1. In 1873, certain gloves, commercially known as "silk plaited
gloves" or "patent gloves," made on frames and manufactured in part
of silk and in part of cotton, cotton being the component part of
chief value, were imported at New York, upon which the collector
imposed a duty of sixty percent
ad valorem under the
eighth section of the Act of June 30, 1864, 13 Stat. 210.
Held that the articles did not come within the general
terms of that section because, 1st, they were not, by reason of
their component materials, silk gloves; 2d, they were commercially
known only as "plaited gigues," or "patent gloves;" and 3d, they
did not fall within the concluding clause, silk not being the
component part of chief value.
2. Not being included in the Act of 1864, the articles were
dutiable under the twenty-second section of the Act of March 2,
1861, 12 Stat. 191, and the thirteenth section of the Act of July
14, 1862,
id. 556, where they are enumerated as gloves
made on frames.
3. In an action against a collector of customs to recover the
amount of duties on imports alleged to have been exacted in
violation of law, the burden of proof is upon the plaintiff.
Page 96 U. S. 119
In May, 1873, Unkart & Co. imported into New York certain
merchandise, upon which the plaintiff in error, the collector of
the port, assessed and collected a duty of sixty percent under the
eighth section of the Act of June 30, 1864, 13 Stat. 210, which
imposed a duty of sixty percent on various articles of clothing
made of silk, naming hats, gloves, &c. The concluding clause of
the section is as follows: "On all manufactures of silk, or of
which silk is the component of chief value, not otherwise provided
for, fifty percent
ad valorem."
Against the imposition of that rate of duty the importers
protested in due form upon the ground that such merchandise, being
gloves and similar articles made on frames, not otherwise provided
for, is only liable to duty under the twenty-second section of the
Act of March 2, 1861, and the thirteenth section of the Act of July
14, 1862, at the rate of thirty-five percent
ad valorem,
less ten percent; under the second section of the Act of June 6,
1872, as a manufacture of cotton, or of which cotton is the
component part of chief value.
Upon the trial of this action, which was to recover the excess
so paid, it was conceded that the articles in question were gloves;
that they were commercially known as "silk-plaited gloves," or
"patent gloves;" that they were manufactured in part of silk and in
part of cotton, and were made on frames.
The court charged the jury that while the burden of proof was
upon the plaintiffs to show that they had fulfilled all the formal,
ordinary prerequisites to bringing their action, it was upon the
defendant to justify his exaction of the duty imposed, so that it
was for them to be satisfied that the evidence fairly preponderated
in favor of the defendant, that the materials which were the
component of chief value in the gloves in question were silk;
otherwise, the plaintiffs were entitled to a verdict, there being
no question on the evidence but that the prerequisites in regard to
which the burden rested upon the plaintiffs had been complied with.
The jury found that cotton was the chief component of value in the
gloves and that the value of the silk therein was less than that of
the cotton, and gave their verdict for the plaintiffs.
Page 96 U. S. 120
MR. JUSTICE HUNT delivered the opinion of the Court.
The twenty-second section of the Act of March 2, 1861, 12 Stat.
191, provided a duty of thirty percent on many articles, and among
them
"caps, gloves, leggins, mits, 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."
The thirteenth section of the Act of July 14, 1862,
id., 556, increases this duty by the same descriptive
terms, five percent
ad valorem.
By the Act of June 6, 1872, 17
id. 230, the duties upon
manufactures of cotton, having cotton as the component of chief
value, were reduced ten percent.
The articles in question did not come within the general terms
of the eighth section of the Act of 1864 for these reasons: 1st,
they were not silk gloves, by reason of their component materials
being composed of silk and cotton, the latter material
preponderating; 2d, they were commercially known as "plaited
gloves," or "patent gloves," and not as silk gloves.
They did not fall within the concluding clause, because silk was
not the component of chief value. The facts here stated are founded
upon the concessions of the parties at the trial and upon the
verdict of the jury.
Not being included in the Act of 1864, the articles are dutiable
under the acts of 1861 and 1862, where they are enumerated as
gloves made on frames, and by the Act of 1862, which adds five
percent to the duty of 1861.
The suggestion is made that the articles may be taxed under the
similitude clause of the Act of Aug. 30, 1842. 5 Stat. 565;
Rev.Stat., sec. 2499. This provision by its terms applies to
nonenumerated articles only,
Stuart v.
Maxwell, 16 How. 150, and no such claim was made on
the trial that it applied to this case. Among the ten carefully
prepared points presenting the views of the government, there is no
reference made to the similitude Act of 1842. Neither the collector
in imposing the tax nor the counsel at the trial professed to act
under or
Page 96 U. S. 121
to demand any advantage from the Act of 1842. The right of the
government was placed exclusively upon the Act of 1864. Upon the
point of the rate of duties to which the goods were liable, we are
of the opinion that the importers were right, and were entitled to
a return of the excess paid by them.
There is, however, a further question in the case. The counsel
for the defendant requested the court to charge that in this action
to recover for an alleged illegal exaction of duties, it devolved
upon the plaintiff to make out his case by showing the illegality
complained of; that the burden of proof was on the plaintiff to
satisfy the jury by a fair preponderance of evidence as to the
character of the materials of the gloves. The court refused this
request, but charged the jury
"That the burden of proof is upon the defendant to justify his
exaction of the duty imposed, so that it is for you to be satisfied
that the evidence fairly preponderates in favor of the defendant,
that the materials which are the component of chief value are silk,
otherwise the plaintiffs are entitled to a verdict."
It is not doubted that it was the duty of the collector in the
first instance to decide whether the articles imported were
dutiable, and at what rate. The statute makes it his duty. Neither
can it be doubted that unless protest is made within ten days and
unless an appeal is taken to the Secretary of the Treasury within
thirty days after such decision, the decision of the collector on
these points is final and conclusive. The statute expressly
declares that it shall be so. The decision of the Secretary upon
such appeal is also declared by the statute to be final and
conclusive unless a suit be brought to recover any alleged excess
of duties within ninety days after such decision or within ninety
days after the payment of duties, if payment be made after such
decision. No suit can be maintained until the decision of the
Secretary has been had as to any transaction at a point east of the
Rocky Mountains, unless his decision has been delayed for more than
ninety days. 13 Stat. 214, sec. 14; Rev.Stat., sec. 2931. Express
authority to maintain the action is given by the statute of 1845
and the Revised Statutes. 5 Stat. 727; Rev.Stat., sec. 3011.
When an appeal is taken from his decision, the decision of the
collector ceases to be conclusive, and the same is true of the
Page 96 U. S. 122
decision of the Secretary of the Treasury. These officers are,
however, selected by law for the express purpose of deciding these
questions; they are appointed and required to pronounce a judgment
in each case, and the conduct, management, and operation of the
revenue system seem to require that their decisions should carry
with them the presumption of correctness. This rule is not only
wise and prudent, but is in accordance with the general principle
of law that an officer acting in the discharge of his duty upon the
subject over which jurisdiction is given to him is presumed to have
acted rightly.
The case may be likened to that of a sheriff who levies upon the
property of a debtor who claims that a portion of it is exempt from
seizure upon execution. It is not sufficient that the debtor shall
claim the exemption, but he must, by proof of registry when
necessary, or that the articles seized are those named in the
statute, or are required to make up the amount of the exemption, or
in some other mode, prove that articles were exempt and that thus
the seizure was illegal. Both the sheriff and collector have power
to act in the first instance upon the question in dispute, and he
who insists that such action is in violation of law must make the
proof to show it.
Griffin v. Lathulu, 14 Barb. (N.Y.) 456;
Tuttle v. Buch, 41
id. 417;
Van Sickler v.
Jacobs, 14 Johns. (N.Y.) 434.
The importers here bring their suit, alleging in their complaint
not merely that there was an exaction of duties, but that such
exaction was excessive and illegal. The burden of proof is upon the
party holding the affirmative of the issue.
Johns v.
Plowman, 49 Barb. 472. Mr. Roscoe says:
"When the issue involves the charge of culpable omission, it is
incumbent on the party making the charge to prove it, although he
must prove a negative, for the other party shall be presumed to be
innocent until proved to be guilty."
Roscoe, Evid. 52, cited 15 Pick. 317, where the issue was upon
the materiality of a fact not communicated to the underwriter.
In
Bank of United States v. Davis, 2 Hill (N.Y.) 451,
where the question was whether a discount had been made in bills
procured from the old Bank of the United States, the court said
that the party alleging the illegality of a contract has the burden
of proof, there being nothing illegal upon its face.
Page 96 U. S. 123
To the same purport,
see Cuyler v. Sanford, 8 Barb.
(N.Y.) 225.
So, on an application to vacate an assessment for a local
improvement on the ground of fraud, the burden of proof is on the
applicant.
Matter of Petition of Sarah Bassford, 50 N.Y.
509.
In an action against public officers for a nonfeasance, the
burden of proof is on the plaintiff.
Mintlan v.
Rochfeller, 6 Conn. 276.
Mr. Greenleaf, Greenl.Evid., sec. 80, thus lays down the
rule:
"So where the negative allegation involves a criminal neglect of
duty, official or otherwise, or fraud, or the wrongful violation of
actual lawful possession of property, the party making the
allegation must prove it, for in these cases, the presumption of
law, which is always in favor of innocence and quiet possession, is
in favor of the party charged,"
and many instances are cited.
Again, it is to be observed that in the case of the articles in
question, as with most other importations, they were admitted to be
liable to some duty. Simply holding the goods for duty was not,
therefore, of itself an illegality. It was only when they were held
for more duty than the law justified that it became duress and
illegal, and to entitle himself to recover for the illegality, the
plaintiff must show such excessive charge. If the collector had no
authority in the premises, and could hold the goods for no amount
whatever, a different question would arise. But here, the very
issue was as to amount, and the proof, therefore, of illegal amount
rested upon the plaintiff.
The case of
Wilkinson v. Greeley, 1 Curt. 63, is cited
to sustain the ruling we are considering. It is true that the
circuit judge, on the trial of that case, charged that the burden
of proof was on the collector to show that the articles were not
truly described in the invoice, and were therefore subject to the
higher duty, and that, on the motion for a rehearing before Mr.
Justice Curtis, he assumed that to be the law. It does not,
however, appear that the point was made and argued by counsel or
that it received from the learned judge that consideration which
would entitle it to be held as an authority. The ruling has never
been followed in the circuit where made, so far as
Page 96 U. S. 124
we can learn, and during the last fifteen years, we have the
authority of MR. JUSTICE CLIFFORD for saying that the law has
always been held in that circuit to be otherwise.
For this error the judgment must be reversed and a
venire de
novo awarded, and it is
So ordered.
