The ascertainment and liquidation of duties by a collector of
customs, under Rev.Stat. § 2931, is the decision of that officer as
to what the duties shall be, made after the measurement, weighing,
or gauging of the merchandise, its inspection and appraisal, the
determination of its dutiable value, and the taking of such other
steps as the law may call for, and, so far from this being required
to be delayed until the importer chooses to withdraw his goods for
consumption, it may take place at any time after the original entry
of the merchandise, and should follow, in the regular course of
business, as soon after the entry as is convenient, just as in the
case of merchandise entered for immediate consumption.
Westray v. United
States, 18 Wall. 322, explained.
The ten days referred to in Rev.Stat. § 2931, within which an
importer is allowed to protest against the liquidation of duties
begin to run upon their ascertainment and liquidation.
A construction of a doubtful or ambiguous statute by the
Executive Department charged with its execution, in order to be
binding upon the courts, must be long continued and unbroken.
Page 137 U. S. 543
This was an action at law against the collector of customs for
the port of New York, brought to recover duties alleged to have
been illegally exacted. Verdict for the plaintiffs, and judgment on
the verdict. Defendant sued out this writ of error. The case is
stated in the opinion.
MR. JUSTICE LAMAR delivered the opinion of the Court.
This was an action at law by Donald Cameron and Donald E.
Cameron, composing the firm of Cameron & Co., importers,
against the collector of the port of New York, to recover certain
duties alleged to have been illegally exacted on a cargo of sugar
and molasses. The only defense that appears to have been pleaded
was that the protest of the importers against such exaction of
duties had not been made within ten days from the ascertainment and
liquidation of the duties, as required by section 2931 of the
Revised Statutes. The case was tried before Judge Shipman and a
jury, resulting in a verdict and judgment in favor of the importers
for the sum of $1,759.84, and the collector thereupon sued out a
writ of error.
The bill of exceptions, made part of the record, shows the
following undisputed facts. On the 26th of July, 1880, Cameron
& Co. imported into the United States at the port of New York,
from Demerara, by the steamer
Restless, a cargo of sugar
and molasses, and made entry of the same for warehouse, in bond,
under the laws of the United States for the warehousing of
merchandise in bond. The estimated duties on the whole cargo
amounted to $11,195.11, and pursuant to law, the importers gave a
bond to the United States in the penal sum of $23,000 (about double
the amount of the estimated duties), containing the following
condition:
"That if, within one year from the said date of original
importation, the said goods, wares, and merchandise shall be
regularly and lawfully withdrawn from public store or bonded
warehouse on payment of the legal duties and charges to which
they
Page 137 U. S. 544
shall then be subject, or if, after the expiration of one year
and within three years from the said date of original importation,
they shall be so withdrawn upon the like payment, with ten
percentum added upon the amount of such duties and charges, or if
at any time within three years from the said date of original
importation, they shall be so withdrawn for actual export beyond
the limits of the United States, then the above obligation to be
void; otherwise, to remain in full force."
On the 4th of August, 1880, the importers withdrew the sugar
from warehouse for consumption and paid to the collector the sum of
$10,913.55 as the estimated duties thereon and on account of the
duties to be afterwards ascertained and liquidated by him. The
appraisement of both the sugar and molasses was made on the 6th of
August, and on the 20th of August the collector ascertained and
liquidated the duties on the whole cargo, as imported, fixing them
at $12,157.76, and stamped upon the entry "Liquidated, and notified
importer August 20, 1880." What was meant by "liquidated," as thus
used, was that the entry had been passed regularly through the
various divisions of the collector's office, and the duties thereon
had been finally ascertained and fixed by the custom officials.
"Notified importer" meant that the fact of the liquidation had been
stated on a sheet of paper which was hung up in the custom house
for the information of the importer. On the 10th of September,
1880, the importers withdrew the molasses from the warehouse for
consumption, and paid to the collector the balance of the duties
assessed on the whole cargo, to-wit, $1,244.21, of which $327.50
was the whole amount of the duty on the molasses, and $916.71 was
the balance of the duties assessed on the sugar.
On the 15th of September, 1880, the importers protested in
writing against the exaction of the duties on the sugar as
excessive and illegal, and on the same day appealed from the
decision of the collector to the Secretary of the Treasury. On the
22d of January, 1881, the secretary affirmed the collector's
decision, and on the 19th of April, 1881, the importers brought
this suit to recover the duties claimed in their protest.
Page 137 U. S. 545
The evidence introduced by the plaintiffs showed that the excess
of duties paid by them, over and above the legal duties, including
interest on such overpayments, amounted to $1,759.84. It also
showed that where merchandise, all of which was covered by one
bond, was withdrawn from a warehouse for consumption in separate
quantities at different times, the duties paid on the several
withdrawals conformed to the estimated duties on the original entry
except that the last or final withdrawal was not paid or settled
until it was compared with the warehouse ledger to see whether the
correct amount of duties had been paid on the merchandise
previously withdrawn. If either too much or too little had been
paid, it was noted on the last withdrawal, and a settlement was
then made on the basis of the duties as liquidated. The withdrawal
entry of the molasses made September 10, 1880, bore the endorsement
in red ink, "To close, $1,244.21," which endorsement meant that
that amount of duties, as liquidated, was yet due on the original
cargo of merchandise covered by the bond. Evidence was also
introduced tending to show that the practice of the custom house in
New York, and the action of the collector in the case of the
importation in suit, were in accordance with the following
paragraph of Art. 616 of the general regulations under the custom
house and navigation laws of the United States, etc., issued by the
Treasury Department, January 1, 1874:
"Goods withdrawn for consumption may be taken at average
valuation, care being had that on the last withdrawal the entire
balance of duties be collected. Should the final withdrawal entry
be for export or transportation, and there be any difference
between the actual duty and the amount due, to close the sum due on
the warehouse entry, the excess, if any, shall be refunded on the
last withdrawal for consumption, and the deficiency, if any,
collected on amendment to the entry."
At the close of the testimony, the plaintiffs moved the court to
direct the jury to find a verdict in their favor for the sum of
$1,759.84, and the defendant moved for a verdict in his favor, on
the ground that the protest of the plaintiffs had both been made
within ten days after the ascertainment and liquidation
Page 137 U. S. 546
of the duties assessed by him as collector, as required by
section 2931 of the Revised Statutes. The court denied the
defendant's motion and granted that of the plaintiffs. The jury
thereupon, under the direction of the court, found a verdict for
the plaintiffs for the sum above specified, and judgment having
been entered on the verdict, the defendant sued out a writ of
error, as before stated.
There is but one question in the case,
viz., was the
protest of the importers made within the time prescribed by section
2931 of the Revised Statutes? That section reads as follows:
"On the entry of . . . any merchandise, the decision of the
collector of customs at the port of importation and entry, as to
the rate and amount of duties to be paid . . . on such merchandise,
and the dutiable costs and charges thereon, shall be final and
conclusive against all persons interested therein, unless . . . the
owner, importer, consignee, or agent of the merchandise . . .
shall, within ten days after the ascertainment and liquidation of
the duties by the proper officers of the customs, as well in cases
of merchandise entered in bond as for consumption, give notice in
writing to the collector on each entry, if dissatisfied with his
decision, setting forth therein, distinctly and specifically, the
grounds of his objection thereto, and shall, within thirty days
after the date of such ascertainment and liquidation, appeal
therefrom to the Secretary of the Treasury."
Inasmuch as the ascertainment and liquidation of the duties in
this case was in fact made on the 20th of August, 1880, and the
protest of the importers was not filed until September 15 of the
same year (twenty-six days thereafter), it would seem to have been
clearly too late under the statute quoted. The contention of the
defendants in error, however, seems to be that the ascertainment
and liquidation of the duties referred to in section 2931, from
which the ten days begin to run, should have been made, under the
law at the date of the last or final withdrawal of the merchandise
covered by the bond, and that as the protest was filed only five
days after that date, it was in time. The decision of this Court in
Westray v. United
States, 18 Wall. 322,
85 U. S. 329,
and the rulings of the Treasury
Page 137 U. S. 547
Department in force at the time the proceedings in this case
took place in the custom house, are relied on as sustaining their
view.
It is undisputed that from 1876 to May 2, 1885 (which period
embraced the time when the proceedings in this case took place in
the custom house), the ruling of the Treasury Department was that a
protest was in time if made within ten days from the last or final
withdrawal of the merchandise covered by the bond. That ruling
appears to have been based upon some expressions found in the
opinion of this Court delivered by Mr. Justice Strong in
Westray's Case, supra (decided October term, 1873). But in
that case, as appears from an examination of it, the question as to
when the ascertainment and liquidation of the duties should take
place was not involved. The case had reference, it is true, to
section 14 of the Act of June 30, 1864, 13 Stat. 214, c. 171, now
embodied in section 2931 of the Revised Statutes, and was a suit by
the United States on a bond given by the importers on the entry of
goods for warehousing, conditioned for the payment of the duties
thereafter to be ascertained. The merchandise was withdrawn for
consumption before any ascertainment or liquidation of the duties
had taken place, upon the payment of the estimated duties. The
collector afterwards ascertained and liquidated the duties, and
upon the refusal of the importers to pay the difference between the
duties as liquidated, and the duties as estimated at the date of
the entry, suit was brought on the bond, in the name of the United
States, to recover that difference. At the trial, the importers
offered to prove that the duties as liquidated were excessive and
illegal, and that they had never received any notice of the
liquidation of them by the collector. It was held, however, that
the law did not require the collector to notify the importer of the
liquidation of the duties, but that the latter was under obligation
to take notice of the collector's settlement of the amount of them;
that as no protest had been made and no appeal had been taken to
the Secretary of the Treasury, the decision of the collector had
become final, and that evidence to prove that the duties as
liquidated were excessive and illegal was
Page 137 U. S. 548
not admissible. The language of the opinion which the Treasury
Department evidently relied upon as authorizing the ruling that the
withdrawal of the merchandise from the warehouse for consumption
was the liquidation of the entry referred to in section 2931 of the
Revised Statutes, and which is relied upon here to sustain the
contention of the defendants in error, is as follows:
"The statute, and the Treasury regulations established under it,
require that the duties must be ascertained whenever an entry is
made, whether it be for warehousing or for withdrawal. In practice,
it is true the liquidation at the time of entry for warehousing is
little more than an approximate estimate, and it is mainly for the
purpose of determining the amount of the bond to be given. It is
made, and the bond is given, before the goods are sent to the
warehouse, or even to the appraisers' stores, and before they are
weighed, gauged, or measured. But the importer enters them and
gives the bond, the amount of which is regulated by the estimated
amount of duties. It is due to his inattention, therefore, if he
does not know what that estimate is at the time when it is made.
Equally true is it that he has ample means of knowledge of the
second or correct liquidation -- that made at the time of the
withdrawal entry. One of the conditions of his bond is that he pay
the amount of duties to be ascertained under the laws then existing
or thereafter enacted. He is thus informed that there is to be
another liquidation, and that the law requires it to be made at the
time when he shall make his withdrawal entry, and when the duties
are required to be paid."
But in view of the facts in that case, the language referred to
can hardly be considered as warranting the view of the defendants
in error, for the withdrawal of the merchandise in that case
occurred before the final liquidation of the duties thereon, and if
the importer be required to protest within ten days from that date,
it might follow that his protest would have to be made before the
actual liquidation had taken place -- that is to say, in order to
guard against all contingencies he would be required to protest
against a future liquidation which might prove to be satisfactory
to him in all particulars. Such
Page 137 U. S. 549
a conclusion is not in harmony with the idea and object of the
protest. True, as held in
Davies v. Miller, 130 U.
S. 284, the clause "within ten days after the
ascertainment and liquidation of the duties" merely fixes the limit
beyond which the notice of protest shall not be given, and not the
first point of time at which it may be given -- that is to say, the
notice of protest may be given before the ascertainment and
liquidation of the duties (as was specifically ruled in that case),
but it is not required to be given until some time within ten days
after the liquidation.
Indeed, in another part of the same opinion in
Westray's
Case, the learned Justice used language entirely inconsistent
with the theory of the defendants in error. After stating that the
decision of the collector had become final by reason of no protest
having been made and no appeal having been taken to the Secretary
of the Treasury, he said:
"The same considerations lead to the conclusion that the circuit
court correctly refused to rule that the ten days prescribed by the
statute, within which notice of dissatisfaction is required to be
given, did not begin to run until notice of the collector's
liquidation was given to the plaintiffs in error, or until they had
knowledge thereof. The limitation of the right to complain or to
appeal commences with the date of the liquidation, whenever that is
made. No notice is required, but the importer who makes the entries
is under obligation to take notice of the collector's settlement of
the amount of duties."
And in the syllabus of the case by the reporter, it is said:
"The right of the importer to complain or appeal begins with the
date of the liquidation, whenever that is made." These quotations
abundantly show, we think, that the question as to when the
ascertainment and liquidation should take place was not considered
by the court at all further than that it should take place some
time after the entry of the merchandise for warehouse.
We find nothing in the statutes or in any of the decisions of
this Court warranting the construction contended for by the
defendants in error that the ascertainment and liquidation of the
duties referred to in section 2931 should be made at the
Page 137 U. S. 550
date of the final withdrawal of the merchandise from the bonded
warehouse. On the contrary, we think the ascertainment and
liquidation of the duties on merchandise entered in bond for
warehouse should follow in the regular course of business as soon
after the entry as is convenient, just as in the case of
merchandise entered for immediate consumption. The statutory
regulations as to the ascertainment and liquidation of the duties
are the same in the one instance as in the other. The measurement,
weighing, or gauging of the merchandise, the inspection and
appraisal of it, and the determination of its dutiable value are
required to be proceeded with exactly the same in each instance.
After the ascertainment of those facts in relation to the entry,
the collector has to decide what the duties are in each case. His
decision at that time is the ascertainment and liquidation of the
duties, referred to in section 2931, and there would seem to be no
good reason for his delaying that decision in the case of
merchandise entered in bond for warehouse until the convenience of
the importer shall suggest the removal of the merchandise from the
warehouse.
It is urged, however, that section 2970 of the Revised Statutes,
when construed
in pari materia with section 2931, leads to
the conclusion that the liquidation of the duties on merchandise
entered in bond should be made when the merchandise is withdrawn
for consumption. We do not think so. That section is as
follows:
"Any merchandise deposited in bond in any public or private
bonded warehouse may be withdrawn for consumption within one year
from the date of original importation on payment of the duties and
charges to which it may be subject by law at the time of such
withdrawal, and after the expiration of one year from the date of
original importation, and until the expiration of three years from
such date, any merchandise in bond may be withdrawn for consumption
on payment of the duties assessed on the original entry and
charges, and an additional duty of ten percentum of the amount of
such duties and charges."
In our opinion, that section was intended to provide for cases
in which a change in the rate of duty had been made by statute
Page 137 U. S. 551
while the merchandise was in the bonded warehouse.
Fabbri v.
Murphy, 95 U. S. 191; Act
March 14, 1866, 14 Stat. 8. c. 17. The first clause of the section
means simply that if there has been a change in the rate of duty
after the merchandise has been entered in bond, and the withdrawal
of the merchandise takes place afterwards and within one year from
the date of the importation, the duties to be paid are such as are
fixed by the law in force at the date of the withdrawal. The second
clause of section 2970 provides that if the merchandise remain in
the bonded warehouse more than one year, it may be withdrawn for
consumption at any time within three years upon the payment of the
duties and charges assessed upon the original entry and ten
percentum in addition. The phrase "duties assessed on the original
entry," etc., evidently means the duties on the original entry as
finally ascertained and liquidated, within the meaning of those
terms, as used in section 2931. In either case, if a statute
changing the rate of duties goes into effect after the liquidation
of the original entry, a reliquidation must necessarily take place.
The two clauses of the section differ in one respect only,
viz., in a ten percent increase of duties, where the
merchandise remains in the warehouse more than one year, and is
withdrawn within three years from the date of importation. This
construction renders the two sections of the statute
harmonious.
Upon a careful examination of the question at issue, we are of
opinion that the ascertainment and liquidation of the duties upon
merchandise entered in bond for warehouse may take place at any
time after the original entry of the merchandise, and that it is
not required to be delayed until the importer chooses to withdraw
his goods for consumption. The ten days referred to in section
2931, within which the importer is allowed to protest, begin to run
upon such ascertainment and liquidation of the duties, and
therefore the protest in the case at bar was too late.
In arriving at this conclusion, we are not unmindful of the fact
that the defendants in error made their protest in accordance with
the regulations of the Treasury Department in force at that time. A
regulation of a department, however, cannot
Page 137 U. S. 552
repeal a statute; neither is a construction of a statute by a
department charged with its execution to be held conclusive and
binding upon the courts of the country unless such construction has
been continuously in force for a long time. The cases cited go to
that extent, and no further. In regard to the law under
consideration, the construction of it by the Treasury Department
has not been uniform. The construction contended for by defendants
in error first arose in 1876, and lasted only until 1885, since
which time the construction has been the same as in this decision.
There is no such long and uninterrupted acquiescence in a
regulation of a department, or departmental construction of a
statute, as will bring the case within the rule announced at an
early day in this Court, and followed in very many cases, to-wit,
that in case of a doubtful and ambiguous law, the contemporaneous
construction of those who have been called upon to carry it into
effect is entitled to great respect, and should not be disregarded
without the most cogent and persuasive reasons.
Edwards v.
Darby, 12 Wheat. 206;
United States v.
Hill, 120 U. S. 169,
120 U. S. 182;
Robertson v. Downing, 127 U. S. 607, and
very many other cases.
The judgment of the circuit court is reversed, and the case
is remanded to that court, with directions to set aside the verdict
and grant a new trial.
MR. JUSTICE BREWER dissented from this opinion and judgment on
the ground that the practice of the department at the time the
proceedings in the custom house took place, and the action of the
Secretary of the Treasury in the matter of the protest and appeal,
ought to take the case out of what he concedes to be the correct
construction of the statute.