The eighth section of the Act of Congress, passed in 1846, 9
Stat. 42, exacting a penal duty of twenty percent when the
appraised value of goods imported exceeds the invoiced value by ten
percent, does not include the case of an entry by a manufacturer
who has produced the article imported.
Page 62 U. S. 252
Nor did previous laws prior to the Act of March 3, 1857, Session
laws, page 1991 justify this penalty. The last-mentioned law puts
goods manufactured and goods purchased upon the same footing in
this respect.
But by the act of 1842, an addition of fifty percent to the duty
is laid upon goods imported by a manufacturer, where the appraised
value exceeded the invoiced value by ten percent
The appraisal of the goods at the customs was properly made
under the 17th section of the act of 1842, although imported and
entered by the manufacturer.
This was an action brought by Belcher & Co. to recover back
from the collector $6,159.20, which they alleged to have been
exacted as illegal duties, and which they had paid under
protest.
The following was the statement of facts in the court below:
1. That the plaintiffs imported into New Orleans from the Island
of Cuba the several cargoes of reboiled molasses, concentrated
molasses, sugar house molasses, cistern bottoms, and cistern
sugars, fully set forth in the petition.
2. That said importations were made on entries, from which it
appears that the importers were the manufacturers of the goods
imported, and not purchasers thereof in the market.
3. That upon the appraisement of the merchandise so imported as
aforesaid, the value thereof was fixed by the appraisers at a sum
exceeding the invoice value by more than ten percent, and that no
appeal from this appraisement was made by the importers to merchant
appraisers.
4. That the defendant thereupon exacted from the plaintiff a
penal duty of twenty percentum on the appraised value of the
merchandise imported, and that said penal duty, so levied as
aforesaid, amounted to the sum of $6,159.20.
5. That said penal duty was paid under protest, as shown by the
protests filed, which are made part of this statement of facts.
Upon this statement of facts, the circuit court decided that the
said merchandise was not legally subject to a penal duty of twenty
percent on the appraised value aforesaid, but was legally subject
to a penal duty of fifty percent on the amount of
Page 62 U. S. 253
duties which would have been properly chargeable if the invoice
had expressed the true value of the merchandise imported, and the
excess of penal duty so charged as aforesaid being ascertained to
amount to $1,539.80, which ought to be returned to plaintiffs.
The plaintiffs brought the case up to this Court.
MR. JUSTICE NELSON delivered the opinion of the Court.
The suit was brought in the court below to recover back from the
collector of the port of New Orleans an excess of duties paid by
the plaintiffs. The goods upon which the duties were imposed were
certain invoices of molasses and sugars, imported from Matanzas, in
the Island of Cuba, in the year
Page 62 U. S. 254
1852. They were imported by the manufacturer, and, on an
appraisal of the value at the customs in New Orleans, the appraised
value exceeded the invoice value upwards of ten percentum;
whereupon the collector imposed and additional duty of twenty
percentum upon the appraised value, under the 8th section of the
act of 1846, which was paid under protest.
The court below held that this additional duty was improperly
imposed, under the Act of 30 July, 1846, as the 8th section of that
act applied only to merchandise purchased in the foreign market,
and did not embrace goods imported by the manufacturer. The court
further held that the several shipments were subject to the
increased duty imposed under the 17th section of the Act of August
30, 1842, and allowed the plaintiff to recover the excess over and
beyond the amount chargeable under this last section.
The principal question in the case is whether or not the 17th
section of the act of 1842 applies in the appraisal of merchandise
imported by the manufacturer.
The Act of Congress of March 1, 1823, recognized a distinction
between goods imported which were purchased by the owner in the
foreign market, and goods imported by the manufacturer himself, and
prescribed separate and distinct oaths to be taken before the
collector, sec. 4. That act also prescribed, as a rule for the
appraisal of the goods, that to the actual cost if the same shall
have been actually purchased, or the actual value if the same shall
have been procured otherwise than by purchase,
at the time and
place when and where purchased, or otherwise procured &c.,
shall be added all charges &c., sec. 5
The Act of Congress of July 14, 1832, preserved the same
distinction as in the act of 1823, in respect to goods imported
which had been purchased, and goods procured otherwise than by
purchase, sec. 15, secs. 7 and 8.
The 16th section of the act of 1842, like the 7th section of the
act of 1832, prescribed the rule for the appraisal of goods
imported which had been purchased in the foreign market, but
omitted any provision in respect to goods imported which had been
procured otherwise than by purchase, leaving this class
Page 62 U. S. 255
of importations to the rule as prescribed in the acts of 1823,
section 5, and 1832, section 15, which was not repealed, as no
provision in that act was inconsistent with this rule. The
repealing clause of that acts is as follows: "And that all
provisions of any former law inconsistent with this act shall be,
and the same are hereby, repealed." The regulations, therefore, of
the acts of 1823 and 1832, in respect to the time and place when
and where goods, procured otherwise than by purchase, were left
untouched by the 16th section of the act of 1842.
Then, as it regards the 17th section. That is general, and
applies to every class of importations -- goods purchased, or
procured otherwise than by purchase. It regulates the mode and
manner of the appraisement. The appraisers may call before them and
examine upon oath the owner, importer, consignee, or any other
person, touching any matter deemed material in ascertaining the
true market value or wholesale price of any merchandise imported;
may call for letters, accounts, or invoices, relating to the
valuation. It imposes a forfeiture of one hundred dollars for any
neglect or refusal to attend before the appraisers and give
evidence, makes false swearing before them perjury, and if the
person be the owner, importer, or consignee, forfeits also the
merchandise, requires that the evidence thus taken shall be filed
in the collector's office, for future use; provides for an appeal,
on the part of the owner, importer, or consignee, to merchant
appraisers, in case of dissatisfaction at the appraisal by the
permanent appraisers, makes the appraisal by the permanent or
merchant appraisers, as the case may be, final and conclusive, and
then closes with a proviso that in all cases where the actual value
thus appraised and ascertained shall exceed by ten percentum the
invoice value, then, in addition to the duty imposed by law, there
shall be levied and collected on the goods fifty percentum of the
duty upon the appraised value.
See also Act of Congress,
March 3, 1851
As we have said, this section applies to all classes of
importations, and regulates the mode and manner by which the
appraisals shall be conducted by the appraisers, giving to the
owner, importer &c., the right of reappraisal by merchant
appraisers,
Page 62 U. S. 256
in case of dissatisfaction. It embraces not only importations of
goods purchased, referred to in the 16th section of the act, but
importations procured otherwise than by purchase, as provided for
in the acts of 1823 and 1832; and while this act of 1842 remained
in full force, it subjected all importations to the penalty of
fifty percentum in case of undervaluation.
Then came the act of 30 July, 1846, the 8th section of which
changed this penalty or increased duty, in case of undervaluation,
to twenty percentum on the appraised value, as it respected goods
imported which had been purchased, leaving the regulations in
respect to goods imported by the manufacturers as they existed
under the former laws.
This act, like the act of 1842, repealed only such enactments of
former laws as were repugnant to its provisions, sec. 11. The 8th
section, not including the manufacturer, left the importation
subject to the 17th section of the act of 1842.
The Act of 3 March, 1857, obliterates this distinction between
goods purchased or procured otherwise than by purchase, and imposes
upon the latter the twenty percentum upon the appraised value, for
undervaluation, the same as in case of goods purchased. Sess.Laws
1857, p. 199, Lit. & Bro. ed.
It has been argued that, admitting the goods were properly
subject to the fifty percentum increased duty, under the 17th
section of the act of 1842, inasmuch as this was not imposed by the
collector, but the higher increased duty, under the 8th section of
the act of 1846, the court below erred in charging the shipments in
question with the former duty.
But the answer to this objection is that the law imposes the
increased duty in case of undervaluation, and not the collector. It
is true he is the agent of the government to collect it, as he is
in collection the ordinary rate of duties, but in no other sense or
character. The law declares, in the case contemplated by the act,
and which existed upon the proofs before the court, that, in
addition to the ordinary duty, there shall be levied and collected
&c., fifty percentum &c. No demand of the collector was
necessary to create the liability. That
Page 62 U. S. 257
arose, as matter of law, upon the facts disclosed in the record,
and it was the duty of the court to enforce it; and hence the
excess over this increased duty, arising under the 17th section,
constituted the just amount which the plaintiffs were entitled to
recover.
Judgment of the court below affirmed.
