81
-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 That provision referred solely to internal revenue, and is superseded by later provisions of law.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
88
REPORTER.
charges on imported goods, was provided for, after protest, with the requirement that a suit to recover back the duties should be brought within 90 days after the decision. This is now section 9931 of the Revised Statutes. By section 16 of the same act it was provided as follows: "Whenever it shall be shown, to the satisfaction of the secretary of the treasury, that in any case of unascertained duties, or duties or other moneys paid under protest and appeal, as hereinbefore provided, more mOlley has been paid to the collector, or person acting as such, than the law requires should have been paid, it shall be the duty of the secretary of the treasury to draw his warrant upon the treasurer in favor of the person or persons entitled to the overpayment, directing the said treasurer to refund the same out of any money in the treasury not otherwise appropriated:'
Nothing was said about interest. This provision is now section 8012! of the Revised Statutes. A provision in regard to the paying back by the commissioner of internal revenue, on appeal to. him, of internal revenue duties erroneously or illegally assessed or collected, was enacted by section 44 of the act of June 30, 1864, (Id. 239,) which provided for repaying "to 'collectors or deputy collectors the full amount of such sums of money as shall or may be recovered against them, or any of them, in any court for any internal duties or licenses collected by them, with the costs and expenses of suit, and all damages and costs recovered against assessors, assistant assessors, collectors, deputy collectors, and inspectors, in any suit which shall be brought against them, or any of them, by reason of anything that shall or may be done in the due performance of their official duties." This enactment is now found in section 3220 of the Revised Statutes. By section 'f of the act of July 28, 1866, (14 St. at Large, 328,) the secretary of the treasury was authorized to refund duties overpaid, although the provisions of said section 14 of the act of June 30, 1864, had not been complied with, on being satisfied that such non-compliance was owing to circumstances beyond the control of the importer. By section 3689 of the Revised Statutes, passed June 22, 1874, permanent annual appropriations were made, out of any moneys in the treasury not otherwise appropriated, of such sums as might be necessary for refunding duties erroneously or illegally assessed or collected under the internal revenue laws, and the excess of deposits for unascertained customs duties or customs duties paid under protest. On the third of March, 1875, (18 St. at Large, 469,) an important act was passed. It provided as follows:
WHITE V. ARTHUR.
89
"Xo moneys as duties on imports, in accordance with any decisiOl;, ruling, or direction previously made or given by the secretary of the treasury, shall, except as hereinafter provided, be refunded or repaid, unless in accord· ance with the judgment of a circuit or district court of the United States giving construction to the law, and from which the attorney general shall certify that no appeal or writ of error will be taken by the United States, or unless in pursuance of a special appropriation for the particular refund or repayment to be made: provided, that whenever the secretary shall be of opinion that such duties have been assessed and collected under an erroneous view of the facts in the case, he may authorize a re-examination and reliquidation in such case, and make such refund in accordance with existing laws as the facts so ascertained shall, in his opinion, justify; but no such reliquidation shall be allowed unless protest and appeal shall have been made as required by law." This does not require a judgment in the particular case, but only a judgment construing the law, which might be had in another case. It does not refer to the payment of a judgment, but to the refunding of moneys collected. By the act of February 15, 1876, (19 St. at Large, 3,) provision was made for the payment under judgments rendered by the court of commissioners of Alabama claims of said judgments, with interest on the principal at 4 per cent. per annwn from the date of loss until notice should be given for payment. In section 3 of the appropriation bill, pas'led June 14,1878, (20 St. at Large, 128,) is the following provision: "For repayment to importers the excess of deposits for unascertained duties, or duties or other moneys paid under protest, including interest and costs in judgment cases, $250,000: provided, that no portion of this appropriation shall be expended for the parment of claims known as the' charges and commissions cases.''' In section 1 of the appropriation bill passed March 3, 1879, (Id. 384,) is the following provision: "To enable the secretary of the treasury, in his discretion, to refund excess of duties and to pay costs in suits and proceedings in 'charges and commissions cases,' in which judgments may hereafter be obtained, or which may be compromised by said secretary, $15,000." In section 1 of another appropriation bill passed March 3, 1879, (Id. 414,) is this provision: "'fhe nnexpended balance of the appropriation of $250,000 made by the act of June 14, 1878, for the repayment to importers of the excess of deposits for unascertained duties, or duties or other moneys paid under protest, including interest and costs in jUdgment cases, is hereby continued and made available for the'payment of all claims to which the appropriation is applicable, which
90
FEDKRAL REPORTER.
are not payable from the permanent annual appropriation provided for in section 3689 of the Revised Statutes: provided, that the claim known as the 'charges and commissions cases'shall not be paid without further legislation."
The permanent annual appropriation did not include "interest and <.lasts in judgment cases." Hence, probably, the necessity for the Bpecialappropriation. The question is, what do the words "interest and costs in judgment cases" meau? Do they include interest after judgment either on the judgment or on the excess of duties? In regard to judgments in "charges and commissions cases," only excess of duties and costs were provided for, nothing being said about interest. In section 1 of the appropriation bill passed June 16, 1880, (21 St. at Large, 242,) is the following provision: "For the repayment to importers the excess of deposits for unascertained duties, or duties or other moneys paid under protest, inclUding interest and costs in judgment cases, $300,000; which sum is hereby made available for the payment of all claims to which the appropriation is applicable which are not payable from the permanent annual appropriation provided for in section 3689, Revised Statutes: provided, that no portion of this appropriation shall be expended for the payment of claims known as 'charges and commissions cases.' "
In the same section is the following: "To enable the secretary of the treasury in his discretion to pay judgments in 'charges and commissions' cases, obtained since January, 1879, and which may be hereafter obtained, or to settle any of said cases, in his discl'etioll, by compromise, $75,000, or so much thereof as may be necessary."
the provision is to pay judgments, but nothing is said about interest on judgments. In section 1 of the appropriatiou bill passed March 3, 1881, (Id. 418,) is a provision in the same words as the one first above cited from the act of June 16, 1880. lt may be admitted that such a suit as the present is a private suit until there is a certificate of probable cause. Then the United States comes in and assumes by statute a certain liability. The question is as to what liability. The plaintiffs contend that the United States assumes all the liability which would be that of the defendant if the United States assumed no liability. The case of Erskine v. Van Arsdale, 15 Wall. 75, cited by the plaintiffs, was a suit to recover back an internal revenue tax illegally collected. The court had instructed the jury that they might, in their verdict, add interest to the tax paid. This was held by the supreme court to be correct. The only decision is that interest might be added
WHITE 'V. ARTHUR.
91
from the time of the illegal exaction to the verdiot. Nothing is deeided as to interest on the judgment, when the government comes to pay it. The interest put into the verdict is put in before there is any certificate of probable cause, and, if there is none, the government assumes no part of the liability of the defendant. The allowance of interest as damages, on a writ of error under sec· tion 1010 of the Revised Statutes, and under rule 23 of the supreme. court, and tho form of the mandate in affirming with interest a judgment where the collector is the plaintiff in error, cannot affect the question here. These things all of them belong solely to the putting the judgment in shape as one in a private suit. Nor does the language "including interest and costs in judgment cases" mean interest on judgments. It is entirely satisfied by confining it to the interest included in the amount of the judgment and the costs forming part <;>1 that amount. The "amount so recovered," referred to in section 989, being more than the amount exacted and paid, because including in addition interest and costs, was probably regarded as needing explanation to make it clear that it was not merely the amount exacted that was to be refunded, but also the interest and costs forming part of the recovery; that is,.on the judgment. The mention of "costs" is indicative of the meaning of "interest." There are no costs after judgment; and, as "oosts" are costs before judgment, so "interest," in the same connection, is interest before judgment. The legislation before recited shows that congress has sometimes provided for interest on judgments and sometimes for interest on excessive duties, and has sometimes omitted the mention of interest. The result of this review is that whatever may have been the practice under the permanent appropriation in the Revised Statutes, and under statutes prior to the appropriation bill of 1878, it is clearly expressed in the appropriation bills of 1878,1879,1880, and 1881, that where there are judgments against the collectors of customs for duties paid under protest, interest accruing after judgment on the amount of the judgment, or on the duties improperly paid, is not to be paid by the govbrnment either from the permanent appropriation or from the special appropriations, Hence, all has been paid by the government in this case which it is obliged to pay. 2. Under section 989, as there has been a certificate of probable cause in this case, there can be no execution against the collector. There cannot be an execution against him for the interest from March 1, 1881, on the view that, under section 966, interest is due on the
·
92
FEDERAL REPORTER.
judgment as one against the collector personally, and that section 989 only means that there is to be no execution against him for what the government pays. He is required to pay the money into the treasury. He does so. The district attorney is required to defend the suit and is paid by the government for doing so. The suit is one which can be brought only because congress allows it to be brought. Congress 'auld prevent its being brought. It did so by the act of 1889, as was held in Cary v. Curtis. Then it restored the right by the act of 1845. But the suit is one only "to try the legality and validity of the demand and payment of duties," as the act of 1845 says, when the collector has paid the money into the treasury, and there is a certificate of probable cause, it is clearly the intention of section 989 that the collector shall not be liable under the judgment for interest on it if tl;le government is not liable under that section for interest on it. The object of the suit and the judgment is solely to put the claim into an adjudicated shape; what is to be paid on it either by the col13ctor or the government is a matter to be determined by congress. It follows that the defendant is not liable to pay the interest in question. As everything has been paid on the judgment which is legally payable on it under existing laws, the judgment is satisfied, and an order will be entered to that effect, and directing that the clerk enter iu. the records of the court all proper entries to show that the judgment is satisfied.
BATES
v.
UNITED STATES.
(Circuit Court, N. D. Illinois. 1.
December, 1881.)
CRIMINAL PLEADING-NaN-MAILABLE MAT'l'ER-REV. S·.r. §
3893. It is sufficient, in an indictment under section 3893 of the Hevised Statutes, to describe the particular book, paper, pamphlet, etc., so as to identify it, and then allege, in the language of the statute, that it was of the character there described.
2. NON-MAILABLE :MATTER-" DECOY LETTERS "-FICTITIOUS NAME.
The mailing of non-mailable matter to a person under a fictitious nalne, who receives it, is an offence against this statute. 3. BY AGENT SUFFICIENT.
Such non-mailable matter need not have been deposited in the llIail by the defendant in person; if he authorized it to lJe lll<tiled he is guilt.r vf au offence against this statute.