Argument for the importers. murrer being sustained, the petition was dismissed. The importers now appealed. Mr. William Allen Butler, for the appellants, contended, that the case was within the jurisdiction of the Court of Claims, for the claim was founded upon— 1st. A law of the United States, to wit, the Tariff Act, in operation at the time of the importations; an act which had regulated the assessment of duties on the liquors; upon 2d. A regulation of an executive department, to wit, the Treasury; which sort of regulation the circular of January 30, 1847, was; a regulation as to deficiencies; and upon 3d. An implied contract of the United States, springing from the obligation of the government to refund, irrespective of protests, the duties, if illegally exacted. Viewed in the light in which the claim was placed by the act creating the Court of Claims, and by the decision in Lawrence v. Caswell, it was to be judged according to the rules of law applicable to cases where a party sues to recover money paid to another, in order to obtain possession of his goods from the latter, who has withheld them upon an illegal demand, colore officii. In such cases the law forces upon the wrongdoer the promise, in invitum, to pay the money to the party entitled to it. The Court of Claims has decided that this class of cases come within the provis ions of the acts conferring jurisdiction upon the court.* Neither was a written protest, made at the time before the collector, a pre-requisite to maintain suit here. There was no law requiring importers, overcharged by collectors of customs, to pursue the remedy authorized by the act of February 26, 1845, viz.: payment of the duties under protest, and suit against the collector. They might, if they so elected, apply to Congress, by petition, for an act directing the return of the duties. So they might come into this court and ask its relief. It was only where the importer * Schlesinger's Case, 1 Nott & Huntingdon, 16, 17. Opinion of the court. exercised his right of action against the collector, that the absence of protest in writing could affect the question of the legality of the exaction. If the exaction was wrongful, and an obligation existed on the part of the government, the principal receiving money, to repay it, that obligation, when sought to be enforced directly against the government, could not be impaired by a coudition made by it, for mere security perhaps, respecting the mode of enforcing a liability for the same obligation against its agents. Mr. Evarts, Attorney-General, and Mr. Talbot, contra: This appeal assumes as true that, at common law, the appellant has, against the United States, a right of action to recover the moneys claimed in his petition, which right was made available by the statutes establishing the Court of Claims, under no limitations save.those prescribed for proceedings in that court. The assumption is false. The common law implies no contract on the part of the government to repay money erroneously collected into the public treasury for public dues. This point sustained, the appeal fails. But further: 1. No new liability on the part of the government, in this respect, has been created by the statutes establishing or relating to the Court of Claims. This appears by the statutes themselves. 2. What the revenue statutes define to be a compulsory payment in a case like this, and that alone, is such. Everything else is voluntary. 3. At common law the payment alleged by the petition is not compulsory.* Mr. Justice DAVIS delivered the opinion of the court. Two questions arise in this case: 1st. Was there any liability on the part of the government to refund these duties prior to the act establishing the Court of Claims? *Bend v. Hoyt, 13 Peters, 268. Opinion of the court. 2d. If not, has that act fixed any new liability on the gov ernment? The immunity of the United States from suit is one of the main elements to be considered in determining the merits of this controversy. Every government has an inherent right to protect itself against suits, and if, in the liberality of legislation, they are permitted, it is only on such terms and conditions as are prescribed by statute. The principle is fundamental, applies to every sovereign power, aud but for the protection which it affords, the government would be unable to perform the various duties for which it was created. It would be impossible for it to collect revenue for its support, without infinite embarrassments and delays, if it was subject to civil processes the same as a private person. It is not important for the purposes of this suit, to notice any of the acts of Congress on the subject of the payment of duties on imports, anterior to the act of February 26, 1845.* This act altered the rule previously in force, and required the party of whom duties were claimed, and who denied the right to claim them, to protest in writing, with a specific statement of the grounds of objection. Through this law Congress said to the importing merchant, you must pay the duties assessed against you; but, as you say, they are illegally assessed, if you file a written protest stating wherein the illegality consists, you can test the question of your liability to pay, in a suit against the collector, to be tried in due course of law, and, if the courts decide in your favor, the treasury will repay you; but in no other way will the government be responsible to refund. The written protest, signed by the party, with the definite grounds of objection, were conditions precedent to the right to sue, and if omitted, all right of action was gone. These conditions were necessary for the protection of the government, as they informed the officers charged with the collection of the revenue from imports, of the merchant's reasons for claiming exemption, and enabled the Treasury Depart * 5 Statutes at Large, 727. Opinion of the court. ment to judge of their soundness, and to decide on the risk of taking the duties in the face of the objections. There was no hardship in the case, because the law was notice equally to the collector and importer, and was a rule to guide their conduct, in case differences should arise in relation to the laws for the imposition of duties. The allowing a suit at all, was an act of beneficence on the part of the govern.ment. As it had confided to the Secretary of the Treasury the power of deciding in the first instance on the amount of duties demandable on any specific importation, so it could have made him the final arbiter in all disputes concerning the same. After the passage of the law of 1845, the duties in controversy were paid. The appellants say they were illegally exacted, because it was decided by this court, in Lawrence v. Caswell,* that the duties ought to be charged only upon the quantity of liquors actually imported, and not on the contents stated in the invoices; but the Chief Justice took occasion to observe in deciding that case," that where no protest was made the duties are not illegally exacted in the legal sense of the term. If the party acquiesces, and does not by his protest appeal to the judicial tribunals, the duty paid is not illegally exacted, but is paid in obedience to the decision of the tribunal (the Secretary of the Treasury) to which the law had confided the power of deciding the question." In view of this decision and the plain requirements of the law, how can Nicholl & Co. complain? They knew by proceeding in a certain way they could resort to the legal tribunals, and yet for a series of years they imported liquors, and paid the duties demanded without objection. They had an equal right, with the Secretary of the Treasury, to construe the law under which the duties were claimed, and as they chose not to appeal to the courts, they adopted the construction which the secretary put on the law, and are concluded by his decision. If a party who did not adopt that construction placed himself in a way to contest it, and got a decision that it was * 13 Howard, 488. Opinion of the court. erroneous, such decision cannot enure to the benefit of Nicholl & Co., who by their conduct notified the government, so far as they were concerned, they acquiesced in the secretary's construction of the law. It may be their misfortune that they did not appeal from the secretary's decision; but it is a misfortune that occurs to any party, in a lawsuit, who refuses to appeal from the decision of an inferior court, and afterwards finds, by means of another's litigation, that if he had appealed the decision would have been reversed. If the duties demanded of Nicholl & Co. had been paid under protest, their payment, in the sense of the law, would have been compulsory, but as they were paid without protest it was a voluntary payment, doubtless made and received in mutual mistake of the law; but in such a case, as was decided in Elliott v. Swartwout,* no action will lie to recover back the money. And so this court has repeatedly held.† It is clear, therefore, that the appellants are without remedy, unless a new liability has been imposed on the government by the act creating the Court of Claims. Does this act confer on the appellants any further or different rights than they had prior to its passage? If not, there is an end to this suit. The Court of Claims has power 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. Conceding, that this jurisdiction draws to it cases arising under the revenue laws, then it is contended, as this suit is founded on one of the tariff acts of Congress, which has been judicially interpreted so as to sustain the claim, therefore the case of the appellants is brought within the first jurisdictional clause of the act creating the Court of Claims. But this result does not follow, for if the court has decided that the appellants, if they had protested, would have been entitled 10 Peters, 153. Bend v. Hoyt, 13 Peters, 268; Lawrence v. Caswell, 13 Howard, 488; Curtis v. Fiedler, 2 Black, 461. |