Louisville Public Warehouse Co. v. Collector of Customs

• Citation: 49 F. 561
• Parties: LOUISVILLE PUBLIC WAREHOUSE CO. v. COLLECTOR OF CUSTOMS.
• Decision Date: 16 January 1892
• Court: U.S. Court of Appeals — Sixth Circuit

49 F. 561

LOUISVILLE PUBLIC WAREHOUSE CO. v. COLLECTOR OF CUSTOMS.

United States Court of Appeals, Sixth Circuit.

January 16, 1892

Augustus E. Wilson, (Wilson & Thum, of counsel,) for appellant.

Geo. W Jolly, U.S. Dist. Atty., for appellee.

Before JACKSON, Circuit Judge, and SAGE and SWAN, District Judges.

JACKSON Circuit Judge.

The question of law presented by the record in this case is whether the duty on reimported whisky, once exported, of the product or manufacture of the United States, should be levied and collected on the quantity thereof imported and entered into a custom warehouse under bond, or upon the quantity actually withdrawn from such warehouse. The material facts of the case on which this question arises are the following Five barrels of whisky, having the serial numbers 1168, 1169 1170, 1171, and 1172, and manufactured in the United States were exported to a foreign country before any internal revenue tax had been assessed and paid thereon. This whisky was reimported into the United States on January 6, 1890. The importers executed a warehousing bond, as required by law, and the spirits were entered into the customs bonded warehouse at Louisville, Ky., in January, 1890. The 5 barrels, as gauged by the customs gauger at or about the time of such entry in the warehouse, were found to contain 162 taxable gallons. The appellant, as the importer and consignee thereof, withdrew said 5 barrels of whisky from the bonded warehouse on November 28, 1890, and was required to pay the tax on 162 gallons, the original quantity entered into warehouse, at 90 cents per gallon, amounting to $145.80. The actual quantity in the 5 barrels at the time of the withdrawal was 155 gallons, 7 gallons having evaporated or been lost while in the customs warehouse. The appellant, as the importer, insisted that it was not liable to any tax or duty except on the 155 gallons shown by the regauge to be in the 5 barrels at the date of their withdrawal. The surveyor of the port at Louisville, acting as the collector of customs, decided that appellant should pay duty on the 162 taxable gallons originally entered into the warehouse, and that it was not entitled to any deduction or allowance on account of the loss of the seven gallons between the date of entry and withdrawal of the whisky. The appellant paid the tax or duty of 90 cents per gallon on said 7 gallons of lost spirits under protest, claiming that the exaction was unauthorized and illegal, because the provisions of the Revised Statutes of the United States required the tax to be assessed by the weight of the goods, and by the fiftieth section of the act approved October 1, 1890, known as the 'McKinley Bill,' it was provided that, when duty is based upon the weight of merchandise deposited in any public or private warehouse, said duty shall be levied and collected upon the weight of said merchandise at the time of its withdrawal, and thereupon appealed from the decision of the surveyor or collector to the board of United States general appraisers at New York. The protest and papers relating to the matter were transmitted to said board of general appraisers, who, after consideration of the question presented, on March 9, 1891, affirmed the action of the surveyor of customs, the same being in accordance with a decision of said board rendered February 4, 1891, No. 300 G.A. Thereafter on April 4, 1891, the appellant filed in the circuit court for the district of Kentucky an application for a review by said court of the questions of law and fact involved in the decision of said board of United States general appraisers, who, in pursuance of the order of the court, returned to said circuit court the record and evidence of the proceedings taken and had before it in the premises, with a certified statement of the facts involved in the case, and their decision thereon. This proceeding by appellant for a review of the decision of said board of general appraisers was had and taken under the act of June 10, 1890, entitled 'An act to simplify the law in relation to the collection of the revenue,' (26 St.at large, p. 131,) the fourteenth and fifteenth sections of which provide, in substance, that, if an importer is dissatisfied with the decision of the collector as to the rate and amount of duty chargeable upon imported merchandise, he may, within a certain time, upon the payment of such duty, give notice in writing to the collector of his objection thereto. Upon such notice and payment the collector shall transmit the invoice and all papers and exhibits connected therewith to the board of three general appraisers at New York, which shall examine and decide the case thus submitted; and, if the importer is dissatisfied with the decision of said board, he may, within 30 days next after such decision, apply to the circuit court of the United States within the district in which the matter arises for a review of the questions of law and fact involved in such decision. The application for such review is required to set forth a concise statement of the errors of law and fact complained of; and upon the filing thereof with the clerk the court is required to order the board of general appraisers to make a return to said court of the record and evidence taken by them, with a certified statement of the facts involved in the case, and their decision thereon; and said return, together with such further evidence as may be introduced by either side to the controversy, 'shall constitute the record upon which said circuit court shall give priority to, and proceed to hear and determine, the questions of law and fact involved in such decision, respecting the classification of such merchandise, and the rate of duty imposed thereon under such classification, and the decision of such court shall be final; and the proper collector, or person acting as such, shall liquidate the entry accordingly, unless such court shall be of opinion that the question involved is of such importance as to require a review of such decision by the supreme court of the United States, in which case said circuit court, or the judge making the decision, may within thirty days thereafter allow an appeal to said supreme court.'

After said board of general appraisers had, in obedience to its order, made this return to the circuit court as provided by the said act, which, together with the application, constituted the record upon which said court was to hear and determine the questions of law and fact involved, neither side having offered or desired to introduce any further evidence, the United States attorney for the district of Kentucky appeared on behalf of the United States, and moved to dismiss the proceedings, and also demurred thereto, because upon the facts appearing in the record the appellant or applicant was entitled to no relief. The motion to dismiss was overruled, and the demurrer was sustained. The applicant declined to plead further, and it was thereupon ordered and adjudged by the court that said application be and the same was dismissed with costs; and the court being of the opinion that the question involved was of such importance as to require a review of its decision by the United States circuit court of appeals for the sixth circuit, or by the supreme court of the United States, sustained the applicant's motion therefore, and allowed it an appeal to this court. The opinion of BARR, J., sustaining the demurrer and dismissing the application, is reported in 48 F. 372.

The appellee or attorney for the United States has moved to dismiss said appeal because this court has no jurisdiction to entertain the same. In support of this motion, it is insisted that under the foregoing provisions of the fifteenth section of the act of June 10, 1890, the lower court could only allow the appeal to the supreme court of the United States. Said section did not confer any absolute right of appeal on the part of the applicant for review from the decision of the circuit court; but said court, or the judge making the decision, was authorized and empowered 'to allow an appeal to said supreme court' in case the court or judge should be of opinion that the question involved was of such importance as to require a review of the decision by the supreme court of the United States. When said act of June 10 1890, was passed, and went into operation, appeals could be taken and allowed from decisions of the circuit courts to the supreme court alone. No other court had or possessed appellate jurisdiction in respect to such decisions. By the act approved March 3, 1891, the circuit court of appeals was established and invested with appellate jurisdiction to review by appeal or by writ of error final decisions in the district and circuit courts, in all cases other than those provided for in the fifth section of said act, 'unless otherwise provided by law.' By the fifth section of said act the cases are defined and enumerated in which appeals and writs of error may be taken from the district and circuit courts direct to the supreme court. It is not claimed that the present is one of the cases therein enumerated, which have to be taken for review to the supreme court; but it is claimed that it does not come within the provisions of the sixth section of said act, because, while not embraced in the fifth section, it is 'otherwise provided by law' that the appeal shall be allowed, if at all, to the supreme court,-- in other words, that the appeal to the supreme court under the fifteenth section of the act of June 10, 1890, is excepted from the jurisdiction of this court under the sixth section of the act of March 3, 1891, by force of the words, 'unless otherwise provided by law.' This construction of the two acts would lead to the result of practically depriving ...