DISSENTING OPINION
Brown, J.:In Kendall v. Lyman, 161 Fed. 652 (T. D. 23894), decided March 20, 1908, it was distinctly held (although the damages in the particular circumstances of that case happened to be nominal) that a remedy by suit for damages existed against the collector of' customs for illegally refusing to -forward a customs protest to this court (then called the Board of General Appraisers), which remedy in-a proper case would give substantial damages to the importer, for such breach of duty by the collector.
In view of the existence of that remedy I am -unable to imply a right in us to issue the above order, in the nature of a mandamus, in-aid of our jurisdiction, to' compel him to forward the protests in-question, although I think the collector should always forward to us all customs protests filed with him without enquiring into their nature- or effect.
Further in view of the fact that suits involving the subject matter of these protests have already been brought in the district court,, comity to a United States Court of. equal dignity would seem to require our not issuing the order even if we have jurisdiction to do so. If the importer’s contention upon the question of jurisdiction is correct the district court will doubtless so rule and dismiss the cases-which have been brought before it.
The majority opinion accurately states that the collector must-forward all protests
Against any act of the collector reviewable by this court.
Unless we have jurisdiction of the subject matter of the protest it would seem to be a useless act to order the collector- to send up the-protest and then have to dismiss it for lack of jurisdiction.
*267As gathered from the motion, the affidavit filed in answer to it, ••and the statements of counsel at the oral argument, the situation ■seems to be as follows:
The goods were entered for warehouse and liquidation had. This liquidation was not protested. Later, the goods not being exported, which would have released the duties, or other disposition made of them, and the warehouse period having expired, the collector sold them. The proceeds of sale did not suffice to pay the liquidated duties. The collector then, after deducting the expenses of the sale, ■credited the rest of the proceeds to the payment of the duties, and formally demanded the balance from the importer. Within 60 days ■of such demand the importer protested such demand as an illegal ■exaction. In my opinion, if the importer in such circumstances is -still personally bound to pay the duties (here the balance after the .■sale) the demand for such balance would not be a charge or exaction protestable under section 514, but a contingent liability fixed and ■determined by the original unprotested liquidation less the net proceeds of sale, not a new decision to take an exaction within the meaning ■of section 514.
On the other hand, if the policy of the law is now changed, and under it the Government now solely looks to the lien on the goods, •and demands no personal liability from the importer under the provisions of the warehouse law as re-enacted by the act of 1922, under which no bond is now required, then the demand for the unsatisfied balance would be a new exaction not warranted by the original liquidation and as such demand for such balance would be a protestable •decision of the collector within the meaning of section 514.
Thus the question on the merits of the claim seems to be necessarily involved in the proper determination of the question of jurisdiction, i. e., whether the demand for the unsatisfied balance is an exaction and a protestable decision of the collector within the meaning of section 514.
As I cannot gather from the terms of the new warehouse provisions ■of the act of 1922 (including the omission of the provision requiring a bond as security to meet such a deficit as here arises) an intention -on the part of Congress to excuse the personal liability of the importer for duties, and to be satisfied with the lien on the goods alone, my mind is compelled to the conclusion that the demand for the unsatisfied balance, as here protested, is not an exaction within the meaning of the protest provision, and that jurisdiction to determine whether the bond taken is void as without authority and whether any balance whatever can be collected from the importer lies elsewhere.
So holding and believing I am constrained to dissent as before stated.
*268While I tbink that the best practice would be for the collector to forward all customs protests to this court, without going into or speculating upon their legality or effect, if he chooses to take the risk of refusing to forward them, and thus assumes the 'personal responsibility of paying substantial damages out of his own pocket if he makes a mistake in so doing, and happens (as I think he is here) to be right in his speculation over what court has jurisdiction of the subject matter, I think he should not be ordered to forward us the protests.