Davies v. Miller

• Decision Date: 01 April 1889
• Citation: 32 L.Ed. 932,9 S.Ct. 560,130 U.S. 284
• Parties: DAVIES et al. v. MILLER et al
• Court: U.S. Supreme Court

130 U.S. 284

9 S.Ct. 560

32 L.Ed. 932

DAVIES et al. v. MILLER et al.

April 1, 1889.

Edwin B. Smith and S. G. Clarke, for plaintiffs in error.

Sol. Gen. Jenks, for defendants in error.

GRAY, J.

This was an action against the executors of a late collector of the port of New York, to recover back duties exacted on goods imported by the plaintiffs in July, August, and September, 1873. At the trial the plaintiffs introduced evidence tending to show that the duties exacted and paid were excessive; that appeals to the secretary of the treasury were taken, and this action brought in due time; and that the protest as to each entry was filed after the collector's decision on the rate and amount of duties, but before the date of the final ascertainment and liquidation of the duties, as stamped upon the entry. The court directed a verdict for the defendants, on the ground that the protest was filed 'before the liquidation of the entry to which it referred, and not within ten days thereafter, as required by law.' The plaintiffs duly excepted to the ruling, and, after judgment for the defendants, sued out this writ of error.

The customs acts in force at the time of the importation of these goods contained the following provisions: The collector and the naval officer are required to make and to indorse upon the importer's entry a gross estimate of the amount of the duties on the merchandise to which the entry relates, and the merchandise cannot be lawfully landed until the amount of the estimated duties has been first paid, or secured to be paid, and a permit granted. Act March 2, 1799, c. 22, § 49, (1 St. 664;) Rev. St. § 2869. The merchandise must be appraised, or bonds given by the importer in double its estimated value, before it is delivered from the custody of the officers of the customs. If the collector deems any appraisement too low, he may order a new appraisement, and may cause the duties to be charged accordingly. If the importer is dissatisfied with the appraisement, the collector must order another appraisement by two appraisers of a specified class, and, if they disagree, decide between them, and the appraisement thus determined shall be final, and duties levied accordingly. Acts May 28, 1830, c. 147, §§ 2, 4, (4 St. 409, 410;) Aug. 30, 1842, c. 270, § 17, (5 St. 564;) March 3, 1851, c. 38, § 3, (9 St. 630;) Rev. St. §§ 2899, 2929, 2930. On the entry of any merchandise, the decision of the collector of customs at the port of importation and entry as to the rate and amount of duties to be paid on such merchandise shall be final and conclusive against all persons interested therein, unless the owner, importer, agent, or consignee of the merchandise 'shall, within ten days after the ascertainment and liquidation of the duties by the proper officers of the customs, as well in cases of merchandise entered in bond as for consumption, give notice in writing to the collector on each entry, if dissatisfied with his decision, setting forth thirty days after the date of such ascertainment of his objection thereto, and shall, within thrity days after the date of such ascertainment and liquidation, appeal thereform to the secretary of the treasury.' Act June 30, 1864, c. 171, § 14, (13 St. 214;) Rev. St. § 2931. The question is whether the period allowed for filing the protest or notice of dissatisfaction with the decision made by the collector at the time of the entry upon the rate and amount of duties extends from the time of that decision, or only from the date of the final ascertainment and liquidation of the duties as stamped upon the entry, until 10 days after that date; or, in other words, whether this period, which is admitted to expire 10 days after the ascertainment and liquidation of the duties as so stamped, begins at the date of the stamp, or at the earlier date of the collector's original decision upon the estimated rate and amount of duties. The determination of this question will be aided by a brief consideration of the history of the law before the passage of the act of 1864.

Under the earlier acts of congress, which contained no provision on this subject, an importer who had paid unauthorized duties, under protest, and in order to obtain possession of his goods, might recover them back from the collector in an action of assumpsit for money had and received. Elliott v. Swartwout, 10 Pet. 137.

The act of March 3, 1839, c. 82, § 2, requiring the collector to pay the money into the treasury, notwithstanding the protest of the importer, and giving the importer a right of appeal to the secretary of the treasury, was held by this court, at January term, 1845, to take away the importer's right to bring an action of assumpsit. 5 St. 348; Cary v. Curtis, 3 How. 236.

Then came the act of February 26, 1845, c. 22, providing that nothing in the act of 1839 should have that effect; 'nor shall any action be maintained against any collector, to recover the amount of duties so paid under protest, unless the said protest was made in writing, and signed by the claimant, at or before the payment of said duties, setting forth distinctly and specifically the grounds of objection to the payment thereof.' 5 St. 727. Under that act, Chief Justice TANEY, sitting in the circuit court, held that a protest might be made prospectively, so as to cover subsequent similar importations, because, said the chief justice: 'The protest is legally made when the duties are finally determined, and the amount assessed by the collector; and a protest before or at that time is sufficient notice, as it warns the collector, before he renders his account to the treasury department, that he will be held personally responsible if the portion disputed is not legally due; and that the claimant means to assert his rights in a court of justice.' Brune v. Marriott, Taney, 132, 144. And his decision was affirmed by the judgment of this court. Marriott v. Brune, 9 How. 619. That judgment, though criticised in Warren v. Peaslee, 2 Curt. 231, was generally regarded and acted on as laying down a general rule establishing the validity of prospective protests. Steegman v. Maxwell, 3 Blatchf. 365; Hutton v. Schell, 6 Blatchf. 48, 55, and Fowler v. Redfield, there cited; Wetter v. Schell, 11 Blatchf. 193, 196, and Chouteau v. Redfield, there cited. None of these cases were brought up to this court; and in some of them the rule was applied under the act of March 3, 1857, c. 98, § 5, which provided that on the entry of any merchandise the decision of the collector of customs at the port of importation as to its liability to duty or exemption therefrom should be final and conclusive against the owner, importer, consignee, or agent of such...