Muser v. Robertson

• Decision Date: 06 July 1883
• Citation: 17 F. 500
• Parties: MUSER v. ROBERTSON. TIFFANY v. SAME. PRICKHARDT v. SAME.
• Court: U.S. District Court — Southern District of New York

17 F. 500

MUSER v. ROBERTSON.

TIFFANY v. SAME.

PRICKHARDT v. SAME.

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

July 6, 1883

S. G Clarke, Mr. Hartley, C. Bainbridge Smith, and others, for plaintiffs.

Elihu Root, U.S. Atty., and Mr. Clarke, Asst. Dist. Atty., for defendants.

BROWN J.

That part of the complaint in these cases which sets forth the illegal exaction of duties is in general terms, stating the amount exacted, the amount which was the legal duty, and the payment to the defendant of the excess by compulsion, in order to obtain the goods. A bill of particulars is annexed to the complaint, stating the classification of the goods on each importation, and all the other particulars required in such cases by section 3012. The complaint does not, however state the rate of duty claimed by the plaintiff to be applicable, nor the rate exacted by the collector, nor the classification of the goods by the collector. The precise point of the controversy does not, therefore, appear from the complaint. The demurrer in this case, and in numerous others of a similar character, has been interposed on the ground that the complaint does not state facts sufficient to constitute a cause of action, with the object of obtaining in future, if the court sustains the demurrer, a more intelligible statement in the complaint of the precise point in controversy. It is urged that this is necessary, because in the long time which often elapses before trial and the accumulation of thousands of such cases, it often happens that there is no record or paper in the district attorney's office showing the points in controversy, and no person there, or at the custom-house, able to give needed information to prepare for trial.

The protest and appeal which, by sections 2931, 3011, must precede suits of this character, are required to give precisely the information, as to the points in dispute, which the learned district attorney now seeks to obtain. If the contents of the protests were embodied in the complaint nothing more could be asked for. The complaint states that the plaintiff 'filed with said defendant due and timely protests in writing upon each entry of said goods against his (the defendant's) decision exacting such duty, setting forth distinctly and specifically, the grounds of objection thereto. ' By demurring, the defendant admits that such protests were filed. As these protests are the basis of the secretary's examination and decision upon the appeal to him before suit, and designed to enable him to correct any error without suit, the courts are very strict in exacting a careful compliance by the importer with the requirements of sections 2931, 3011, that the protest shall 'state specifically and distinctly the grounds of objection' to the duties exacted; and no suit can be maintained without such a previous protest, and no claim can be heard that is not distinctly set forth in it. Thomson v. Maxwell, 2 Blatchf. 385, 391; Durand v. Lawrence, Id. 396; Pierson v. Lawrence, Id. 495, 499. This protest, moreover, must be served on the collector at or before payment of the duties, and within 10 days after liquidation thereof, and appeal must be taken within 30 days therefrom, and suit must be brought, if at all, within 90 days after the secretary's decision; so that not only has the defendant precise information of the points in controversy in the written protest filed with him, but it must have been filed within so recent a period before suit as to be readily accessible to him, and while the controversy itself is presumably fresh in the memory of all the officers whose decision is brought in question by the suit. The bill of particulars, moreover, in all these cases, states the date of filing these protests, as well as the date of the appeal to the secretary. The defendant has full information, therefore, of the precise points in controversy, and, so far as he is concerned, no practical good would be accomplished by a repetition in the complaint of the details stated in the protests. If the office of the district attorney is not possessed of this information in these or in prior suits, it is because the defendant did not communicate to his attorney the information which he possessed, as he might easily have done, and as is ordinarily practiced between attorney and client. The present regulation of the secretary of the treasury, requiring such communication at the time issue is joined, will, if observed, supply the district attorney with such information in future.

The only question, then, is whether the complaints, all of which are in substance as above stated, contain what is technically a sufficient statement of a cause of action. The sufficiency of the pleadings is to be determined by the New York Code of Procedure. This requires a 'plain and concise statement of the facts constituting a cause of action. ' Section 481. But the rule of pleading at common law was the same, viz., that facts, not mere conclusions of law, were to be stated. 1 Chit.Pl. 214; Allen v. Patterson, 7 N.Y. 478.

The facts essential to be pleaded are, not those other subsidiary matters constituting the cause of action, not those other subsidiary matters of fact or law which got o make up the ultimate facts, and are evidences of the latter. There is often considerable doubt whether certain facts shall be taken to be essential parts of the very cause of action itself, or only evidence of it. To resolve this doubt, recourse is often had to the former rules of pleading, which, by their approved forms, show what are regarded as the ultimate facts constituting the cause of action. On this demurrer it was claimed that the complaint does not state facts, but only conclusions of law. This clearly is not accurate. The complaint in the Muser case, which is a sample of most of the fifteen complaints, states that the true duty by law on the goods imported was $2,483.25; that the collector exacted as duties $3,049, which the plaintiff was compelled to pay to get his goods, being $565.25 in excess of the legal duties, which excess he now seeks to recover. The statement of the amount exacted and paid is certainly a statement of pure fact; the only question that can be made is whether the statement that 'by law the true duty on said goods was $2,483.25,' is a statement of a conclusion of law merely, or a statement of fact. In my opinion, it should be considered as a statement of one of the ultimate facts in the case, as distinguished from the mere evidences of such fact. What the true duty is depends on a great variety of circumstances. There is no dispute about the letter of the law, but upon the application of different sections of law; and this may depend upon many circumstances to be given in evidence, such as the kind of goods, their quality, fineness, weight, mode of manufacture, component materials, the relative proportions or value different component...