would seem to be past recovery, although made under protest. The payment of an inheritance tax under protest, after a threat by the collector that unless promptly paid it would be collected with a penalty and interest of one per cent a month, was held to be involuntary and to justify a suit against the internal revenue. collector to recover the amount of the same.19

Where the protest had been sent by the collector to the commissioner who ruled adversely to it, it was held that no formal appeal to the commissioner was required.20

The Revised Statutes further provide: "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, into the performance of his official duty, and the court certifies that there was probable 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 recovered shall upon final judgment be provided for and paid out by the proper appropriation from the treasury.

21

"This statute is constitutional.22 After such a certificate has been given, the statute practically converts the suit against the officer in one against the United States.23

The certificate may be granted by a judge who did not try the case.24 If, however, the trial judge has denied the application, another judge will rarely, if ever, grant it.25 The certificate cannot be granted before a trial.26 When the Government has had no notice, actual or constructive, of the suit, and no opportunity to defend, it is not concluded by the certificate

tion v. Blair, 116 U. S. 200, 29 L. ed. 657, 6 Sup. Ct. Rep. 353.

19 Simons v. U. S., 19 St. Cl. 601. See Hubbard v. Kelley, 8 W. Va. 46.

20 Dodge v. Brady, 240 U. S. 122. 21 U. S. Rev. Stat. § 989, U. S.

Comp. Stat. 1901, p. 708.

22 Carey v. Curtis, 3 How. 236, 245, 246, 11 L. ed. 576, 581, 582.

23 United States v. Sherman, 98 U. S. 565, 25 L. ed. 235; Flanders v. Seelye, 105 U. S. 718, 724, 26 L. ed. 1217, 1219.

24 Cox v. Barney, 14 Blatchf. 289, Fed. Cas. No. 3,300.

25 Frerichs v. Coster, 23 Blatchf. 74, 22 Fed. 637.

26 Cox v. Barney, 14 Blatchf. 28, Fed. Cas. No. 3,300.

of probable cause.27 In case a writ of error is sued out no money will be paid by the Treasury upon the judgment until an affirmance and entry of the judgment upon the mandate of the court of review.28 It has been held that after judgment neither the Government nor the collector is liable for interest; 29 but upon affirmance the court of review will allow interest which will be included in the judgment of affirmance entered upon the mandate in the court below.30 The commissioner may after judgment against the collector allow a repayment of the tax to the plaintiff even though no certificate of probable cause was granted.31

"No suit shall be maintained in any court for the recovery of any internal tax alleged to have been erroneously or illegally assessed or collected, or of any penalty claimed to have been collected without authority, or of any sum alleged to have been excessive or in any manner wrongfully collected, until appeal shall have been duly made to the Commissioner of Internal Revenue, according to the provisions of law in that regard, and the regulations of the Secretary of the Treasury established in pursuance thereof, and a decision of the Commissioner has been had therein: Provided, That if such a decision is delayed more than six months from the date of such appeal, then the said suit may be brought without first having a decision of the Commissioner at any time within the period limited in the next section." 32

It seems that these statutes apply to suits against the United States although when originally framed they were intended to regulate actions against Collectors of Internal Revenue.33

The rejection of the claim by the Commissioner of Internal Revenue does not prevent a suit against the United States for its recovery.34

27 Dunnegan v. U. S., 17 Ct. Cl. 247.

28 Cochran v. Schell, 107 U. S. 625, 27 L. ed. 543, 2 Sup. Ct. Rep. 827.

29 White v. Arthur, 20 Blatchf. 232, 10 Fed. 80.

30 Cochran v. Schell, 107 U. S. 625, 27 L. ed. 543, 2 Sup. Ct. Rep.

31 United States v. Frerichs, 124 U. S. 315, 31 L. ed. 471, 8 Sup. Ct. Rep. 514.

32 U. S. R. S. § 3226, as amended 19 St. at L. 248, Comp. St. § 5949.

33 U. S. v. Hvoslef, 237 U. S. 1, 10; Coleman v. U. S., 250 U. S. 30; Sage v. U. S., 250 U. S. 33.

34 U. S. v. Hvoslef, 237 U. S. 1, 8.

§ 96h. Suits against Collectors of the Ports to recover duties paid under duress. Duties illegally collected under the tariff prior to that of August 5, 1909, could be recovered against the Collectors of the Port where the duty had been paid under circumstances similar to those under which Internal Revenue Taxes could be recovered by the taxpayer 1 except that no appeal to .1 the Commissioner of Internal Revenue was required.2 When such a suit was brought in a State court it could be removed.3 That statute provided that thenceforth "no collector or other officer of the customs shall be in any way liable to any owner, importer, consignee, or agent of any merchandise, or any person, for or on account of any rulings or decisions as to the classification of said merchandise or the duties charged thereon, or the collection of any dues, charges, or duties on or on account of said merchandise, or any other matter or thing as to which said owner, importer, consignee, or agent of such merchandise might, under this Act, be entitled to appeal from the decision of said collector or other officer, or from any board of appraisers provided for in this Act." The same statute directs the Secretary of the Treasury to refund and pay, out of any money in the treasury not otherwise appropriated, all moneys that are shown to his satisfaction to have been paid to or deposited with a collector of customs in any case of unascertained or estimated duties.5

Claims for the return of duties upon imports must be duly brought before the Board of General Appraisers and should then decide against the claimant before the Court of Customs Appeals. The practice is previously explained."

§ 961. Suits against Director General of Railroads and Railroads under Government control. The Army Appropriation Act of August 29th, 1916, provides:

"The President, in time of war, is empowered, through the Secretary of War, to take possession and assume control of any system or systems of transportation, or any part thereof, and to utilize the same, to the exclusion as far as may be necessary

§ 96h. 1 De Lima v. Bidwell, 182

U. S. 1, 45 L. ed. 1041.

2 See Ewers v. Weaver, 182 Fed. 713.

3 Infra, § 551.

436 St. at L. 11, § 24.

5 Ibid., § 23.

6 Supra, §§ 76, 77, 37 St. at L. 240 (Legacy Tax.).

of all other traffic thereon, for the transfer or transportation of troops, war material and equipment, or for such other purposes connected with the emergency as may be needful or de sirable.'' 1

President Wilson on December 26, 1917, issued a Proclamation taking possession and assuming control through the Secretary of War "at 12 o'clock noon on the twenty-eighth day of December, 1917, of each of every system of transportation and the appurtenances thereof located wholly or in part within the boundaries of the continental United States and consisting of railroads, and owned or controlled systems of coastwise and inland transportation, engaged in general transportation, whether operated by steam or by electric power, including also terminals, terminal companies and terminal asosciations, sleeping and parlor cars, private cars and private car lines, elevators, warehouses, telegraph and telephone lines and all other equipment and appurtenances commonly used upon or operated as a part of such rail or combined rail and water systems of transportation;-to the end that such systems of transportation be utilized for the transportation of troops, war material and equipment, to the exclusion so far as may be necessary of all other traffic thereon; and that so far as such exclusive use be not necessary or desirable, such systems of transportation be operated and utilized in the performance of such other services as the national interest may require and of the usual and ordinary business and duties of common carriers.

"It is hereby directed that the possession, control, operation and utilization of such transportation systems hereby by me, undertaken shall be exercised by and through William G. McAdoo, who is hereby appointed and designated Director General of Railroads. Said Director may perform the duties imposed upon him, so long and to such extent as he shall determine, through the Boards of Directors, Receivers, officers, and employees of said systems of transportation. Until and except so far as said Director shall from time to time by general or special orders otherwise provide, the Board of Directors, Receivers, officers and employees of the various transportation systems shall continue

$ 961. 139 St. at L. 645, ch. 418, $1; Comp. Stat. § 197a.

the operation thereof in the usual and ordinary course of the business of common carriers in the names of their respective companies.

"Until and except so far as said Director shall from time to time otherwise by general or special orders determine, such systems of transportation shall remain subject to all existing statutes and orders of the Interstate Commerce Commission, and to all statutes and orders of regulating commissions of the various states in which said systems or any part thereof may be situated. But any orders general or special, hereafter made by said Director, shall have paramount authority and be obeyed as such." 2 The proclamation further provides:

"But nothing herein contained, expressed or implied, or hereafter done or suffered hereunder, shall be deemed in any way to impair the rights of the stockholders, bondholders, creditors and other persons having interests in said systems and transportation or in the profits thereof, to receive just and adequate compensation for the use and control and operation of their property hereby assumed.

"Regular dividends hitherto declared, and maturing interest upon bonds, debentures and other obligations, may be paid in due course; and such regular dividends and interest may continue to be paid until and unless the said Director shall from time to time otherwise by general or special orders determine; and, subject to the approval of the Director, the various carriers may agree upon and arrange for the renewal and extension of maturing obligations.

"Except with the prior written assent of said Director, no attachment by mesne process or an execution shall be levied on or against any of the property used by any of said transportation systems in the conduct of their business as common carriers; but suits may be brought by and against said carriers and judgments rendered as hitherto until and except so far as said Director may, by general or special orders, otherwise determine.

"From and after twelve o'clock on said twenty-eighth, day of December, 1917, all transportation systems included in this order and proclamation shall conclusively be deemed within the possession and control of said Director without further act or notice.

2 Ibid. Note.