In re Laidlaw

• Decision Date: 13 May 1890
• Citation: 42 F. 401
• Parties: In re LAIDLAW et al.
• Court: U.S. Court of Appeals — Ninth Circuit

42 F. 401

In re LAIDLAW et al.

United States Circuit Court, D. Oregon.

May 13, 1890

Mr. C E. S. Wood, for petitioners.

Mr Franklin P. Mays, for the United States.

DEADY J.

This is a petition by the consignee and agent of the British ship Largo Law, to have the facts ascertained and transmitted to the secretary of the treasury, so as to procure a remission or mitigation of a certain tonnage tax, amounting to $793.50 imposed on said vessel by the collector of this port.

Briefly the case as stated in the petition is this:

In October, 1889, the Largo Law entered the port of San Diego, Cal., with a cargo from London, consisting partly of cement, of which 3,360 barrels were destined for this port. For the sake of convenience, as it is alleged, the duty on the whole of the cement was paid at San Diego, from which place the vessel then proceeded to this port with the cement on board destined here, where the collector imposed a tonnage tax on the vessel of 50 cents per ton, under section 4219, of the Revised Statutes, on the ground that she had on board goods,-- cement 'taken on in one district to be delivered in another district,'-- which action of the collector was on November 3, 1889, affirmed by the commissioner of navigation.

Notice of the application was given to the collector and district attorney, the latter of whom appeared and filed a demurrer to the petition.

The petition appears to have been filed under section 5292 of the Revised Stat utes. But that section has been superseded by section 17 of the act of June 22, 1874, (18 St. 186.) However, so far as this case is concerned, the sections are substantially the same.

Said section 17 provides:

'That whenever, for an alleged violation of the customs revenue laws, any person who shall be charged with having incurred any fine, penalty, forfeiture, * * * shall present his petition to the judge of the district in which the alleged violation occurred, * * * setting forth truly and particulary the facts and circumstances of the case, and praying for relief, such judge shall, if the case in his judgment requires proceed to inquire, in a summary manner, into the circumstances of the case, at such reasonable time as may be fixed by him for that purpose, of which the district attorney and the collector shall be notified by the petitioner, in order that they may attend and show cause why the petition should be refused.'

The case made by the petition is not one for the remission or mitigation of a fine, penalty, or forfeiture incurred by the petitioner, or any one else. A fine, penalty, or forfeiture can only be incurred by the doing or omitting of some act contrary to law. The Largo Law violated no provision of the customs revenue laws in coming to Portland with this cement.

It is true that section 4347 of the Revised Statutes forbids the transportation of merchandise from one port of the United States to another, in a vessel belonging in whole or part to a foreigner, under pain of...