Hedden v. Iselin

• Decision Date: 28 June 1887
• Citation: 31 F. 266
• Parties: HEDDEN v. ISELIN and others.
• Court: U.S. District Court — Southern District of New York

31 F. 266

HEDDEN v. ISELIN and others.

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

June 28, 1887

Alexander P. Ketchum, for defendants in error.

Henry C. Platt, Asst. U.S. Atty., for plaintiff in error.

WALLACE J.

This action was brought in the district court to recover a penalty under the provisions of section 2636, Rev. St. U.S. See 28 F 416. The statute is as follows:

'Every officer of the customs who demands or receives any other or greater fee, compensation, or reward than is allowed by law for performing any duty or service required from him by law, shall be liable to a penalty of $200 for each offense recoverable to the use of the party aggrieved.'

A verdict was rendered for the plaintiffs; and the defendant brings this writ of error to review the judgment entered upon the verdict. It appeared upon the trial that in July, 1885 the plaintiffs imported certain merchandise into the port of New York, of which port the defendant was collector, which was appraised for duty in advance of the invoice valuation. Being dissatisfied with the appraisement, the plaintiffs gave notice of such dissatisfaction to the collector and at the same time deposited with a clerk in the cashier's office at the custom-house the sum of $10 wherewith to pay a fee of the merchant appraiser on the reappraisement. The collector was not present when the $10 was so deposited, but, by a regulation of the secretary of the treasury, (article 472, Regulations 1883,) collectors were directed not to permit a delivery to importers of merchandise reappraised without payment of compensation at the rate of five dollars per diem to the merchant appraiser; and, pursuant to this regulation, and in order to secure such payment, it was the practice of the collector to require such a deposit to be made. Thereupon the collector selected a merchant appraiser; the reappraisement was made; the merchant appraiser was paid $2.50 for his compensation; and the balance of the deposit was refunded to the defendants in error. The exaction of this sum of $2.50 is the foundation of the present suit. It was not claimed upon the trial that an excessive compensation was exacted for the services of the statute authorizing the payment of any compensation to a merchant appraiser, and therefore that nothing should have been exacted of the plaintiff as compensation for his services.

At the close of the evidence the judge instructed the jury, in substance, that there was no statute which authorized the imposition of any charge upon the plaintiffs for the reappraisement of merchandise; that the reappraisement was a part of the system prescribed by law for ascertaining the value of importation; that it was a matter of right for the importer to have a reappraisement when dissatisfied with the appraiser's valuation; that it then became the collector's duty to appoint a merchant appraiser; and that any charge for the services of the merchant appraiser must be borne by the government. He submitted two questions of fact to the jury, instructing them that they were to determine,-- First, whether the payment in question was a voluntary payment or not; and, secondly, whether the collector received the money through a subordinate as a condition of going on with the reappraisement. Among other instructions requested in behalf of the defendant, the judge was requested to direct the jury to find a verdict for the defendant upon the ground that the evidence was not sufficient to establish a cause of action. The exception to this instruction is sufficient, in the view taken of the meaning of the statute imposing the penalty, to present the material questions now brought up for consideration.

The plaintiff in error now insists that the ruling of the district judge that the charge made for the compensation of the merchant appraiser was unauthorized, is error. This objection goes to the foundation of the action. The services for which compensation was exacted are performed by virtue of section 2930, Rev. St. U.S., which provides that if the importer shall be dissatisfied with the appraisement he may forthwith give notice to the collector in writing, on the receipt of which the collector shall select one discreet and experienced merchant, to be associated with one of the general appraisers, familiar with the character and value of the goods in question, to examine and appraise the same; and if they disagree the collector shall decide between them, and the appraisement thus determined shall be final, and deemed to be the true value. There is no specific provision of law declaring how or by whom the merchant appraiser thus selected is to be paid, or what compensation is to be allowed him for his services. Prior to the act of August 30, 1842, the merchant appraisers called in upon a reappraisement were employed by the importer, and by the terms of the statute 'at his own expense;' but that act vested the selection of the merchant appraiser in the collector, and did not contain the provisions previously existing for their Consequently that act left the whole subject of their compensation, and, whether it is to be paid by the importer or by the government, to implication. As the discharge of the duties devolving upon merchant appraisers was not compulsory, congress must have contemplated that they would not serve without compensation, and that they were to be paid either by the importer, as formerly, or by the government.

Shortly after the enactment of the act of August 30, 1842, the question arose in this court whether the fees of merchant appraisers were to be paid by the importer, and it was decided that a reappraisement under that act was at the expense of the importer, and he was bound to offer the fees of the appraiser in order to put the collector in the wrong for not ordering the reappraisement. Fielden v. Lawrence, 3 Blatchf. 120. This question was, however, only incidentally under consideration in that case, and does not appear to have been discussed by counsel; and, as the ruling upon the other points involved were decisive, its determination was not necessary to the decision of the case, and ought not to be controlling now. If there were any reasons to suppose that the changes introduced by the act of 1842 had been brought to the attention of the court, what was said, although obiter, would be entitled to the highest respect, as indicating the opinion of judges of great learning and great familiarity with all questions respecting the interpretation and construction of the revenue laws.

The plaintiff in error relies upon the construction of the law adopted by the treasury department, and, as is claimed consistently adhered to by that department ever since the act of August 30, 1842, went into effect. The only evidence in the record of this construction is found in the regulation of 1883, although there is no reason to doubt the statement in the brief of the attorney of the...