The Act of Feb. 26, 1845, 5 Stat. 727, prescribing the time and
manner of making protest to a collector of customs in cases therein
mentioned, continued in force until the passage of the Act of June
30, 1864, 13 id.
Page 92 U. S. 450
MR. JUSTICE BRADLEY delivered the opinion of the Court.
This was a suit brought by the defendants in error against the
collector of customs at New York to recover certain duties alleged
to have been overcharged upon certain goods imported in December,
1863. The plaintiffs claimed that they were "flannels," dutiable at
only thirty-five percent ad valorem;
the collector held
them to belong to a particular class of goods which were subject to
an additional specific duty of eighteen cents per pound. As the
quantity of goods was seven thousand none hundred and eight-four
pounds, the difference was $1,437.12. For this amount, with
interest, the plaintiffs brought the suit.
The goods in question were part of a large invoice entered on
the 24th of December, 1863, on which day the sum of $8,840.93 was
paid on account. The entry was not liquidated until the early part
of March, 1864, when an additional sum of $1,182.71 was demanded.
To this the plaintiffs demurred, as it was based on the aforesaid
charge of eighteen cents per pound in addition to the ad
duty on the goods in question.
The questions arising at the trial as to the character and
dutiability of the goods referred to, and the evidence proper to
decide the same, are not of sufficient importance to demand special
consideration. The principal question below, and that which has
been most discussed in this Court is whether the plaintiffs gave
timely and sufficient notice of protest and dissatisfaction with
the decision of the collector.
No objection was made until the additional amount was demanded
in March, 1864. The import entry was endorsed with the following
memorandum: "Liquidated, and notified importer, March 11, 1864."
The additional duty was paid, and a formal protest in writing was
served by the plaintiffs on the 24th of March, 1864. In the
meantime, the importers had appealed to the Secretary of the
Treasury, and had obtained his decision, dated the 21st of March,
affirming that of the collector.
The defendant insisted that this protest was too late -- that it
should have been made within ten days for the entry of the
liquidation on the import entry -- but the court allowed
Page 92 U. S. 451
the plaintiffs to prove that the liquidation was really
completed before the 11th of March, and that within ten days after
its completion a written notice of dissatisfaction, different from
the formal protest, was given to the collector. To this the
defendant excepted. The jury rendered a verdict for $2,235.72,
being the whole amount demanded, with interest.
It is assumed in the argument, and seems to have been assumed at
the trial, that the case was governed by the Act of March 3, 1857,
11 Stat. 195, by the fifth section of which it was provided
"That on the entry of any goods, wares, and merchandise imported
on and after the first day of July aforesaid, the decision of the
collector of the customs at the port of importation and entry, as
to their liability to duty or exemption therefrom, shall be final
and conclusive against the owner, importer, consignee, or agent of
any such goods, wares, and merchandise unless the owner, importer,
consignee, or agent shall, within ten days after such entry, give
notice to the collector in writing of his dissatisfaction with such
decision, setting forth therein distinctly and specifically his
grounds of objection thereto and shall within thirty days after the
date of such decision appeal therefrom to the Secretary of the
Treasury, whose decision on such appeal shall be final and
conclusive, and the said goods, wares, and merchandise shall be
liable to duty or exempted therefrom accordingly, any act of
Congress to the contrary notwithstanding, unless suit shall be
brought within thirty days after such decision for any duties that
may have been paid or may thereafter be paid on said goods or
within thirty days after the duties shall have been paid in cases
where such goods shall be in bond."
On examination of the various acts of Congress relating to
claims for overcharge of duties on imported goods, we are satisfied
that the Act of 1857 above quoted had no application to this case,
but that the case was governed by an Act passed on the 26th of
February, 1845, 5 Stat. 727.
To make this more apparent, it will be necessary briefly to
advert to the history of the laws on this subject.
The case of Elliot v.
10 Pet. 137, decided in 1836, affirmed
the principle which had been established by previous authorities
that money paid to a collector for duties illegally demanded, if
paid under compulsion in order to get possession
Page 92 U. S. 452
of the party's goods or to prevent their being seized for the
duties, may be recovered against the officer in an action at common
law, provided the payment be made under protest and with full
notice of the intent to sue, so that the officer may protect
himself by retaining the money in his possession; but that a
payment voluntarily made without such protest cannot be recovered
back. The embarrassments which ensued in consequence of the large
amount of duties withheld from the public treasury by Mr.
Swartwout, the defendant in that case, induced the passage of an
Act in 1839, 5 Stat. 348, sec. 2, which required all duties
collected to be paid into the treasury without regard to claims for
overcharge, and deprived the party of an action at law by giving
him the specific remedy of an appeal to the Secretary of the
Treasury. This was held to be the effect of the act, although not
its express terms, as may be seen by a reference to the case of
reported in 3 How. 236. In 1845, the right
of action was restored by an act passed to explain the Act of 1839.
It declared that nothing contained in this act should be construed
to take away the right of any person who should pay money for
duties under protest in order to obtain goods imported by him,
which duties were not authorized or payable, in part or in whole,
by law, to maintain an action at law to ascertain any try the
validity of such demand and payment and to have a right to a trial
by jury according to the due course of law; but it required the
protest to be made in writing and signed by the claimant at or
before the payment of the duties, setting forth distinctly and
specifically the grounds of objection to the payment thereof. Act
of Feb. 26, 1845, 5 Stat. 727. This act was never repealed until
the passage of the act to increase duties on imports, approved June
30, 1864, by the fourteenth section of which. 13 Stat. 214, it was
enacted that on the entry of any vessel or of any goods, the
decision of the collector as to the rate and amount of the duties,
both on the tonnage of the vessel and on the goods, should be final
and conclusive unless the owner or consignee should, within ten
days after the ascertainment and liquidation of the duties, give
notice in writing to the collector on each entry if dissatisfied
with his decision, setting forth distinctly and specifically the
grounds of objection
Page 92 U. S. 453
and should appeal to the Secretary of the Treasury within thirty
days after such ascertainment and liquidation and unless suit
should be brought within ninety days after the Secretary's
decision. This act supplied the Act of 1845, and repealed it by
implication. But it was not in force when the goods in question in
this case were imported; therefore the proceedings in this case
were subject to the regulations of the Act of 1845, which required
the protest to be made at or before the payment of the duties
alleged to be illegal.
The act of 1857, which was erroneously supposed to govern the
case, did not relate to a decision upon the rate and amount of the
duties to be charged, but to the decision of the collector whether
the goods were on the free list or not. This act was passed for the
purpose of reducing duties on imports still lower than the rates
imposed by the tariff act of 1846, and it made a large addition to
the list of articles entirely exempt from duty. The list of
additional articles exempted is extended at large in the act, and
occupies the greater part of it. The last section then enacts that
on the entry of any goods imported after the first of July then
next, the decision of the collector as to their liability to
duty or exemption therefrom
shall be final and conclusive
&c., unless the importer or consignee &c., shall, within
ten days after such entry, give notice to the collector in writing
of his dissatisfaction &c. Now the question whether goods
imported were or were not on the free list and exempt from any duty
at all could and necessarily would be decided on their entry, and
need not await any ascertainment or liquidation of the amount.
Hence it was required that the notice of dissatisfaction should be
made within ten days after such entry, and the requirement, on this
view of the act, was a reasonable one. The act does not in terms
nor by implication repeal the Act of 1845. That act still furnished
the rule to be observed, if the importer, admitting that the goods
were dutiable, questioned the rate and amount of duties to be paid.
In most cases, the amount, and in many cases the rate, could not be
ascertained until after examination and appraisement, and hence a
limitation to ten days from the time of entry would often, perhaps
generally, deprive the party of any remedy at all.
Page 92 U. S. 454
The question in the case therefore really was whether the
importers made their protest in accordance with the Act of 1845 --
namely at or before paying the duties complained of. It is not
denied that they did this so far as relates to the additional
charge of $1,182.72, but they claim a return of more than this, and
under the charge of the court, they obtained a verdict for nearly
double this amount, which would include some portion of the money
paid by them without protest when the goods were first entered.
This was erroneous.
Judgment reversed, and cause remanded with directions to
award a venire de novo.