Where merchant appraisers were appointed, under the tariff acts
of 1842 and 1846, to review the decision of the public appraisers,
it was a question of fact for the jury to decide whether the
examination of samples drawn some weeks before their appraisement
was a substantial compliance with the law which required them to
examine one package at least of every ten packages of goods, wares,
and merchandise.
Being a question of fact for the jury, evidence was admissible
tending to show that they had not complied with the law.
The protest being "that the goods were not fairly and faithfully
examined by the appraisers" was a sufficient notice of the grounds
upon which the importers contended that the appraisement was
unlawful. It was not necessary to set forth specifically the
reasons upon which the charge was founded.
The facts of the case are stated in the opinion of the court. It
is only necessary to add the protest and evidence offered as they
were stated in the bill of exceptions, namely:
"I this day pay to Philip Greely, Jr., collector of this port,
on behalf of Messrs. B. Burgess and Sons, the sum of sixteen
hundred forty-three dollars and 48/100, more or less, claimed by
him as due to the United States from them on merchandise imported
by them in the brig Eliza Burgess under protest, with the intention
of reclaiming the same or any part thereof as may be found to have
been illegally paid by them. Said sum is claimed by advance of
value on the merchandise by the appraisers, thereby increasing the
duties and assessing a penalty -- all of which we protest against
on the ground of fair valuation in the invoice and that the goods
were not fairly and faithfully examined by the appraisers."
"N. B. GIBBS"
"The plaintiffs further offered to prove under said protest that
the merchant appraisers did not examine or see any of the original
packages of the merchandise in question, and only saw samples which
had been taken on the 26th of April, 1850, from one in ten of the
packages described in the invoice, and that
Page 59 U. S. 414
such samples, so drawn and exposed to the air, would not afford
a fair criterion by which to judge of the importation, and claimed
the right to go behind the return of the said merchant appraisers
on the ground that they had not examined the sugars as required by
law, and to put it as a question of fact to the jury without
alleging fraud."
"The defendant objected to the admission of such evidence to go
to the jury in the absence of fraud on the part of the appraisers,
and claimed that their decision was in the nature of an award, and
final under the statute, and not open under this protest. But this
court ruled that the evidence was admissible, and that the
plaintiffs might go to the jury on the facts whether the
examination made by the merchant appraisers was, in substance and
effect, equivalent to an examination of one package in ten of the
importation, and if it was not, that the appraisement was void.
Whereupon the counsel for the defendant did then and there except
to the said rulings of the court, and thereupon the jury returned a
verdict for the plaintiffs, for $2,127.68."
MR. JUSTICE CAMPBELL delivered the opinion of the Court.
The intestate of the plaintiff is charged in this judgment for
an excess of duties collected by him in his capacity of collector
of customs at the port of Boston under color of a law of the United
States.
The defendants in April, 1850, imported into Boston an invoice
of sugars from the Island of Cuba, and made entry as in case of
goods purchased by the production of the invoice and an oath that
it exhibited a just and faithful account of the actual cost and all
charges thereon &c. The public appraisers advanced the
valuation of the merchandise contained in the invoice ten percent
above the invoice price, and made their return to the collector
accordingly, the 14th May, 1850. From this valuation the defendants
appealed, and merchant appraisers were appointed to make a new
appraisement. These returned their report the 4th June, to the
effect that the sugars could not have been purchased at the time of
exportation for less than the sum assessed by the appraisers, at
the principal markets of Cuba.
Duties were levied according to this appraisement, and also an
additional duty of 20 percent under the 8th section of the Act of
30 July, 1846. These duties were paid 4 June, 1850, under a
protest, by the defendants, with the declared "intention
Page 59 U. S. 415
of reclaiming the same or any part thereof as may be found to
have been illegally paid by them," and affirm as the ground of
their protest the "fair valuation in the invoice, and that the
goods were not fairly and faithfully examined by the
appraisers."
Upon the trial of the cause, the importers (defendants) offered
to prove that the merchant appraisers did not examine nor see any
of the original packages of the merchandise in question, but only
saw samples which had been taken on the 26th April, 1850, from one
in ten of the packages described in the invoice, and that such
samples so drawn and exposed to the air would not afford a true
criterion by which to judge of the importation, and claimed the
right to go behind the return of the said merchant appraisers on
the ground that they had not examined the sugars as required by
law, and to put that as a question of fact to the jury, without
alleging fraud.
The collector plaintiff's intestate objected to this evidence,
and claimed that the decision of the appraisers was in the nature
of an award and final under the statute, and not open under this
protest, in the absence of fraud, to review.
The circuit court admitted this evidence, and decided that the
importers defendants might go to the jury on the facts whether the
examination made by the merchant appraisers was in substance and
effect equivalent to an examination of one package in ten of the
importation, and if it was not, that the appraisement was void.
A verdict and judgment were rendered in favor of the importers,
and these decisions of the circuit court have been assigned for
error in this Court.
The right of an importer who has paid money under a valid
protest to a collector of the customs for duties illegally assessed
to maintain an action for its return has been acknowledged by
Congress and in this Court. 5 Stat. 727, c. 22;
Greely v.
Thompson, 10 How. 225. The only inquiries in such
an action are whether the duties have been legally charged and does
the protest conform to the act of Congress above cited? The
ascertainment of the value of imports upon which the assessment of
duties is made is confided in the first instance to officers of the
government, and in the case of dissatisfaction of the importer with
their assessment, to discreet and experienced merchants familiar
with the character and value of the goods in question, whose
decision is final provided it is made in pursuance of law.
They are required by all reasonable ways or means in their power
to ascertain, estimate, and appraise "the true and actual market
value and wholesale price of the import," at the time and place or
places specified in the statutes, "any invoice or
Page 59 U. S. 416
affidavit thereto to the contrary notwithstanding;" they are
authorized
"to call before them and examine upon oath or affirmation any
owner, importer, consignee, or other person, touching any matter or
thing they may deem material in ascertaining the true market value
or wholesale price of any merchandise imported, and to require the
production, on oath or affirmation, of any letters, accounts, or
invoices in his possession relating to the same."
It is the duty of the collector to designate on the invoice at
least one package of every invoice, and one package at least of
every ten packages of goods, wares, and merchandise, and a greater
number, should he, or either of the appraised, and deem it
necessary, to be opened, examined, and appraised, and shall order
the package or packages so designated to the public stores for
examination. 5 Stat. 563-565, §§ 16, 17, 21. The appraisers take an
oath diligently and faithfully to examine and inspect such goods,
wares, and merchandise as the collector may direct, and truly to
report, to the best of their knowledge and belief, the true value
thereof. 3 Stat. 735, § 16.
These acts of Congress provide for the appointment, regulate the
duties, and impose the limitations on the authority of the
appraisers, and determine the conditions on which the validity of
their assessment depends. All their powers are derived from these
acts, and it is their duty to observe the restrictions, and to obey
the directions they contain. In the present instance, there was a
neglect of the positive mandate "to open, examine, and appraise one
package of every invoice, and one package, at least, of every ten
packages of goods, wares, and merchandise," and the jury has found
that the inquiry they made was not, in substance nor in effect, an
equivalent for such an examination.
We are therefore of the opinion that the importer was not
precluded by their return from disputing the sufficiency or
accuracy of their assessment. But to enable the importer to do
this, he must, before making payment of the duties, enter "a
protest," in writing, signed by him, setting forth, "distinctly and
specifically, the grounds of objection" to the payment of the
duties. In the present instance, there was a protest, to which
there is no objection, except that its statement was not
sufficiently distinct and specific. The ground of objection stated
in the protest is "that the goods were not fairly and faithfully
examined by the appraisers."
And the proof offered was that the appraisers did not examine
nor see any of the original packages of the merchandise, and only
saw samples which had been taken several weeks before and which
would not afford a true criterion by which to judge of the
importation.
This statute was designed for practical use by men engaged
Page 59 U. S. 417
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.
In the present instance, he asserts that the goods were not
fairly and faithfully examined by the appraisers. This, we think,
was sufficient, without disclosing the grounds upon which he
contended that the appraisement was unfair or unfaithful.
In
Jones v. Bird, 5 B. & A. 837, which arose under
a local act of Parliament relating to the commissioners of sewers
for Westminster, which provides that no plaintiff should recover in
any action for anything done under certain acts of Parliament
unless notice was given to the defendants specifying the cause of
action, Chief Justice Abbott said:
"I think the notice sufficient, and that it ought not to be
construed with great strictness, its object being merely to inform
the defendant substantially of the ground of the complaint, but not
of the mode or manner in which the injury has been sustained."
And Justice Bayley said:
"A notice of this sort does not require the same precision as a
declaration. It is quite sufficient if it calls the attention of
the defendants to the general nature of the injury, so that they
may go to the premises and see what the ground of complaint
is."
Under the Act of 24 George II. c. 44, which required a notice to
justices of the peace which should contain, "clearly and
explicitly, the course of action which the party hath, or claimeth
to have," the Court of Exchequer held a notice sufficient although
it was in the form of a declaration and comprised not only the
specific complaint but all the redundancy and general averments
which the experience of pleaders has led them to introduce into
that description of pleadings,
"for it could not have misled nor imposed any difficulty on the
defendants as to the tender of the amends they might have thought
fit to make, and is therefore sufficient."
Gimbert v. Coyney, McClelland & Y. 469.
These authorities disclose a sound principle of interpretation
in regard to such notices, and support the principle we have
announced in respect to that under consideration.
Upon the whole case, we think there is no error in the record,
and judgment is
Affirmed.
Page 59 U. S. 418
MR. CHIEF JUSTICE TANEY, MR. JUSTICE DANIEL, and MR. JUSTICE
NELSON dissented.
MR. CHIEF JUSTICE TANEY.
I dissent from the opinion of the Court, being of opinion that
the grounds of objection are not "distinctly and specifically" set
forth in the protest within the meaning of the act of Congress, and
that the protest did not apprise the collector of the particular
objection taken at the trial, and which could easily have been
removed by another appraisement if it had been brought to the
notice of the collector in the protest.
MR. CHIEF JUSTICE DANIEL and MR. CHIEF JUSTICE NELSON concurred
with THE CHIEF JUSTICE.