Bidwell v. Levi, Blumenstiel & Co.

• Decision Date: 28 May 1906
• Docket Number: 209.
• Citation: 147 F. 225
• Parties: BIDWELL v. LEVI, BLUMENSTIEL & CO.
• Court: U.S. Court of Appeals — Second Circuit

147 F. 225

BIDWELL v. LEVI, BLUMENSTIEL & CO.

No. 209.

United States Court of Appeals, Second Circuit.

May 28, 1906

The Circuit Court directed a verdict in favor of the defendants in error, against George R. Bidwell, collector of customs at the port of New York. The controversy related to merchandise from Porto Rico, which was imported and entered for warehouse after that island had become a part of the United States but before the passage of the so-called Foraker Act of April 12 1900, c. 191, 31 Stat. 77, imposing a duty on merchandise imported from Porto Rico. Under the decision of the Supreme Court in De Lima v. Bidwell, 182 U.S. 1, 21 Sup.Ct 743, 45 L.Ed. 1041, the merchandise was not subject to the provisions of the tariff act of July 24, 1897, c. 11, 30 Stat. 151 (U.S. Comp. St. 1901, p. 1626), because not imported from a 'foreign' country within the meaning of the enacting clause of that act, and if it had been entered for consumption no duties could have been collected. But on its withdrawal from warehouse the collector enforced the payment of duty on the authority of section 5 of said Foraker Act, 31 Stat. 78, the pertinent part of which read as follows: 'Sec. 5. That on and after the day when this act shall go into effect all goods, wares, and merchandise previously imported from Porto Rico, for which no entry has been made, and all goods, wares, and merchandise previously entered without payment of duty and under bond for warehousing, transportation, or any other purpose, for which no permit of delivery to the importer or his agent has been issued, shall be subjected to the duties imposed by this act and to no other duty, upon the entry or the withdrawal thereof.'

The importers paid the duties under protest and brought an action against the collector for their recovery. In directing a verdict for them the court used the following language:

J. O Nichols, Asst. U.S. Atty., for collector.

Coudert Brothers (Frederic R. Coudert, of counsel), for importers.

PLATT, District Judge.

The merchandise in question reached the port of New York from Porto Rico during the month of September, 1899. It is clear from the decisions that, if the importer had protested against the payment of duties and had then taken the merchandise, and entered it for consumption, he would have been entitled to recover them. I cannot see that the mere fact that the collector undertook to put into force the customs...