Davies v. Arthur

• Decision Date: 01 October 1877
• Parties: DAVIES v. ARTHUR
• Court: U.S. Supreme Court

96 U.S. 148

24 L.Ed. 758

DAVIES v. ARTHUR.

October Term, 1877

ERROR to the Circuit Court of the United States for the Southern District of New York.

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 per cent 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 sect. 22, act of March 2, 1861, and sect. 13, act of July 14, 1862, at thirty-five per cent 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 per cent 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 per cent ad valorem, and the amount claimed and exacted by the defendant on the same , at the rate of sixty per cent ad valorem.

There was a judgment for the defendant, whereupon the plaintiffs brought the case here.

Mr. Edward Hartley for the plaintiffs in error.

The Solicitor-General, contra.

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's 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 entered for consumption by the plaintiffs under the dutiable rate of sixty per cent ad valorem, other portions of the merchandise being placed in the entry respectively under the duti able rates of thirty, thirty-five, and fifty per cent 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 per cent 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.

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