Iselin v. Hedden

• Decision Date: 01 June 1886
• Citation: 28 F. 416
• Parties: ISELIN and others v. HEDDEN, Collector, etc.
• Court: U.S. District Court — Southern District of New York

28 F. 416

ISELIN and others v. HEDDEN, Collector, etc.

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

June, 1886

Mr Tremain, for plaintiffs.

Mr Platt, for defendant.

BROWN J.

This action is brought to recover of the collector a penalty of $200, under section 2636, Rev. St., upon the ground that he received a fee that he was not entitled by law to charge upon a reappraisement of the plaintiff's goods. To entitled the plaintiffs to recover, it must appear that the charge was illegal; and that it was received for a service that the plaintiffs had a right to require from the collector without charge.

If the deposit of the $10 in this case, no matter though its purpose was to pay the merchant appraiser, was required by the collector as a condition of ordering a reappraisement, it was an illegal exaction. No statute has been pointed out that authorizes any requirement that the importer shall pay the expenses of the merchant appraisers upon reappraisements. Section 2725, which provides for the payment of five dollars per day, applies only to ports where there is no appraiser. Section 2733, however, provides that for 'every other person that the collector may find it necessary and expedient to employ as occasional inspector, or in any other way in aid of the revenue, a like sum, while actually so employed, not exceeding three dollars for every day so employed. ' If there is no other statutory provisions applicable to merchant appraisers in ports where there is an appraiser, that section would seem to apply. But that section, like numerous others, provides merely for the officer's compensation. Nothing in it makes this compensation a charge upon the importer, or authorizes its collection from him. No fee or deposit can therefore be lawfully required to be paid by the importer for a reappraisement, when he gives notice of his dissatisfaction with the appraiser's valuation in accordance with section 2930. The reappraisement in such a case is a part of the mode pointed out by law for ascertaining the value of the importation for the purpose of levying duties. It is as much a right of the importer to have that reappraisement made when he is dissatisfied with the appraiser's valuation as it is the right of the government in the first instance to have its general appraiser appraise the merchandise without any notice to the importer, or without the aid of a merchant appraiser. It is no more the duty of the importer to pay the expense of the merchant appraiser than that of the general appraiser. The reappraisement, after notice of dissatisfaction, is, like the appraisement, one of the necessary means of finally determining the value upon which the duties are to be liquidated. Under the law, as it now stands, the importer has nothing to do with the selection of the merchant appraiser. He simply notifies the collector of his dissatisfaction. It is then the collector's duty to appoint an additional appraiser. The import cannot be lawfully subjected to any charge for either service, because no law imposes such a charge upon him. If, therefore, the collector required and received this $10 as a condition of proceeding with the reappraisement, the penalty prescribed by section 2635 was incurred.

It has been argued before you that this was a voluntary payment by the importer. There was no objection or protest against the payment in this instance. It is not necessary, however, that there should always be a protest accompanying the payment of a sum of money which is paid in order to obtain the performance of a duty, or the allowance of a right, to render the payment an enforced payment. Where there is a settled and well-known course of business requiring such payment, which has been continued for a considerable time, and the fact is known that the right is not accorded, and the proceedings are...