Gloves made of cotton and silk in which cotton was the material
of chief value were imported in January, 1874, and charged by the
collector with a duty of 60 percent
ad valorem, that rate
of duty being chargeable only on "silk gloves" under the Act of
June 30, 1864, c. 171, 13 Stat. 210, and on "ready made clothing of
silk, or of which silk shall be a component material of chief
value," under § 3 of the Act of March 3, 1865, c. 80, 13 Stat. 493.
The importer protested and appealed and brought suit. His protest
stated that the goods were only liable to a duty of 35 percent less
10 percent "being composed of cotton and silk, cotton chief part,
the duty of 60 percent being only legal where silk is the chief
part." The goods were made on frames.
Held:
(1) Under § 14 of the Act of June 30, 1864, c. 171, 13 Stat.
214, 215, the protest set forth distinctly and specifically the
grounds of the objection of the importer to the decision of the
collector, and was sufficient.
(2) It was immaterial that the protest did not specify that the
gloves were made on frames.
Page 144 U. S. 29
(3) The goods were dutiable only at 35 percent less 10 percent
under § 22 of the Act of March 2, 1861, 12 Stat. 191, and § 13 of
the Act of July l4, 1562, 12 Stat. 555, 556, 569, and under § 2 of
the Act of June 6, 1572, 17 Stat. 231.
The case is stated in the opinion.
MR. JUSTICE BLATCHFORD delivered the opinion of the Court.
This is an action at law, brought in the Superior Court of the
City of New York. July 15, 1874, by Otto Heinze and Francis Gross,
against Chester A. Arthur, collector of the port of New York, to
recover $174.99, as duties paid under protest on gloves made of
cotton and silk. The goods were entered at the customhouse of the
port of New York, January 14, 1874, and the duties were paid the
same day. The protest was filed February 6, 1874, and an appeal was
duly taken to the Secretary of the Treasury, February 24, 1874, and
decided April 30, 1874. The suit was duly removed by the defendant
into the Circuit Court of the United States for the Southern
District of New York by writ of certiorari. The only question
involved in the case is as to the sufficiency of the protest. The
defendant having died, his executors were substituted as defendants
in his stead in January, 1887. The case was tried before the court
and a jury in June, 1888, and a verdict was rendered for the
defendants under the direction of the court, followed by a judgment
in their favor, for costs, to review which the plaintiffs have
brought a writ of error.
The protest signed by the plaintiffs was as follows:
"On an importation of the undersigned firm, per steamer
City
of Brussels from Liverpool, duty paid January 14, 1874,
containing partly cotton gloves mixed with silk, the appraisers of
this port have levied a duty of 60%
ad valorem, although
the
Page 144 U. S. 30
article is only liable to a duty of 35% less 10%, being composed
of cotton and silk, cotton chief part; the duty of 60% being only
legal where silk is the chief part. We have paid the excess in
order to get possession of the goods, but shall hold you and the
government responsible for the return of the same."
The bill of exceptions states that the plaintiffs' counsel in
opening the case
"announced to the court and jury that they claimed that the
goods involved in the suit were dutiable at 35% either as 'gloves
made on frames,' under § 22 of the Act of March 2, 1861, and the
13th § of the Act of July 14, 1862, or as 'manufactures of cotton
not otherwise provided for' under § 6 of the Act of June 30,
1864."
It also states that the plaintiffs, to maintain the issues on
their part,
"introduced evidence tending to show that on January 13, 1874,
they had imported gloves made on frames, composed of cotton and a
slight admixture of silk, from 10 to 25% in value, and that the
collector, Chester A. Arthur, had assessed thereon a duty of 60%
ad valorem, which plaintiffs had paid;"
that all other requirements as to appeal and suit were complied
with; that thereupon the plaintiffs rested, and the defendants'
counsel moved the court to direct a verdict for them, on the ground
that the protest was insufficient, in that it did not distinctly
and specifically point out to the collector the ground of the
plaintiffs' objection to his classification, and contained no
allegation that the goods in question were made on frames, and that
while there were in force at the time the protest was served many
provisions of law (including those alluded to by the plaintiffs'
counsel in his opening, as well as others) providing for a duty of
35 percent, which might be applicable to the plaintiffs' goods,
there was nothing in the protest to show which one of them was
relied on by the importers; that the court granted the motion, and
the plaintiffs excepted, and that the jury, under the direction of
the court, found a verdict for the defendants.
The only statutory provision in force at the time this
importation of gloves composed of cotton and silk was made
Page 144 U. S. 31
under which it could be claimed they were chargeable with a duty
of 60 percent
ad valorem were § 3 of the Act of March 3,
1865, c. 80, 13 Stat. 493, which imposed a duty of 60 percent
ad valorem on "ready-made clothing of silk, or of which
silk shall be a component material of chief value," and § 8 of the
Act of June 30, 1864, c. 171, 13 Stat. 210, which imposed a duty of
60 percent
ad valorem on "silk . . . gloves;" the same
section imposing a duty of 50 percent
ad valorem on "all
manufactures of silk, or of which silk is the component material of
chief value, not otherwise provided for."
By § 22 of the Act of March 2, 1861, c. 68, 12 Stat. 191, a duty
of 30 percent
ad valorem was imposed upon
"caps, gloves, leggins, mitts, socks, stockings, wove shirts and
drawers, and all similar articles made on frames, of whatever
material composed, worn by men, women, or children, and not
otherwise provided for,"
and on
"clothing, ready made, and wearing apparel of every description,
of whatever material composed, except wool, made up or manufactured
wholly or in part by the tailor, seamstress, or manufacturer."
By § 13 of the Act of July 14, 1862, c. 163, 12 Stat. 555, 556,
an additional duty of 5 percent
ad valorem was imposed
on
"caps, gloves, leggins, mitts, socks, stockings, wove shirts and
drawers, and all similar articles made on frames, of whatever
material composed, worn by men, women, and children, and not
otherwise provided for,"
and on
"clothing, ready made, and wearing apparel of every description,
of whatever material composed, except wool, made up or manufactured
wholly or in party by the tailor, seamstress, or manufacturer;"
and also (page 557) upon "manufactures not otherwise provided
for, composed of mixed materials, in part of cotton, silk, wool or
worsted, hemp, jute, or flax."
By § 6 of the Act of June 30, 1864, c. 171, 13 Stat. 208, 209, a
duty of 35 percent
ad valorem was imposed "on cotton
shirts and drawers, woven or made on frames, and on all cotton
hosiery," and "on cotton braids, insertings, lace, trimming, or
bobinet, and all other manufactures of cotton, not otherwise
provided for."
Page 144 U. S. 32
By § 2 of the Act of June 6, 1872, c. 315, 17 Stat. 231, it was
enacted that on and after August 1, 1872, in lieu of the duties
imposed by law "on all manufactures of cotton of which cotton is
the component part of chief value," there should be levied,
collected, and paid 90 percent of the rates of duty then imposed by
law upon said articles, it being stated to be the intent of the
section "to reduce the existing duties on said articles ten
percentum of such duties."
It is contended for the defendants that the protest is
insufficient because it makes no reference to the gloves as "made
on frames," that the trial related exclusively to a classification
of the goods as "made on frames," that the protest was not distinct
or specific as to such goods, and that the paper called a "protest"
did not protest against anything.
As the importation in question was made in January, 1874, and
the Revised Statutes, according to § 5595 thereof, embraced only
the statutes of the United States, general and permanent in their
nature, in force on December 1, 1873, as revised and consolidated
by the commissioners, the question of the sufficiency of the
protest arises under the statutes which existed December 1,
1873.
By the Act of February 26, 1845, c. 22, 5 Stat. 727, the right
to maintain an action at law against a collector to ascertain and
try the legality and validity of a demand for a payment of duties,
and their payment under protest, was restored, but it was provided
that such action should not be maintained unless such protest
should be in writing,
"and signed by the claimant at or before the time of payment of
said duties, setting forth distinctly and specifically the grounds
of objection to the payment thereof."
It was also provided by § 14 of the Act of June 30, 1864, c.
171, 13 Stat. 214, 215, that 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 imported goods should be final and
conclusive against all persons interested therein unless the owner,
importer, consignee, or agent of the goods should, within ten days
after the ascertainment and liquidation of the duties by the proper
officers of the customs, give notice in writing to the collector,
if dissatisfied
Page 144 U. S. 33
with his decision, "setting forth therein, distinctly and
specifically, the grounds of his objection thereto."
In the present case, the entry was liquidated January 30, 1874,
and the protest was filed February 6, 1874. The sole question for
consideration is whether the protest in question set forth
distinctly and specifically the grounds of the objection of the
importers to the decision of the collector, assessing the duty of
60 percent
ad valorem on the gloves.
We think the protest was sufficient. The collector, having
assessed the duty of 60 percent, could have assessed it only under
§ 8 of the Act of June 30, 1864, 13 Stat. 210, which imposes that
rate of duty on silk gloves, or under § 3 of the Act of March 3,
1865, 13 Stat. 493, which imposes that rate of duty "on ready-made
clothing of silk, or of which silk shall be a component material of
chief value." The protest specifically states that the goods are
"partly cotton gloves, mixed with silk," and are "composed of
cotton and silk, cotton chief part, the duty of 60 percent being
only legal where silk is the chief part." The words "chief part,"
used twice in the protest, clearly mean that in the goods, composed
of cotton and silk, the cotton is the component material of chief
value, or the "component part of chief value," and that the silk is
not the "component material of chief value." In this respect, the
protest called the attention of the collector "distinctly and
specifically" to the grounds of objection of the importers to his
decision, namely, that he had, contrary to law, assessed a duty of
60 percent upon the gloves in that he had treated them as goods of
which silk was the "component material of chief value" when the
contrary was the fact, and the cotton, and not the silk, was the
"component material of chief value" or "component part of chief
value."
The protest further claimed that the gloves were liable to a
duty of only 35 percent, less 10 percent, and were in fact in any
event, liable to only that duty, whether liable to 30 percent,
under § 22 of the Act of March 2, 1861, 12 Stat. 191, with the 5
percent added under § 13 of the Act of July 14, 1862, 12 Stat.
555-557, or of 35 percent, under the Act of June 30, 1864, 13 Stat.
208, 209, with the reduction, as to
Page 144 U. S. 34
all those provisions, of 10 percent, under the Act of June 6,
1872, 17 Stat. 231.
It is entirely immaterial that the protest did not specify that
the gloves were made on frames. It was sufficient to state that the
gloves were composed of cotton and silk, and that the cotton was
the component material or part of chief value, and the silk was not
the component material of chief value. The importers were bound
only to state, as they did, that the duty of 60 percent was
illegal, and why it was illegal.
In
Arthur v. Unkart, 96 U. S. 118, it
was held by this Court that gloves like those in question, made on
frames, and composed of cotton and silk, in which cotton was the
component part of chief value, were not dutiable at 60 percent,
under § 8 of the Act of June 30, 1864, 13 Stat. 210, but were
dutiable only under § 22 of the Act of March 2, 1861, 12 Stat. 191,
and § 13 of the Act of July 14, 1862, 12 Stat. 555-557, and under §
2 of the Act of June 6, 1872, 17 Stat. 231.
Under the ruling of this Court in
Davies v. Arthur,
96 U. S. 148,
96 U. S. 151,
the objection set forth in the protest in this case to the decision
of the collector was so distinct and specific as, when fairly
construed, to show that the objection taken at the trial was at the
time in the mind of the importer, and was sufficient to notify the
collector of its true nature and character, to the end that he
might ascertain the precise facts and have an opportunity to
correct the mistake and cure the defect, if it was one which could
be obviated.
This rule was affirmed in
Greely's Administrator v.
Burgess, 18 How. 413,
59 U. S. 416;
Arthur v. Dodge, 101 U. S. 34,
101 U. S. 37;
Arthur v. Morgan, 112 U. S. 495,
112 U. S. 501,
and cases there cited, and
Schell's Executors v. Fauche,
138 U. S. 562,
138 U. S.
567-569.
The judgment of the circuit court is
Reversed, and the case is remanded to that court with an
instruction to grant a new trial.