It appearing that at the date of the transactions in
controversy, more than thirty years ago, it was the custom for
importers to pass in protests with the entries, the Court may
presume that the usual course was pursued in respect of a protest
produced under subpoena at the trial from the proper repository,
where it had been lying for a long time, and that it was made and
served at its date, and before the payment of duties.
Two papers attached together by a wafer and signed on the bottom
of the lower one, which when read together make a protest against
two exactions of duties, are to be treated as a unit.
Page 138 U. S. 563
A protest against the exaction of duties is sufficient if it
indicates to an intelligent man the ground of the importer's
objection to the duty levied upon the articles, and it should not
be discarded because of the brevity with which the objection is
stated.
When such a protest is in proper form and attached to the
invoice, the omission of date is immaterial.
The failure of a collector of customs to conform to a Treasury
regulation requiring him to record protests ought not to prejudice
the rights of the importer.
A protest, otherwise valid and correct in form, against an
exaction of excessive duties upon an importation of goods, which
concludes "you are hereby notified that we desire and intend this
protest to apply to all future similar importations made by us,"
having been long and consistently held by the court below to be a
sufficient and valid protest against prospective importations, so
that that doctrine has become the settled law of that court, and
the general practice prevailing in the port of New York, this Court
accepts it as the settled law of this Court.
In all cases of ambiguity, the contemporaneous construction not
only of the courts but of the departments, and even of the
officials whose duty it is to carry the law into effect, is
controlling.
This was a consolidation of six actions originally begun between
September 1, 1857, and March 1, 1860, in the state courts of New
York, and removed to the circuit court of the United States. The
actions were brought against the collector of customs for the port
of New York to recover back duties alleged to have been illegally
exacted upon certain importations of
mousselines de laine
made by the co-partnership of which the defendants in error are the
survivors. The consolidated suit was tried in October, 1887, and a
verdict found for the plaintiffs under the direction of the court
for $450,563.44. Judgment having been entered against the executors
of Augustus Schell, deceased, late collector of the port, a writ of
error was sued out from this Court. The real question at issue was
whether
mousselines de laine were under the Act of March
3, 1857, 11 Stat. 192, subject to a duty of 19 or 24 percent. That
question, however, was excluded from this case under a
stipulation
"by and between the respective parties to this action that
mousselines de laine, composed of worsted, or worsted with
a satin stripe, were, under the tariff acts of 1857, subject to a
duty of 19 percent as claimed by the plaintiffs."
As the duty exacted and paid was 24 percent, judgment was
Page 138 U. S. 564
rendered for the difference, and the only questions argued by
counsel in this Court arose upon the admissibility of testimony and
the form, sufficiency, and service of protests accompanying the
several entries of merchandise, which are set forth and considered
in the opinion of the court.
MR. JUSTICE BROWN, after stating the facts as above, delivered
the opinion of the Court.
Apparently in consequence of the decision of this Court in
Cary v.
Curtis, 3 How. 236, to the effect that, under the
Act of March 3, 1839, an action for money had and received would
not lie against a collector of customs for duties paid under
protest, Congress, on February 26, 1845, enacted (5 Stat. 727) that
nothing contained in the act of 1839 should be construed to take
away or impair the right of any person who may have paid duties
under protest, to maintain an action at law against a collector to
ascertain the legality of such payment,
"nor shall any action be maintained against any collector to
recover the amount of duties so paid under protest unless the said
protest was made in writing, and signed by the claimant at or
before the payment of said duties, setting forth distinctly and
specifically the grounds of objection to the payment thereof."
The questions presented by the record in this case turn upon the
proper construction of this proviso and upon the proper practice to
be pursued in making and serving such protest.
1. Defendants objected to the receipt of Exhibit 5, and 26 other
exhibits standing in like position, with the protests attached
thereto. These exhibits were all entries of merchandise imported by
plaintiffs in various ships, to which were appended the usual
consignee's oath, and a specific protest duly signed by plaintiffs'
firm was also attached to each one by a wafer. Objection was made
to the admission of such documents upon the ground that it did not
appear that such
Page 138 U. S. 565
protests had been served upon the collector as required by the
act of 1845, and second that, if so served, it did not appear that
they had been served at or before the payment of the duty sought to
be recovered, as required by the same act.
The act of 1845 requires first that the protest shall be in
writing; second that it shall be signed by the claimant; third that
it shall be made at or before the payment of the duties; and,
fourth that it shall set forth distinctly and specifically the
grounds of objection to the payment of such duties. But so far as
respects the manner or the person upon whom protest shall be
served, the statute is silent, and we can only infer that from the
nature of the proceedings it must be served upon the collector or
his subordinate officer, or the person who receives the entry or
the payment of the duties. In this silence of the statute, and in
the absence of any Treasury regulation upon the subject, it would
probably be competent for the collector to receive such protest
personally or delegate his authority to one of his deputies. It is
not at all singular that after the lapse of more than thirty years,
it should be impossible to prove upon whom the service was made,
but we are informed by the testimony of a custom of passing
protests in with the entry, which seems to have prevailed for some
time prior to the date of these transactions and to have continued
until the Treasury regulations of 1857 were adopted. Now as these
protests were produced under subpoena at the trial from the proper
repository, where they appeared to have been lying for a long time,
it is not unreasonable to infer that the usual course was pursued
and the protests served according to the custom of the office. With
regard to the conduct of a public office, the presumption is that
everything is done properly, and according to the ordinary course
of business, or, as expressed in the maxim,
omnia praesumuntur
rite esse acta. 1 Greenleaf Ev. sec. 38. The same presumption
would justify us in inferring that the protest was made and served
at its date, which, in the case of Exhibit 5, was January 30, 1858,
and before the payment of duties, which appears upon the face of
the entries to have been made February 1, or two days after the
protest was signed.
Page 138 U. S. 566
2. Objection was also made to Exhibits 6, 11, and 13 upon the
grounds we have already held to be insufficient and upon the
further ground that the protest consisted of two forms of protest,
one printed on white, like Exhibit No. 5, but unsigned, and the
other on blue paper, the latter being pasted to the former, and
signed by the plaintiffs' firm. The two papers thus pasted together
and signed as aforesaid were attached to the entry by a wafer, and,
read together, made a protest against two exactions,
viz.:
first, an excessive duty upon the
mousseline de laines,
and second the exaction of a duty upon two and one-half and three
percent commissions when, as claimed, such goods were liable only
to duty upon two percent commissions. This consolidated protest was
dated "New York, Feb. 10th," and addressed, immediately following
the date, to "Augustus Schell, Esq., Collector of Customs," and
signed at the bottom by Lachaise, Fauche & Co., the importers.
Had it not been for the repetition of the word "sir" at the
beginning of each section of the protest, and the further fact that
the protest was on two pieces of paper, there would be nothing to
indicate that the plaintiffs did not intend in one communication to
protest against the two exactions,
viz., the excessive
duty on the
mousseline de laines and the duty on the
commissions. While the protest is signed only at the end of the
second piece of paper, no one would be misled into supposing that
the signature, and the final clause applying the protest to all
future similar imports, were not intended to apply as well to the
protest against the duty assessed upon the
mousseline de
laines as upon the commissions. And it is evident from the
protest books of the custom house in New York that the entire paper
was understood by the official who recorded it as a single protest
against two illegal exactions. Authorities are plentiful to the
effect that papers attached together even by a pin are to be
treated as a unit, constituting one entire contract or memorandum.
Thus, in
Tallman v. Franklin, 14 N.Y. 584, it was held
that where an auctioneer pinned a letter to him from the owner of
certain real estate to be sold, which stated the terms of sale, on
a page of his sales book, and then made the residue of the
Page 138 U. S. 567
entries requisite to constitute a memorandum of the contract of
sale on the same page of the book, and subscribed his name to it,
the letter was to be taken as a part of the memorandum subscribed
by the auctioneer, and was sufficient to take it out of the statute
of frauds. To the same effect are
Hutcheon v. Johnson, 33
Barb. 395, where certain papers which had been pasted together were
construed as a single memorandum;
Ginder v. Farnum, 10
Penn.St. 98, where the sheets of a will were fastened together by a
string, and
Martin v. Hamlin, 4 Strob. 188. If, however,
the papers are not connected together in fact, they are not
considered as connected in law, unless at least the paper signed
refers in some way to the other, which may then be construed as
forming a part of it.
Hinde v. Whitehouse, 7 East 558;
Kenworthy v. Schofield, 2 B. & C. 945. The proper test
is whether a person reading these papers would be deceived or
misled as to the actual intention of the writer. We think there can
be but one answer to this, and we hold the objection was not well
taken.
3. The objections to the admission of Exhibits 1 and 2 are also
untenable. These protests were in the following form:
"New York, July 25, (27), 1857. Augustus Schell, Esq., Collector
of the Port of New York. Sir: We hereby protest against the payment
of a duty of 24 percent, charged by you on worsted stuff goods,
claiming that under existing laws said goods are only liable to a
duty of 19 percent as a manufacture of worsted. We pay the amount
exacted to obtain possession of the goods, claiming to have the
difference refunded. Lachaise, Fauche & Co."
Objection was made to these protests upon the ground that
neither of them distinctly and specifically set forth the ground or
grounds of objection to the payment of the duties exacted on any of
the importations mentioned therein, as required by the act of 1845.
In
Converse v.
Burgess, 18 How. 413,
59 U. S. 416,
the protest was objected to upon the ground that it stated only
"that the goods were not fairly and faithfully examined by the
appraisers," and the proof offered was that the appraisers did not
examine any of the original packages, and only saw samples which
had been taken several weeks before, and
Page 138 U. S. 568
which would not afford a true criterion by which to judge of the
importation. Mr. Justice Campbell observed:
"This statute was designed for practical use by men engaged in
active commercial pursuits, and was intended to superinduce a
prompt and amicable settlement of differences between the
government and the importer. The officers of the government on the
one part, and the importer or his agent on the other, are brought
into communication and intercourse by the act of entry of the
import, and opportunities for explanation easily occur for every
difference that may arise. We are not, therefore, disposed to exact
any nice precision, nor to apply any strict rule of construction
upon the notices required under this statute. It is sufficient if
the importer indicates distinctly and definitely the source of his
complaint and his design to make it the foundation for a claim
against the government."
The protest was held to be sufficient. So, in
Arthur v.
Morgan, 112 U. S. 495, it
was held that a protest against paying a certain duty upon a
carriage, which stated that the carriage was "personal effects,"
and had been used over a year, and that, under the Revised
Statutes, "personal effects in actual use" are free from duty, was
sufficient, upon which the amount paid for duty could be recovered
back, on the ground that the carriage was free from duty as
"household effects" under the same statute. It was said by MR.
JUSTICE BLATCHFORD:
"The protest is not required to be made with technical
precision, but is sufficient if it shows fairly that the objection
afterwards made at the trial was in the mind of the party, and was
brought to the knowledge of the collector, so as to secure to the
government the practical advantage which the statute was designed
to secure."
In the case under consideration, the importer claimed in
substance in his protest that the duty of 24 percent was excessive
and that the goods were liable only to a duty of 19 percent "as a
manufacture of worsted." His insistence upon classifying them as a
manufacture of worsted indicated clearly that the objection made
was substantially to their classification as
"de laines."
We think the collector, upon reading this protest, could have no
doubt in his mind that the intention of the importer was to
Page 138 U. S. 569
object to the failure to classify the goods as a manufacture of
worsted. Some allowance must be made for the magnitude of business
done at a large port and the hurry and confusion necessarily
incident to its transaction, as well as for the proneness of
commercial men to look at the substance of thing, rather that at
the form in which their ideas are expressed. A protest which
indicates to an intelligent man the ground of the importer's
objection to the duty levied upon the articles should not be
discarded because of the brevity with which the objection is
stated.
4. Exhibits 14 and 41 contain protests which are without date,
and objection was made to them upon that ground. But as it appeared
that these protests were in proper form, the same form as No. 5,
and were attached to the invoice of merchandise mentioned therein,
and duly signed by the plaintiffs' firm, we regard the omission of
the date as quite immaterial.
5. Objection was also made to the admission of twenty-two
protests upon the ground that there was no evidence that these had
been copied in the record kept for that purpose. Treasury
regulation No. 387 provided that
"Whenever duties are paid under protest, collectors of customs
will have the protest carefully and accurately copied at length in
a record to be kept for that purpose, properly compared, verified,
and certified as a correct copy by the officer or officers making
such comparison, the number and date of entry, name of importer,
vessel, and description of merchandise in regard to which the
protest is made, to be duly stated on the record for the purpose of
identification. This precaution is deemed necessary as well for the
protection of the importer as the United States in the event of the
loss of the original protest by accident or otherwise."
The object of this regulation is thus stated to be in terms to
supply secondary evidence in case of the loss of the original
protest. If the original be produced, the record is of no value,
and in any event the failure of the collector to conform to the
Treasury regulation ought not to prejudice the rights of the
importer. The latter would be powerless to require such record to
be made, and the omission
Page 138 U. S. 570
to make it in a particular case should not be imputed to him. We
have already held that the production of the protest from its
proper custody was sufficient evidence that it had been served
according to law.
6. The only remaining question to be considered is that of
prospective protests -- and this is really the main question in the
case. In twenty-seven entries, there are no protests to be found,
nor is there any record nor any reference in the protest books of
the custom house indicating that any protest was served in the
cases of such entries. These, however, are claimed by the
plaintiffs to be covered by the concluding clause of the double
protest No. 6, which is in the following words: "You are hereby
notified that we desire and intend this protest to apply to all
future similar importations made by us." The same clause is found
in the protest accompanying entries Nos. 11 and 13, but in none
others. Exhibit No. 14 is a specific protest attached to the entry.
As no claim was made that any specific protest, however served, had
any prospective effect, it follows that the claim for a repayment
of duties on the twenty-four exhibits after No. 13 is based upon
the prospective clauses appearing in the charges and commission
form of the pasted papers of Exhibits Nos. 6, 11, and 13, or is
based on such clause or clauses of one or more of these three
exhibits. We attach no significance to the fact that the
prospective clause of the protest is found at the end of the double
protest, following the protest against the duty upon the
commission, and is not found attached to that portion of the
protest against the duty upon the
mousseline de laines. As
we have already held that the two protests constitute one paper, it
necessarily follows that the concluding clause regarding the
prospective protests should be applied to the entire paper, and to
the protest against the duty upon the goods, as well as upon the
commissions.
The objection to the admission of these papers raised distinctly
the question as to the validity of prospective protests. It is
admitted that the doctrine held by the court below upon the trial
of this suit that the prospective protests set forth
Page 138 U. S. 571
in the clauses attached to the special protests are sufficient
as to all similar importations made by the same importer, is now,
and has been for a long time, the settled law of that court, and
the general practice prevailing in the port of New York. Such
practice is claimed to be authorized by the case of
Marriott v.
Brune, 9 How. 619, decided in 1850. This was also
an action for duties illegally exacted, in which the question was
made as to the validity of a certain protest, which was somewhat
vague in its terms, but was construed by the court as applying
prospectively to all importations of "sugar and molasses." After
this prospective protest, the plaintiffs made a special protest in
each of six several importations, but there were thirteen other
importations, made after the general protest, respecting which they
relied upon the efficacy of the general protest. The court held
that as the subsequent entries
"all depended on a like principle, as from the circulars of the
department some doubt existed whether the excess of duties would
not voluntarily be refunded, as the amounts in each importation
were small, and both parties thus became fully aware that the
excess in all such cases was intended to be put in controversy, and
reclaimed, we are inclined to think this written protest may fairly
be regarded as applying to all subsequent cases of a like character
belonging to the same parties."
This case was in affirmance of the opinion in
Brune v.
Marriott, Taney 132, in which Chief Justice Taney said
that
"A particular protest in each case is not required by the law.
The object of the protest is merely to give notice to the officer
of the government that the importer means to claim the reduction,
and to make known to the collector the grounds upon which he makes
the claim. In these receipts, this protest is sufficiently
explicit, and covers all the cargoes upon which the duties had not
been finally assessed and adjusted by the collector."
It was said of this case in
Davies v. Miller,
130 U. S. 284,
130 U. S. 287,
that
"though criticized in
Warren v. Peaslee, 2 Curtis 231,
it was generally regarded and acted on as laying down a general
rule establishing the validity of prospective protests,"
citing
Steegman v. Maxwell, 3 Blatchford 365;
Hutton v. Schell, 6 Blatchford 48, and
Fowler v.
Redfield,
Page 138 U. S. 572
there cited;
Wetter v. Schell, 11 Blatchford 193, and
Chouteau v. Redfield, there cited. But as this case has
been generally accepted as settling the law for this Court, and the
practice has grown up throughout the country of paying duties under
such protests -- a practice to which eminent judges have lent their
sanction, we think it too late for us to be called upon to overrule
it. It is an acknowledged principle of law that if rights have been
acquired under a judicial interpretation of a statute which has
been acquiesced in by the public, such rights ought not to be
impaired or disturbed by a different construction, and if,
notwithstanding Treasury Regulation No. 384, requiring protests to
be special in each case, a practice has grown up in the different
ports of entry of receiving prospective protests, the annulment of
such practice might entail serious consequences upon importers who
had acted upon the faith of its validity. As early as 1803, it was
held by this Court in
Stuart v.
Laird, 1 Cranch 299, that a practical construction
of the Constitution that the Justices of the Supreme Court had a
right to sit as circuit judges, although not appointed as such, was
not open to objection. "It is sufficient to observe," says the
Court,
"that practice, and acquiescence under it, for a period of
several years, commencing with the organization of the judicial
system, affords an irresistible answer, and has indeed fixed the
construction. It is a contemporary interpretation of the most
forcible nature. This practical exposition is too strong and
obstinate to be shaken or controlled. Of course the question is at
rest, and ought not now to be disturbed."
In all cases of ambiguity, the contemporaneous construction not
only of the courts but of the departments and even of the officials
whose duty it is to carry the law into effect is universally held
to be controlling.
McKeen v. De Lancy's
Lessee, 5 Cranch 22;
Edwards'
Lessee v. Darby, 12 Wheat. 206;
United
States v. Alexander, 12 Wall. 177;
Peabody v.
Stark, 16 Wall. 240;
Hahn v. United
States, 107 U. S. 402;
Rogers v. Goodwin, 2 Mass. 475; Endlich on Statutes sec.
357. Nor do we think the fact that in some cases specific protests
were filed after the general prospective protest necessarily shows
an intention to abandon
Page 138 U. S. 573
any future claim under the prospective clause. If it were any
evidence at all of such intent, it might properly be submitted to a
jury, but defendants had no right to a peremptory instruction in
their favor.
This disposes of all the material questions involved, and it
results that the judgment of the court below must be
Affirmed.