Mr. Justice McLEAN.
This suit was brought to recover from the defendant, collector of the customs, an excess of duties exacted by him of the plaintiffs against law. And on the trial in the Circuit Court the judges were divided on the question, 'whether the act of the 3d of March, 1839, was a bar to the action.' This point has been certified to this court.
The 2d section of the above act provides, 'that from and after the passage of this act, all money paid to any collector of the customs, or to any person acting as such, for unascertained duties, or for duties paid under protest against the rate or amount of duties charged, shall be placed to the credit of the treasurer of the United States, kept and disposed of as all other money paid for duties is required by law or by regulation of the Treasury Department to be placed to the credit of the said treasurer, kept and disposed of; and shall not be held by the said collector, or person acting as such, to await any ascertainment of duties or the result of any litigation in relation to the rate or amount of duty legally chargeable and collectible in any case where money is so paid; but whenever it shall be shown to the satisfaction of the Secretary of the Treasury, that, in any case of unascertained duties or duties paid under protest, more money has been paid to the collector or person acting as such than the law requires should have been paid, it shall be his duty to draw his warrant upon the treasurer in favor of the person or persons entitled to the over-payment, directing the said treasurer to refund the same out of any money in the Treasury not otherwise appropriated.'
In the case of Elliott v. Swartwout, 10 Pet., 137, and in Bend v. Hoyt, 13 Id., 263, this court held, that illegal duties exacted by the collector were recoverable from him, where paid under protest, by the importer, in an action of assumpsit. This doctrine is not questioned in this country or in England. Has the 2d section of the act above cited changed the law in this respect? A majority of the judges have decided in the affirmative, and that that act constitutes a bar to an action in such a case. I dissent from the opinion of the court.
The above section, in my judgment, so far from taking away the legal remedy, expressly recognises it. The collector is required, 'from and after the passage of the act,' to pay over to the treasurer the moneys in his hands, and not 'to await any ascertainment of duties, or the result of any litigation in relation to the rate or amount of duty legally chargeable,' &c. Now, if Congress intended by this section to withdraw this subject from the courts, and vest the exclusive right to decide the matter in the Secretary of the Treasury, could they have used this language? The law was not to operate upon the past, but upon the future acts of the collector. And I ask in sober earnestness, whether the collector could be required to pay over money, 'and not await the result of a litigation,' as 'to the amount of duties legally chargeable,' if the intention was to prohibit such litigation. I use the words of the section; and the words of the section alone, as I think, are conclusive as to the intention of Congress. The collector must pay over the money, and not retain it until the termination of a suit. Does this take away the right to bring a suit? Such an inference, it seems to me, would be as exceptionable in logic as in law.