An importer, having set forth in his written protest the ground
of his objection to the payment of customs duties exacted by the
collector, cannot, in his suit against the latter, recover them
upon any ground other than that so set forth.
This is an action by John M. Davies & Co. to recover certain
duties claimed by them to have been illegally exacted by Arthur,
the defendant, as collector of the port of New York.
In April, 1872, they imported from Liverpool certain
merchandise, a portion of which is described on the invoice as
"Ducape Eglington ties," which are manufactured of silk, and used
and known as neckties. Another portion of the merchandise is
described as "twill silk cut up." The appraiser, in his report to
the collector, returned the ties as silk scarfs, and the twill silk
as silk in pieces; whereupon the collector imposed a duty of sixty
percent
ad valorem upon each.
The importers thereupon protested in writing against the
assessment, upon the ground that the merchandise "should only pay
duty, being articles worn by
men, women, or children,'"
&c., and "wearing apparel," under sec. 22, Act of March 2,
1861, and sec. 13, Act of July 14, 1862, at thirty-five percent
ad valorem. "They are neither `scarfs' nor ready-made
clothing in fact, nor as known in trade and commerce."
On the same day, they appealed to the Secretary of the Treasury,
who affirmed the action of the collector, and they thereupon
brought this suit.
It having been admitted by both parties at the trial that the
goods were, under the concluding clause of the eighth section of
the Act of June 30, 1864, 13 Stat. 210, subject to a duty of fifty
percent
ad valorem, as manufactures of silk not otherwise
provided for, the question submitted to the court, which tried the
case without a jury, was whether, under their protest, the
plaintiffs could recover the difference between the amount of
duties payable on said "Ducape Eglington ties," at the rate of
fifty percent
Page 96 U. S. 149
ad valorem, and the amount claimed and exacted by the
defendant on the same, at the rate of sixty percent
ad
valorem.
There was a judgment for the defendant, whereupon the plaintiffs
brought the case here.
MR. JUSTICE CLIFFORD delivered the opinion of the Court.
Importers who have paid duties under protest in writing may, if
the duties were illegally exacted and the protest sets forth
distinctly and specifically the grounds of the objection to the
payment, maintain an action of assumpsit against the collector to
recover back the amount so paid. 5 Stat. 727.
Persons importing merchandise are required to make their
protests distinct and specific, in order to apprise the collector
of the nature of the objection, before it is too late to remove it,
or to modify the exaction, and that the proper officers of the
treasury may know what they have to meet, in case they decide to
exact the duties as estimated, notwithstanding the objection, and
to expose the United States to the risk of litigation.
Curtis' Administratrix v.
Fiedler, 2 Black 461.
Payment of the duties having been made under protest in writing,
the importers brought assumpsit against the collector to recover
back the amount which they allege was illegally exacted. Service
was made, and both parties appeared and, having waived a trial by
jury, submitted the case to the court upon an agreed statement of
facts. Hearing was had, and the court rendered judgment in favor of
the defendant, and the plaintiffs sued out the present writ of
error.
Goods were imported by the plaintiffs from Liverpool into the
port of New York, a portion of which were described in the invoice
as Ducape Eglington ties, which are manufactures of silk, and are
used and known as neckties, and were valued in the invoice at a net
valuation equivalent to $696 in gold coin. Another portion of the
merchandise is described in the invoice as twill silk cut up, and
is valued in the invoice at a net valuation equivalent to $234,13
gold. Both parcels were part of the merchandise described in the
invoice as the contents of a case marked and numbered; and the
statement is, that they were
Page 96 U. S. 150
entered for consumption by the plaintiffs under the dutiable
rate of sixty percent
ad valorem, other portions of the
merchandise being placed in the entry respectively under the
dutiable rates of thirty, thirty-five, and fifty percent
ad
valorem.
Sufficient appears to indicate that the goods were appraised as
the agreed statement shows, that the local appraiser reported the
neckties to the collector as silk scarfs, and the twill silk cut up
as silk in pieces, and that both were subject to duty at the rate
of sixty percent
ad valorem. Pursuant to that report, the
collector liquidated the duties at that rate, and the plaintiffs
paid that rate of duty on the neckties and the silk cut up, on the
entered valuation of the same, as before explained. Custom duties
are payable in gold, and the plaintiffs paid the amounts in that
medium, and under protest in writing.
Subsequent to the passage of the Act of the 3d of March, 1839,
and before the passage of the Act of the 26th of February, 1845,
such a suit against a collector to recover back duties as having
been illegally exacted could not be maintained unless it was
brought before the collector placed the money to the credit of the
Treasurer of the United States. 4 Stat. 348;
Cary v.
Curtis, 3 How. 236.
Hardship and injustice resulted from that rule of decision, and
the Congress, by the latter act, established a different rule and
provided to the effect that the importer may in such a case have
such a remedy against the collector to recover back such duties, if
he protested in writing at or before the payment of the duties, and
set forth distinctly and specifically the grounds of his objections
to the payment of the same. 5 Stat. 727.
Different forms of expression are employed in later enactments,
but all which are applicable to the case before the court are,
except as to time, substantially to the same effect. 13
id. 214, sec. 14.
What is required by that act in respect to the matter in
question is that the importer, if dissatisfied with the decision of
the collector, shall give notice in writing to him on each entry,
setting forth therein, distinctly and specifically, the grounds of
his objection thereto, which certainly is not different from what
is required by the antecedent act. Nor is there any substantial
difference in the construction given by
Page 96 U. S. 151
the courts to the provision which contains that requirement.
Instead of that, both acts referred to make it necessary that the
protest shall be in writing, and the requirement is that the
importer shall set forth, distinctly and specifically, the grounds
of his objections to the payment of the liquidated duty.
Unless the protest is made in writing, and is signed by the
claimant within ten days after the ascertainment and liquidation of
the duties, setting forth distinctly and specifically the grounds
of objection to the payment, no action of the kind against the
collector can be maintained to recover back the duties as having
been illegally exacted. Nor is it sufficient to object to the
payment of any particular duty or amount of duty, and to protest in
writing against it; but the claimant must do more, as is evident
from the words of the Act of Congress. He must set forth in his
protest the grounds upon which he objects, distinctly and
specifically, the reason being, as ruled by Chief Justice Taney,
that the words of the act requiring the protest are too emphatic to
be overlooked in the construction of the provision.
Mason v.
Kane, Taney's Dec. 177.
Mistakes and oversights will sometimes lead to irregular
assessment, and the object of the requirement is to prevent a
party, if he suffers the mistake or oversight to pass without
notice, from taking advantage of it when it is too late to make the
correction, and to compel him to disclose the grounds of his
objection at the time when he makes his protest.
Protests of the kind must contain a distinct and clear
specification of each substantive ground of objection to the
payment of the duties. Technical precision is not required, but the
objections must be 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 that it 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.
Burgess v. Converse, 2 Curt. 223.
Two objects, says Judge Curtis, were intended to be accomplished
by the provision in the Act of Congress requiring such a
protest:
1. To apprise the collector of the objections entertained by the
importer, before it should be too late to remove
Page 96 U. S. 152
them, if capable of being removed.
2. To hold the importer to the objections which, he then
contemplated, and on which he really acted, and prevent him, or
others in his behalf, from seeking out defects in the proceedings,
after the business should be closed, by the payment of the money
into the treasury.
Warren v. Peaselee, 2 Curt. 235;
Thomson v. Maxwell, 2 Blatchf. 392.
Merchandise entered as silk ties was imported by the plaintiffs
into the port of New York, on which the defendant exacted an ad
valorem duty of sixty percent, upon the assumption that the
articles were properly classified as silk scarfs. 13 Stat. 210.
Prompt objection to that classification was made by the
plaintiffs, and they protested against the payment of the
liquidated duty, on the ground that the goods imported and entered
should be classified as "articles of wearing apparel worn by men,
women, and children," and that they were subject only to a duty of
thirty-five percent ad valorem, as prescribed by two prior tariff
acts. 12
id. 186, 556.
Properly construed, their protest is that the articles should
only pay duty at thirty-five percent
ad valorem, because
the articles imported were wearing apparel worn by men, women, and
children, and were not scarfs, nor ready-made clothing in fact, nor
as known in trade or commerce.
Litigation ensued in consequence of that difference of opinion
between the importers and the officers of the government; but when
the case came to trial, both parties agreed that the merchandise
imported should have been classified as a manufacture of silk not
otherwise provided for, under the concluding clause of sec. 8 in
the Act of the 30th of June, 1864, and that it was dutiable at
fifty percent
ad valorem, differing from the theory of
each party as assumed at the time of the appraisement and
liquidation of the duties. 13
id. 210. Still, the
plaintiffs claimed to recover the difference of ten percent between
the proper duty and the duty exacted by the defendant as collector;
and the court below held that they could not do so under their
protest, as they could only be heard to allege the objections
distinctly and specifically stated in their protest, pursuant to
the requirement contained in the Act of Congress. Judgment was
given for the defendant; and the plaintiffs sued out the present
writ of error, to correct the ruling of the circuit court.
Page 96 U. S. 153
Three points were ruled by the circuit court:
1. That, unless the protest set forth distinctly and
specifically the ground of the objection to the amount claimed, it
fails to meet the requirement of the Act of Congress.
2. That the office of the protest is to point out to the
officers of the customs the precise errors of fact or of law which
render the exaction of the duty unauthorized.
3. That the plaintiffs are precluded from insisting that their
importation was a manufacture of silk not otherwise provided for,
and subject to a duty of fifty percent instead of sixty, when, by
their protest, they allege it to be wearing apparel, &c.,
subject to a duty of thirty-five percent.
Satisfactory reasons in support of these conclusions are given
by the circuit judge, to which it will be sufficient to refer,
without repetition.
Davies v. Arthur, 13 Blatchf. 34;
Norcross v. Greeley, 1 Curt. 120.
Apply these principles to the case before the court, and it is
clear that there is no error in the record.
Judgment affirmed.