Riccomini v. United States, 7252.

• Decision Date: 20 February 1934
• Docket Number: No. 7252.,7252.
• Citation: 69 F.2d 480
• Parties: RICCOMINI v. UNITED STATES.
• Court: U.S. Court of Appeals — Ninth Circuit

69 F.2d 480 (1934)

RICCOMINI v. UNITED STATES.

No. 7252.

Circuit Court of Appeals, Ninth Circuit.

February 20, 1934.

Marshall B. Woodworth, of San Francisco, Cal., for appellant.

H. H. McPike, U. S. Atty., and Robert L. McWilliams and S. P. Murman, Asst. U. S. Attys., all of San Francisco, Cal., for the United States.

Before WILBUR, SAWTELLE, and GARRECHT, Circuit Judges.

GARRECHT, Circuit Judge.

This is an appeal from an order of the District Court sustaining defendant's demurrer to plaintiff's complaint, upon the sole ground that the causes of action therein stated were not within the jurisdiction of that court.

The complaint in the first cause of action sets forth that the United States is indebted to plaintiff in the sum of $2,167.50, alleged to have been illegally exacted on the 7th day of August, 1926, as customs duties, for the importation of merchandise some six years prior to filing the complaint. The exactions were pursuant to paragraph 802 of schedule 8, § 1, of the Tariff Act of 1922 (19 USCA § 121, Schedule 8, par. 802). The second cause of action, in language similar to the first, asks for $4,220 alleged to have been illegally exacted on the 19th day of April, 1929, as customs duties, for the importation of merchandise some three and one-half years prior to filing the complaint. Plaintiff further alleges that said section of said Tariff Act is unconstitutional.

The material part of said section reads as follows:

"Brandy and other spirits manufactured or distilled from grain or other materials, cordials, liqueurs, arrack, absinthe, kirschwasser, ratafla, and bitters of all kinds (except Angostura bitters) containing spirits, and compounds and preparations of which distilled spirits are the component material of chief value and not specially provided for, $5 per proof gallon; Angostura bitters, $2.60 per proof gallon."

The complaint alleged that plaintiff is and has been at all times mentioned in the complaint in the business of importing goods, wares, and merchandise from foreign countries into the United States, among these importants being "bitters of all kinds (except Angostura bitters) containing spirits, and compounds and preparations of which distilled spirits are the component material of chief value and not specially provided for," in the said Tariff Act, and especially bitters known as and called Amargo bitters; that plaintiff imported into the port of San Francisco from Hamburg, Germany, several hundred cases of said Amargo bitters; that under the said Tariff Act, as being enforced by the collector of customs at the port of San Francisco, plaintiff was compelled to pay an exaction of $5 per proof gallon, which in the aggregate amounted to sum sought to be recovered by this action.

The complaint then sets forth at length a state of facts which it is alleged makes these exactions illegal, and, in addition pleads that the provision under which the collector required the tax to be paid was unconstitutional and void.

To the complaint defendant interposed a general demurrer on two grounds. First, that the complaint wholly fails to state a cause of action. Second, that the court does not have jurisdiction. The court sustained the demurrer on the second ground alone.

The sole question presented is whether the United States District Court has jurisdiction of an action against the United States for the recovery of customs duties, alleged to have been illegally exacted as above stated under said Tariff Act.

Appellant contends that by subdivision 5, § 41, tit. 28 USCA, he is entitled to sue the government to recapture customs duties in the United States District Court.

The said subdivision provides:

"The district courts shall have original jurisdiction * * * of all cases arising under any law providing for internal revenue, or from revenue from imports or tonnage, except those cases arising under any law providing revenue from imports, jurisdiction of which has been conferred upon the Court of Customs Appeals."

Appellant also insists that subdivision 20 of section 41, title 28 USCA, gives the United States District Courts original jurisdiction in such controversies.

That section provides:

"The district courts shall have original jurisdiction * * * concurrent with the Court of Claims, of all claims not exceeding $10,000 founded upon the Constitution of the United States or any law of Congress, or upon any regulation of an executive department, or upon any contract, express or implied, with the Government of the United States, or for damages, liquidated or unliquidated, in cases not sounding in tort, in respect to which claims the party would be entitled to redress against the United States, either in a court of law, equity, or admiralty, if the United States were suable, and of all set-offs, counterclaims, claims for damages, whether liquidated or unliquidated, or other demands whatsoever on the part of the Government of the United States against any claimant against the Government in said court. * * *"

Appellant takes the position that the present suit can be maintained in the District Court under both or either of the above statutes. On the other hand the appellee contends that jurisdiction of controversies such as alleged in the complaint, involving the customs revenue laws, has been conferred upon the Court of Customs Appeals to the exclusion of the District Court.

While the complaint sets forth that the liqueurs for which the duties were exacted were imported from Germany into San Francisco, appellant makes the contention that if the particular section of the Tariff Act under which the collector of customs exacted the duties is unconstitutional, that it follows by implication of law that the liqueurs admittedly imported "were not imported merchandise," by which is meant "merchandise not subject to any tariff at all," in other words, all proceedings thereunder were entirely outside the customs law machinery, and jurisdiction of the collector of customs, that no protest would be required to be filed, and the whole matter would be without the jurisdiction of the Court of Customs Appeals.

By the allegations of the complaint and arguments based thereon to the effect that these goods, admittedly imported from Germany, were, in a legal sense, "not imported at all," it is sought to bring this case within the rule announced in Ex parte Fassett, 142 U. S. 479, 12 S. Ct. 295, 35 L. Ed. 1087, and similar cases cited by appellant. It is notable that the method and procedure adopted in that case was entirely different. There the collector of customs at the port of New York forcibly took possession of a yacht, and deprived the owner of the use and control of her and detained her for the enforcement of the payment of duties alleged to be due, upon the claim that she was an article imported into the United States within the meaning of the customs revenue laws, and, as such, subject to payment of duty. The owner did not pay the duty but filed a libel in the District Court of the United States for the Southern District of New York against the yacht and Fassett for the delivery of the yacht to him. Thereupon the collector applied to the Supreme Court of the United States for a writ of prohibition to the District Court, alleging want of jurisdiction in the District Court to entertain the suit. The Supreme Court, without considering the question of the libel of the vessel for duty, denied the writ, among other reasons being, that the District Court having jurisdiction of the vessel and the collector, the Supreme Court would not prohibit it from proceeding in the exercise of such jurisdiction. If the appellant had placed himself in a similar position by refusing to pay duties, and the collector thereupon had seized the goods, and then an action had been instituted...