Ex parte Fassett

• Decision Date: 11 January 1892
• Citation: 12 S.Ct. 295,142 U.S. 479,35 L.Ed. 1087
• Parties: Ex parte FASSETT
• Court: U.S. Supreme Court

142 U.S. 479

12 S.Ct. 295

35 L.Ed. 1087

Ex parte FASSETT.

January 11, 1892.

Sol. Gen. Taft, for petitioner.

Elihu Root and S. B. Clarke, for respondent.

Mr. Justice BLATCHFORD delivered the opinion of the court.

On the 7th of May, 1891, Frederick W. Vanderbilt, a native-born citizen of the United States, residing in the city of New York, purchased in England, from one Bailey, who was her registered owner, a sea-going schooner-rigged, screw steamship, called the 'Conqueror,' built at Glasgow, Scotland, of the gross tonnage of 317.91 tons, designed, intended, and constructed to navigate the high seas, not in the conveyance of passengers or merchandise for hire, but as a pleasure yacht only, which was the only use to which she ever had been put, or was intended to be put, by the purchaser. Bailey delivered to the latter a bill of sale in due form. The yacht was navigated to Halifax, and thence to the United States, arriving in the port of New York on July 6, 1891. Her master made due entry of her at that port, and reported her arrival to the collector of customs there, and delivered to him the necessary manifest. The collector thereupon collected light-money upon her, under section 4225 of the Revised Statutes. The master also presented to the collector the said bill of sale for record and certification. It was recorded in the collector's office, and he indorsed upon it a certificate, and delivered it back, so indorsed, to the master. The certificate was dated July 13, 1891, and was to the effect that the bill of sale was in the form and substance valid and effective in law, and had been duly fecorded in his office, and that Vanderbilt was a citizen of the United States.

Prior to July 1, 1891, and to the arrival of the yacht in the waters of the United States, Vanderbilt had been and continued to be a member of the Royal Mersey Yacht Club, and the vessel was enrolled among the yachts belonging to that club, which is a regularly organized yacht club of Great Britain, which country extends like privileges to the yachts of the United States; and, under section 4216 of the Revised Statutes, she was privileged to enter and leave any port of the United States within entering or clearing at the custom-house or paying tonnage tax.

On the 21st of August, 1891, the assistant secretary of the treasury notified J. Sloat Fassett, then collector of customs at the port of New York, that the solicitor of the treasury had advised the treasury department that the yacht was liable to duty under the fair intendment of the tariff act, and directed the collector to take the necessary steps for the appraisement of her for duty, and to have the duty upon her assessed and collected according to law.

On the 27th of August, 1891, in the navigable waters of the United States, in the harbor of New York, off Stapleton, within the jurisdiction of the district court of the United States for the southern district of New York, Fassett, without the consent and against the will of Vanderbilt, forcibly took possession of the yacht, and deprived Vanderbilt of the use and control of her, and detained her for the enforcement of the payment of duties upon her.

On the 1st of September, 1891, Vanderbilt filed a libel in the district court of the United States for the southern district of New York against the yacht and Fassett, setting forth the foregoing matters, and averring that the seizure of the yacht by Fassett was illegal and wrongful, and solely upon the claim that she was an article imported into the United States, within the fair intendment of the customs revenue laws, and as such liable to duty; that the duties which accrued upon her importation were unpaid; and that the collector was entitled to keep her in custody until they should be paid or secured; and averring that she was not seized under any claim of authority given by any provision of the laws of the United States relating to commerce and navigation, or of any law providing a penalty or forfeiture. The libel further everred that the yacht was not an imported article, within the true intent and meaning of the tariff or customs revenue laws of the United States; that Fassett, in his official capacity or otherwise, had no authority to keep possession of her: and that the premises were within the admiralty and maritime jurisdiction of the United States and of the court. The libel prayed for process against the yacht and Fassett personally, and for the delivery of the yacht to the libelant, and for the condemnation of Fassett to pay damages and costs.

On the filing of the libel the proper stipulation for costs was given on the part of the libelant, and process of attachment was issued against the vessel, returnable September 15, 1891, with a monition to Fassett. By the return to that process it appeared that the marshal had not seized the vessel. On motion, and after hearing both parties, the court issued an alias process on September 24, 1891, returnable October 6, 1891. The marshal made a return to this that he had attached her on September 29, 1891, and given the proper notice. Fassett having resigned his office, Francis Hendricks was appointed collector of customs in his place, and on October 1, 1891, took possession of the vessel, and held her for the payment of duties upon her, as an article imported into the United States. As the marshal's return to the alias process did not show that the vessel was in his custody, the court issued to him on October 8, 1891, a third process, returnable October 13, 1891, to which he made return that, on October 8, 1891, within the jurisdiction of the court, he had attached her by taking full and exclusive possession of her; that since such attachment he had been and was in exclusive possession of her under said process; and that he had given due notice.

On the 13th of October, 1981, the United States attorney entered his appearance as proctor for Fassett, personally and as late collector, on behalf of the United States and for Hendricks, as collector and claimant, on behalf of the United States. On October 15, 1891, he filed an answer and exceptions for Fassett personally, and a claim, answer, and exceptions for Fassett, as late collector, on behalf of the United States, and a claim, answer, and exceptions of Hendricks, collector, on behalf of the United States. The substance of those papers was to the effect that the possession of the vessel by the collector was not wrongful, because she was an article imported from a foreign country, and subject to duties under the revenue laws of the United States; that the court had no jurisdiction of the matters contained in the libel, because the cause was not a civil cause of admiralty and maritime jurisdiction, and the possession of the collector, on behalf of the United States, was provided for by the revenue laws of the United States, and the vessel was property taken or detained by the collector under authority of such laws, and in custody of the law; and a restitution of the vessel to the collector was asked for.

On the 19th of October, 1891, on a petition to this court, filed by Fassett, setting forth the material parts of the foregoing statement, this court issued an order to the judge of the district court of the United States for the southern district of New York, returnable November 2, 1891, to show cause why a writ of prohibition should not issue to him, to prohibit him from further holding the aforesaid plea.

To this order to show cause the judge has made due return, and the matter has been argued here by the counsel for both parties.

The principal question discussed at the bar was as to whether the Conqueror is liable to duty as an article imported from a foreign country into the United States; but, in the view we take of the case, we do not find it necessary or proper to consider that question, because we think that upon other grounds the writ of prohibition must be denied.

It is contended on behalf of the petitioner, Fassett, that when he, as collector, took possession of the yacht and decided that she was dutiable, the only remedy open to her owner was to pay under protest the duties assessed upon her, and in that way secure possession of her, with the right thereafter, as provided in sections 14 and 15 of the customs administrative act of June 10, 1890, (26 St. 131, 137, 138,) to obtain a refund of those duties by taking an appeal from the decision of the collector to the...