Klumpp v. Thomas

• Decision Date: 14 May 1908
• Docket Number: 30.
• Citation: 162 F. 853
• Parties: KLUMPP et al. v. THOMAS.
• Court: U.S. Court of Appeals — Third Circuit

162 F. 853

KLUMPP et al. v. THOMAS.

No. 30.

United States Court of Appeals, Third Circuit.

May 14, 1908

The case involves construction of the following statutory provisions:

'Sec. That the value of foreign coin as expressed in the money of account of the United States shall be that of the pure metal of such coin of standard value; and the values of the standard coins in circulation of the various nations of the world shall be estimated quarterly by the Director of the Mint, and be proclaimed by the Secretary of the Treasury. * * * And the values so proclaimed shall be followed in estimating the value of all foreign merchandise exported to the United States during the quarter for which the value is proclaimed: * * * provided, that the Secretary of the Treasury may order the reliquidation of any entry at a different value whenever satisfactory evidence shall be produced to him showing that the value in United States currency of the foreign money specified in the invoice was at the date of certification, at least ten per centum more or less than the value proclaimed during the quarter in which the consular certification occurred. ' Tariff Act Aug. 27, 1894, c. 349, Sec. 25, 28 Stat. 552 (U.S. Comp. St. 1901, p. 2375).

'Sec. 25 * * * Whenever duties upon any imported goods, wares and merchandise shall have been liquidated and paid, * * * such settlement of duties shall, after the expiration of one year from the time of entry, in the absence of fraud, and in the absence of protest by the owner, importer, agent or consignee, be final and conclusive upon all parties. ' Act June 22, 1874, c. 391, Sec. 21, 18 Stat. 190 (U.S. Comp. St. 1901, p. 1986).

'Sec. 14 * * * (The) board shall examine and decide the case thus submitted, and their decision, or that of a majority of them, shall be final and conclusive upon all persons interested therein, and the record shall be transmitted to the proper collector or person acting as such, who shall liquidate the entry accordingly, except in cases where an application shall be filed in the Circuit Court within the time and in the manner provided for in section 15 of this act. ' Customs Administrative Act June 10, 1890, c. 407, Sec. 14, 26 Stat. 137 (U.S. Comp. St. 1901, p. 1933).

'The Circuit Courts shall have original jurisdiction * * * of all suits at law or in equity, arising under any act providing revenue from imports. ' Extract from section 629, Rev. St. (U.S. Comp. St. 1901, p. 503).

Walden & Webster and Joseph M. Dohan, for plaintiffs in error.

J. Whitaker Thompson and Walter C. Douglas, Jr., for defendant in error.

Before DALLAS, GRAY, and BUFFINGTON, Circuit Judges.

BUFFINGTON Circuit Judge.

In the court below Klumpp and others, on April 21, 1906, brought suit against Thomas, collector of the port at Philadelphia, to recover $3,148.35, being duties alleged to have been wrongfully collected and retained on merchandise imported by them from India. At the trial the court directed a verdict for the defendant. On entry of judgment, Klumpp sued out this writ.

The goods in question were imported in 1897 and 1898. At this time the metal value of the Indian rupee ranged from 19 to 22 cents, while its exchange value was about 32 cents, as stated in the consular certificates of the invoices. The collector liquidated at exchange value. The importer paid that amount and filed a protest, which on August 11, 1905, the Board of Appraisers sustained. The entries were then reliquidated by the collector at metal value basis. On November 15, 1905, no refund having been made, the Secretary of the Treasury notified the collector that satisfactory evidence had been produced to him showing that the true value of the rupee in India in United States money at the respective dates of importation of these shipments was more than 10 per cent. in excess of the valuations estimated by the Director of the Mint and proclaimed by the Secretary of the Treasury for the quarters covering the importations. He instructed the collector to reliquidate the entries, and therein to reduce the money of the invoices to Unites States currency at the rate shown in the consular certificates. On December 15, 1905, the collector did so and adopted the original standard of liquidation.

It is contended by the importer that the collector was debarred from such action by the limitation statute (Act June 22, 1874, c. 391, Sec. 21, 18 Stat. 190 (U.S. comp. St. 1901, p. 1986)). Assuming, for argument's sake, that such statute applies where protests are filed, though the contrary has been held in Kendall v. Lyman, 161 F. 652, it is clear to us that no limitation would run while a protest was pending and undecided.

Statutes of limitation are statutes of repose, and are based on the likelihood that inaction for a protracted period would not occur unless a settlement had been made. But where litigation is going on, where the parties are using legal proceedings to effect a settlement, it would be at variance with the principles underlying limitations to hold that such statutes were then running. Hence the doctrine that the bringing of a suit suspends the running of a statute. 'Fraud, or the pendency of a protest which tends to retard the proceeding, extends the time. ' United States v. Fox (D.C.) 53 F. 536. It would therefore seem that until the protest in this case was finally determined on August 11, 1905, the running of the statute was suspended. This view renders it unnecessary to discuss the question whether the act of 1874, quoted, applies to the power delegated to the Secretary of the Treasury under the act of 1894 referred to hereafter.

The...