Edwin Bartlett, Plaintiff In Error v. George Kane

• Decision Date: 01 December 1853
• Citation: 14 L.Ed. 931,57 U.S. 263,16 How. 263
• Parties: EDWIN BARTLETT, PLAINTIFF IN ERROR, v. GEORGE P. KANE
• Court: U.S. Supreme Court

57 U.S. 263

16 How. 263

14 L.Ed. 931

EDWIN BARTLETT, PLAINTIFF IN ERROR, v. GEORGE P. KANE.

December Term, 1853

THIS case came up by writ of error, from the Circuit Court of the United States for the District of Maryland.

It was an action brought by Bartlett against Kane, who was the collector of the port of Baltimore, for the refunding of certain duties alleged to be illegally exacted upon the importation of Peruvian bark.

The circumstances of the case are fully stated in the opinion of the court.

It was argued by Mr. Brune and Mr. Brown, for the plaintiff in error, and by Mr. Cushing, (Attorney-General,) for the defendant.

The points and authorities relied upon by the counsel for the plaintiff in error, were the following:

1st. That the true dutiable value of the goods imported by the plaintiff in error, which were the production of Bolivia, and exported from that country by Messrs. Pinto & Co., to whom they belonged, was their market value in Bolivia, at the time of their procurement by Messrs. Pinto & Co.

2d. That if said goods are to be considered as exported from Peru, their true dutiable value was their market value in Bolivia at the date of their exportation from Peru; and the court below, which seems to consider them as exported from Peru, then erred in declaring that the law in such case fixes the duties upon the market value at the place of exportation.

3d. That as Bolivia was not an open market in which bark could be purchased during the continuance of the contracts between Pinto & Co. and the Bolivian government, the cost

price to Messrs. Pinto & Co. of the said goods, under their contracts of monopoly with the Bolivian government, must be esteemed the market value of said goods in Bolivia, for the purpose of fixing the dutiable value of said goods, whether considered as exports from Bolivia or Peru.

4th. That the invoice value of said goods which was declared on the entry, and upon which duty was then paid by the agents of the plaintiff in error, is clearly shown, by the evidence, not only to have been greater than the cost price to Messrs. Pinto & Co. under their said contracts, but was also fully equal to the value of such goods in the markets of Peru up to the period of their shipment from that country.

5th. That whatever may be the rule of law establishing the true dutiable value of said goods, their dutiable value as mentioned in the invoice, duly verified and declared on the entry, must be deemed their true dutiable value until superseded by a valid appraisement, fixing a different value.

6th. That the appraisement by which the dutiable value of the said goods was raised, and the importer was subjected to the additional duty prescribed by the eighth section of the act of 1846, was illegal and void, and the duties thus claimed and paid under said appraisement, were illegally exacted.

7th. That the court below erred in refusing the plaintiff's second prayer, and in the opinion which was given to the jury, by which it decided as a matter of law, and without submitting any facts to be found by the jury that said appraisement was valid.

8th. That the non-compliance of the plaintiff in error with the requirements of the appraisers, contained in their letter of the 6th of October, 1849, did not make valid the illegal appraisement of his goods, previously made, and then still appealed from.

9th. That the court below erred in refusing to grant the plaintiff's third and fourth prayers; and also in the opinion which it gave, by which it instructed the jury absolutely, and without submitting any facts to be found by them, that the plaintiff, by his conduct, had fixed the correctness of the said appraisement.

10th. That the court erred in rejecting the plaintiff's fifth prayer, and in instructing the jury that the plaintiff was not entitled to recover any part of the sum exacted by the defendant in error, as additional duty under the eighth section of the act of 1846, upon the goods entered by the plaintiff for warehouseing and subsequently exported.

To maintain the first seven points, having reference to the true dutiable value of the goods, and the invalidity of the appraisement

by which this value was raised, the plaintiff in error relies on the following acts of Congress: 1818, c. 79, 3 Stat. at Large, 433, and particularly to §§ 3, 4, 5, 9, 11, 12, 15, 16 and 17; 1823, c. 21, 3 Stat. at Large, 729, §§ 4, 5, 7, 8, 13, 14, 15, 16, 18, 19, 21; 1828, c. 55, 4 Stat. at Large, 270, §§ 8, 9; 1830, c. 147, 4 Stat. at Large, 409, §§ 1, 2, 3, 4; 1832, c. 227, 4 Stat. at Large, 583, §§ 7, 8, 15; 1833, c. 55, 4 Stat. at Large, 629, § 3; 1842, c. 270, 5 Stat. at Large, 548, §§ 16, 17, 21, 22, 23, 24; 1846, c. 74, 9 Stat. at Large, 42, §§ 1, 8, 11, schedule F.

And, by way of illustration, to the act of 1851, c. 38, 9 Stat. at Large, 629. And the Treasury Circular of the 27th of March, 1851, construing the same.

And the following authorities: Tappan v. The United States, 2 Mason, 396; Tappan v. The United States, 11 Wheat. 420 to 427; Tracy v. Swartwout, 10 Peters, 94, 95; Elliot v. Swartwout, Ib. 153-157; Marriott v. Brune, 9 Howard, 634, 635; Greely v. Thompson, 10 Howard, 225-241; Maxwell v. Griswold, Ib. 247 to 254; Reggio v. Greely, Mss. Mass. Circuit, June, 1851; Grinnell v. Lawrence, 1 Blatchford, 348-350.

To maintain his 8th and 9th points, the plaintiff in error refers to 1823, c. 21, 3 Stat. at Large, 729, §§ 16, 17; 1830, c. 147, 4 Stat. at Large, 409, § 3; 1832, c. 227, 4 Stat. at Large, 583, §§ 7, 8; 1842, c. 270, 5 Stat. at Large, 548, §§ 16, 17; 1848, c. 70, 9 Stat. at Large, 237.

And to Tappan v. The United States, 2 Mason, 403; Grinnell v. Lawrence, 1 Blatchford, 350; Tucker v. Kane, Mss. Md. Circuit; Reggio v. Greely, Mss. Mass. Circuit, June, 1851; Watson on Arbitrations, 59 Law Library, 36; Russell on Arbitrations, 63 Ib. 151; Tracy v. Swartwout, 10 Peters 95-96; Marriott v. Brune, 9 Howard, 634; Greely v. Thompson, 10 Howard, 229-238.

To maintain his 10th point he refers to the acts of 1799, c. 22, 1 Stat. at Large, 627, particularly §§ 56, 75, 76, 77, 78, 80, 81, 84; 1816, c. 107, 3 Stat. at Large, 310, § 4; 1818, c. 129, 3 Stat. at Large, 467; 1823, c. 21, 3 Stat. at Large, 729, §§ 28-37; 1830, c. 147, 4 Stat. at Large, 409, § 5; 1842, c. 270, 5 Stat. at Large, 548, §§ 12, 13, 15; 1846, c. 7, 9 Stat. at Large, 3, § 3; 1846, c. 84, 9 Stat. at Large, 53, §§ 1, 2; Treasury Circular of 12th June, 1847; Tremlett v. Adams, 13 Howard, 303.

The Attorney-General contended:

The said appraisement was final and conclusive upon the withdrawal of the appeal.

After enumerating the statutory provisions upon the subject, he said,

From the enactments of the statute, it is clear that the appraisement

by the custom-house appraisers becomes final and conclusive upon either of these events; by the failure of the owner, importer, or consignee, to ask an appeal to merchant appraisers, or by withdrawing that appeal after taken, or by refusing to produce the letters or accounts relating to the goods imported.

The statute cannot be evaded by taking an appeal and then withdrawing it, with notice of an intent to bring the question of the true market value before the judicial tribunals; nor by taking an appeal, refusing to produce the letters and accounts required, and withdrawing the appeal under protest against the appraisement appealed from, with notice that the appellant means to contest the appraisement and present his documents, called for by the appraisers, before a tribunal other than the merchant appraisers.

The statute has provided the appellate tribunal to settle finally the question of the true market value of the goods when the importer, owner, or consignee is dissatisfied with the appraisement, by the custom-house appraisers. That final appellate tribunal is to consist of merchants, 'two discreet and experienced merchants, citizens of the United States, familiar with the character and value of the goods in question.' The ingenuity of the plaintiff cannot draw this question ad aliud examen.

The plaintiff says, 'In looking more carefully to the requisition of your appraisers of bark per St. Joseph, I find that I shall have to have copied and translated a mass of correspondence from January last, when it was shipped, to August, (for reference to it is made in all my letters from Pinto & Co., and Alsop & Co.); and in order the more fully to explain Pinto & Co.'s mode of invoicing their bark, I shall have to present a series of documents, commencing in 1847, with their contract with the Bolivian government, proving its actual cost to be about $60 per quintal: all these are necessary to make out my own case, and I am unwilling to...