reference to it necessary to the elucidation of his views. And besides, if the Supreme Court is to be understood as putting a construction upon the act of 1846, then it follows, that, in the opinion of that court, no duties can be duties illegally exacted within the meaning of that act, unless they were paid under the protest required by the act of 1845. But many of the cases provided for in the second section of the act of 1846 originated long before the act of 1845, for it expressly embraces "such sums of money as have been illegally exacted

*

*

* * since the third of March, eighteen hundred and thirty-three." Prior to the act of 1845 it was not usual in a protest to state the grounds of objection, nor was it necessary to do so. The construction, therefore, imputed to the Supreme Court, if adopted, would, in all probability, to a great extent, repeal the act of 1846.

The remarks which refer to the decision of the Secretary of the Treasury, are to be explained in the same way as those which we have already particularly noticed. And, moreover, it was not the intention of the Supreme Court to characterize the decision of the Secretary of the Treasury as a judicial decision; for no part of the judicial power, under the constitution of the United States, can be conferred upon an executive officer. Every ministerial officer is obliged to make a decision, in the first instance, in every case in which he is called upon to act.

If the act which he is required to do be executive, and not merely ministerial in its character, his decision is final as regards executive action, and no appeal lies from it to the courts, nor can they revise his judgment. (Decatur vs. Paulding, 14 Peters' R., 497; Bradshear vs. Mason, 6 How. R., 92.) But it is not conclusive upon the rights of the party interested, in the sense in which a judicial decision would be. He would still be entitled to appeal to Congress. (14 Peters' R., 522; Reeside vs. Walker, 11 How. R., 272.)

It was such a decision, on the part of the Secretary of the Treasury, to which the Chief Justice referred; and all that he meant to say was, that if the importer does not appeal from it to the judicial tribunals, in the manner prescribed by the act of 1845, he cannot maintain an action under that act against the collector; but in the sense of that act the duties are not illegally exacted.

That the Chief Justice is to be understood as we understand him, is rendered yet more manifest by what was said by him in the case of Mason and Tullis vs. Kane, in the circuit court of Maryland. In that case there was a protest, but not such a protest as the act of 1845 requires, and the action failed on that ground. In delivering the opinion of the court, the Chief Justice said: "It is unnecessary, therefore, to inquire whether the objections now made would have been valid if set forth in the protest. If improperly charged, it is, no doubt, yet in the power of the administrative department to do justice to the claimant; but no action can be maintained under the act of 1845." Now, it seems to us that if it was the opinion of this learned judge that where there is no protest duties are not illegally exacted-understanding those terms in their largest and most comprehensive sense-but, on the contrary, however improperly they be charged, or under whatever circumstances they be paid, if there be

no protest, the party has no just claim or legal demand against the United States for re-payment, he could not have made the suggestion, that, nevertheless, in such a case the administrative department would have it in its power to do justice to the claimant. Upon the hypothesis that his opinion goes to the extent contended for, he must have considered that justice had already been done according to law, and did not still remain to be done anywhere-that the claim had been adjudicated and settled by "the decision of the tribunal to which the law has confided the power of deciding the question," and the money paid without appeal to a higher tribunal. He surely did not suppose that the administrative department could give relief in a case so circumstanced.

But it is urged that the suit against the collector is substantially a suit against the United States, and that, therefore, if a party fails to avail himself of that remedy, he can have no just claim against the United States. In the case of Mason and Tullis vs. Kane, to which we have already referred, the following remarks were made by Mr. Chief Justice Taney: "For this suit, although in form against the collector, for doing an unlawful act, is, in truth and substantially, a suit against the United States. The money is in the treasury, and must be paid from the treasury if the plaintiff recover. And as the United States cannot be sued and made defendants in a court of justice without their consent, they have an undoubted right to annex to the privilege of suing them any conditions which they deem proper. And in the exercise of this power they have granted this privilege in the form of a suit against the collector, where duties are supposed to be over-charged, upon condition that the claimant, when he pays the money, shall give a written notice that he regards the demand as illegal, and means to contest the right of the United States in a court of justice; and stating also, at the same time, distinctly, the specific grounds upon which he objects. This is the condition upon which he is permitted to sue the collector, and thus to appeal from the administrative to the judicial department of the government. It is a condition precedent. But it must be recollected that this was the very case in which the same distinguished judge said: "If improperly charged, it is, no doubt, yet in the power of the administrative department to do justice to the claimant. We have already shown that the latter remarks are wholly inconsistent with the conclusion which has been deduced from the former. The consequence of a failure to make a proper protest is clearly and forcibly stated in the concluding sentence of the opinion of the court: "But no action can be maintained under the act of 1845."

The truth is, that in order to give to the act of 1845 the construction contended for on the part of the United States, it would be necessary to insert in it words which it does not contain. It seems to contemplate two modes of reimbursing to an importer money paid for duties not imposed by law-the one by the action of the Secretary of the Treasury, and the other by a suit against the collector. Both these modes, by the express terms of the act, require a protest in writing, signed by the claimant, stating the grounds of objection. But there is still another mode known to the law, and familiar in the

practice of the government, and is not embraced by the act of 1845. În order to embrace it by that act, words must be added thereto, or nserted therein, to the following effect: "Nor shall any money paid for duties, not imposed by law, be refunded by the United States to any claimant, unless, at or before the payment thereof, he make such a protest as is required by this act. To add words like these to a statute is far beyond the power of the judiciary. It falls exclusively within the province of the legislature. However much we might suppose that an enlightened public policy requires that such a provision should be made by law, we have no authority to make it. In the construction of a statute, we can only declare what it is, not what it ought to be.

The condition, then, of the petitioner, at the time of the passage of the act of Congress establishing this court was, that he had a just claim against the United States for money paid them by mistake for duties not imposed by law, but no enforceable remedy for its recovery. He had, by reason of the very mistake under which the payment was made, lost his remedy against the collector, and the Secretary of the Treasury had decided that his claim is "inadmissible under the laws." But his right to petition the legislative department of the government still remained in unimpaired vigor. His claim, as at its origin, still rested on an implied contract on the part of the United States to repay him the money. This money was his property, not theirs; and they were obliged, by the ties of natural justice and equity, to refund it; and, being so obliged, the law, according to principles universally acknowledged, (Cary vs. Curtis, 3 How. R., 249,) had implied a promise on their part to repay it to him. This promise had not been performed. The money was still in the treasury of the United States, and his right to demand its repayment had not been waived or released. On the contrary, his claim still continued unsatisfied and undischarged. But the act to which we have referred makes it the duty of this court to "hear and determine all claims founded upon any law of Congress, or upon any regulation of an executive department, or upon any contract, express or implied, with the government of the United States." (10 Stat. at Large, p. 612.) This case comes within the very words of that act. It is emphatically one of the cases for which it was designed to provide. It is neither more nor less than a claim founded on an implied contract with the government of the United States. It seems to us, therefore, that if it be sustained by proof, the petitioner's right to relief is unquestionable.

Let an order be made authorizing the taking of testimony in this

case.

WILLIAM W. SPENCE & ANDREW REID vs. THE UNITED STATES.

Scarburgh, J., delivered the opinion of the court.

About the 18th day of October, A. D. 1849, the petitioners imported into Baltimore, from Savanah la Mar, in Jamaica, a cargo of pimento, which they entered and warehoused. They purchased the pimento in the ordinary mode of bargain and sale, and the invoice

and entry truly represented its actual value at the time of its shipment at Savanah la Mar for Baltimore.

The collector caused a valuation of the pimento to be made by the official appraisers, and the petitioners being dissatisfied with their valuation, demanded a reappraisement by merchant appraisers. The collector thereupon appointed two merchant appraisers, who reported that they were satisfied that the price specified in the invoice (24d. per pound) was the true cost of the pimento at Savanah la Mar; but that inasmuch as pimento at St. Ann's Bay, Jamaica, was somewhat higher about the time of the exportation from Savanah la Mar, the petitioners ought to be permitted to amend their entry, pay duties on 24d. per pound, and be excused from paying any penalty. The petitioners then applied to the collector to be permitted to amend their entry and be governed by the award of the merchant appraisers; but he refused to do this, and also omitted to order such an appraisement of the pimento as the petitioners claim that they were by law entitled to. They insist that an appeal having been taken and allowed from the appraisement of the official appraisers, and not withdrawn, the collector was not authorized to exact duties and a penalty upon the enhanced valuation made by the official appraisers. They further insist that there then was and now is no legal value whereon to compute the duty upon the pimento, except that specified in the invoice. and entry.

In the original invoice, there was a clerical error in deducting the tare from the gross weight of the pimento. Five per cent. ought to have been deducted for tare, but only one-tenth of five per cent. was in fact deducted therefor. The gross weight, as stated in the invoice, was 87,717 pounds, and a deduction of only 439 pounds, instead of 4,386 pounds, for tare, was made. The error was discovered on the weigher's return, which showed the net weight to be 84,512 pounds, being 2,776 pounds less than the quantity erroneously stated in the invoice.

A lage portion of the pimento was withdrawn from the warehouse and re-exported, and the residue was withdrawn for home consumption.

The petitioners also state as follows: "But the collector aforesaid, in violation of the statutes, exacted duties on the pimento erroneously stated in the invoice as 87,278 pounds, at a valuation of 24d. per pound, Jamaica currency, thereby exacting $107 82 more than the legal duty, and penalties amounting to $899, being $1,006 82, or thereabouts, over and above the amount of duties imposed by law upon the pimento imported and warehoused so as aforesaid; all which your petitioners were required to pay, and did pay, to the collector aforesaid, (remonstrating and protesting nevertheless,) in order to obtain possession of the said pimento."

An action was instituted by the petitioners, in the name of Mason & Tullis, their consignors, against the collector in the circuit court of Maryland; but it failed upon the ground that the protest did not set forth distinctly and specifically the grounds of objection to the payment of the duties.

The question of most importance in this case will probably arise

upon the appraisement made by the merchant appraisers. We do not deem it necessary now to consider it. Although that appraisement seems to be set forth in substance in the petition, yet it is not actually set forth, and it would be improper in us to undertake to determine either its validity or legal effect without knowing precisely the very terms in which it is expressed. If it be valid, and its legal effect be that it values the pimento at 24d. per pound, then, as that value exceeds the invoice value by more than ten per cent., it was not an illegal exaction for the collector to demand the penal duty of twenty per cent. upon the whole importation. By the express terms of the seventeenth section of the act of 1842 the appraisement of the merchant appraisers is final. Its language is: "and the appraisement thus determined shall be final, and deemed and taken to be the true value of said goods, and the duties shall be levied thereon accordingly, any act of Congress to the contrary notwithstanding." (5 Stat. at Large, p. 564. See the case of Bartlett vs. Kane, 16 How. R., 263.) It is supposed, however, that, even if the appraisement of the merchant appraisers be valid, and duly estimates the pimento at 24d. per pound, yet, inasmuch as the value of the net quantity returned by the gauger, even at that rate, does not exceed by ten per cent. the value of the gross quantity stated in the invoice at 24d. per pound, the petitioners were not subject to the penal duty exacted of them. Under the 8th section of the act of 1846 it is made the duty of the collector, within whose district goods may be imported or entered, to cause the dutiable value of such imports to be appraised, estimated, and ascertained, in accordance with the provisions of existing laws; and if the appraised value thereof exceed by ten per centum or more the value declared on the entry, then, in addition to the duties imposed by law on the same, there shall be levied, collected, and paid, a duty of twenty per centum ad valorem on such appraised value. (9 Stat. at Large, p. 43.) The term "value," in this statute, is used in the sense of "price." Hence it has been held, that, although the proviso declares, that under no circumstances shall the duty be assessed upon an amount less than the invoice value, yet a reduction of the invoice quantity is not a reduction of the invoice value, because it is not a reduction of the invoice price. (Marriott vs. Brune, 9 How. R., 619.) If, then, the price ascertained by the appraisers exceed by ten per centum or more the price declared on the entry, the penal duty may be exacted. If, therefore, the appraised value in this case turn out to be 24d. per pound, as that exceeds by more than ten per centum 24d. per pound, the value declared on the entry, the exaction of the penal duty on the quantity of pimento actually imported was not illegal.

But it is contended that, although these principles may be sound as to the pimento withdrawn for home consumption, yet the penal duty could not be exacted upon so much of it as was re-exported. This point has been settled by the Supreme Court of the United States, in the case of Bartlett vs. Kane, 16 How. R., 263. It was there held, that the provision in the act of Congress permitting goods which have been warehoused to be exported without the payment of duties thereon, does not extend to penal duties. The court say: