of claims is not to be paid unless the United States has appealed, and then interest at the rate of 5 per cent. per annum is to be paid from the time a certified copy of the payment is presented to the secretary of the treasury for payment. By section 14 of the act of June 30, 1864, (13St. at Large, 215,) an appeal to the secretary of the treasury from the decision of the -collector of customs, as to the rate and amount of duties, costs, and