Nichols v. Beard

• Decision Date: 31 January 1883
• Parties: NICHOLS v. BEARD, Collector.
• Court: U.S. District Court — District of Massachusetts

15 F. 435

NICHOLS v. BEARD, Collector.

United States Circuit Court, D. Massachusetts.

January 31, 1883

Samuel W. Creech, Jr., for plaintiff.

George P. Sanger, Dist. Atty., for defendant.

NELSON J.

This is an action against the collector of the port of Boston to recover back duties paid under protest. At the trial by the court without a jury the following facts were proved or admitted: The plaintiff, a merchant and resident of New York in February, 1880, imported into the port of Boston, from Liverpool, a quantity of ale and stout otherwise than in bottles, measuring 6,200 wine gallons of 231 cubic inches each, or 5,300 beer gallons of 282 cubic inches each. In the invoices and entry by the plaintiff the number of gallons was given in beer measure. The collector, taking the wine gallon as the standard of measure, assessed a duty of 20 cents a gallon on 6,200 gallons, and exacted the same from the plaintiff, who, claiming that the duty should have been assessed upon only 5,300 gallons, the number of gallons according to beer measure, protested against the payment of the duty upon the 900 gallons in excess of the number of beer gallons, and paid the duty thereon-- $180-- under protest. He seasonably applied to the secretary of the treasury, and in due time, after an adverse decision of the secretary upon his appeal, brought this action. The proceedings at the custom-house were in due form of law.

The only gallon of liquid measure authorized by the treasury department, and distributed to the custom-houses for use therein, is the wine gallon of 231 cubic inches, which was adopted as the standard of liquid measure by the department in 1832.

By a resolution of congress, approved June 14, 1836, providing for the distribution of weights and measures, the secretary of the treasury was directed 'to cause a complete set of all the weights and measures adopted as standards, and now either made, or in the progress of manufacture, for the use of the several custom-houses, and for other purposes, to be delivered to the governor of each state in the Union, or such person as he may appoint, for the use of the states respectively, to the end that a uniform standard of weights and measures may be established throughout the United States ' The only gallon of liquid measure distributed to the states by the secretary of the treasury under this resolution was the wine gallon.

The wine gallon of the treasury department has, for many years been the statute standard of liquid measure in most, if not in all, of the states. No other gallon than the wine gallon was ever used in the custom-house at Boston. In the New York custom-house, prior to 1871, the wine gallon was used in all cases, except that ale and beer were returned on the basis of the beer gallon. But in that year the attention of the secretary of the treasury having been called to the practice, he instructed the collector at New York, in a letter dated January 5, 1871, as follows:

'Your communication of the fourteenth instant has been received, inclosing a letter from the surveyor, stating that it is the practice at your port to return the measure of imported ale in beer gallons; and in reply you are informed that the department has this day decided, on the appeal of J. E. Richards & Sons, at Boston, that such practice is incorrect, and that all liquors subject to duty by the gallon should be returned on the basis of wine liquid

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