Frazee v. Moffitt

• Decision Date: 01 February 1882
• Citation: 18 F. 584
• Parties: FRAZEE and another v. MOFFITT.
• Court: U.S. District Court — Northern District of New York

18 F. 584

FRAZEE and another v. MOFFITT.

United States Circuit Court, N.D. New York.

February 1, 1882

Kelly &amp MacRae, for plaintiffs.

Martin I. Townsend, Dist. Atty., for defendant.

BLATCHFORD J.

This is a suit against the collector of customs at Rouse's Point to recover back duties paid on hay in bales, imported from Canada into the United States. There is no duty on hay by name, but section 2516 of the Revised Statutes provides as follows:

'There shall be levied, collected, and paid on the importation of all raw or unmanufactured articles, not herein enumerated or provided for, a duty of ten per centum ad valorem; and on all articles manufactured in whole or in part, not herein enumerated or provided for, a duty of twenty per centum ad valorem.'

Hay is not otherwise enumerated or provided for. The collector imposed a duty of 20 per cent. on the hay, as a manufactured article. The plaintiffs protested and appealed to the secretary of the treasury. The ground of the appeal was that the duty should have been only 10 per cent., because, under section 2516, hay was a raw or unmanufactured article. The decision of the collector was affirmed. This suit was then brought. At the trial the plaintiffs had a verdict for $1,976.86, and the defendant now moves for a new trial on a bill of exceptions setting forth all the testimony taken on the trial.

1. There is an exception by the defendant as to the sufficiency of the protest. The protest was 'against any greater rate of duties being charged upon hay shipped to or by us from Canada to the United States, entered with you or at the customs office at Rouse's Point, than at the rate of ten per centum ad valorem, for the reason and on the grounds that no higher rate than ten per centum can lawfully or properly be charged on hay imported under the laws of the United States concerning duties on imports. ' There was also a notice that an appeal would be taken in case of an adverse decision. A proper protest, as well as an appeal, are prerequisites to the right to sue. Section 3011 Rev. St., as amended by the act of February 27, 1877, (20 St.at Large, 247.) The Protest must set forth 'distinctly and specifically' the grounds of objection to the decision of the collector as to the rate and amount of duties. Section 2931, Rev. St. This provision was made by the act of June 30, 1864, Sec. 14, (13 St.at Large, 214,) and is substantially the same as that in the act of February 26, 1845, (5 St.at Large, 727,) which required the protest to set forth 'distinctly and specifically' the grounds of objection to the payment of the duties.

It is contended for the defendant that the protest in this case does not comply with the statute, in that, although it objects to paying more than 10 per cent., it states no ground except that no more than 10 per cent. ought to be paid; and that it states only a conclusion of law, and leaves the defendant to find out as best he can why it is the law. But the protest was made in view of a liquidation of duties at 20 per cent., which is the 'greater rate of duties' referred to in the protest. The liquidation at 20 per cent. was under section 2516. No other provision of law than that section could possibly apply to hay. With section 2516 and the protest before him, the collector could not fail to understand from the protest that the rate of 10 per cent. claimed in it to be the proper duty was the rata of 10 per cent. named in section. 2516.

A mere protest against the payment of the duty exacted is not a compliance with the statute. This protest is not a mere protest against the duty charged. It is a protest against that, with the further statement that only 10 per cent. should have been charged on hay. Hay not being enumerated or provided for anywhere, if not in section 2516, and the 20 per cent. and the 10 per cent. being put in contrast both in the protest and in section 2516, and the collector having acted under section 2516 in imposing the 20 per cent., the language of the protest fairly referred the collector to the 10 per cent. clause of section 2516. A protest is a commercial document, usually made in the hurry of business, entitled to a liberal interpretation, and not requiring technical precision, while at the same time it must show fairly that the objection afterwards made at the trial was in the mind of the party and was brought to the knowledge of the collector, so as to secure to the government the practical advantage which the statute was designed to secure. Swanston v. Morton, 1 Curt.C.C. 294; Kriesler v. Morton, Id. 413; Burgess v. Converse, 2 Curt.C.C. 216.

The case of Steegman v. Maxwell, 3 Blatchf.C.C. 365, is nearer like the present case than any one I have been able to find. The plaintiffs imported articles known in commerce as 'thread laces,' composed of linen and cotton. The collector exacted 25 per cent. duty on them as 'cotton laces,' under Schedule D of the act of July 30, 1846, (9 St.at Large, 46.) 'Thread laces' was named in Schedule E, which was a 20 per cent. schedule. The protest was against the payment of the 25 per cent., and claimed that the 'thread laces' were liable to a duty of only 20 per cent. The court held that the protest was a notice of the collector, adequately distinct and specific, of the grounds of objection to the payment...