United States v. American Express Co.

• Decision Date: 24 May 1907
• Docket Number: 4,888.
• Citation: 154 F. 996
• Parties: UNITED STATES v. AMERICAN EXPRESS CO.
• Court: U.S. District Court — Southern District of New York

154 F. 996

UNITED STATES v. AMERICAN EXPRESS CO.

No. 4,888.

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

May 24, 1907

The following is the opinion of the board sustaining said protests:

HAY General Appraiser. By these protests the right of the collector to exact the sum of 20 cents on each package in connection with the entry of what are known to the law as 'packed packages' is called in question. The importer contends that there is no authority of law for this exaction and that all fees were abolished by Customs Administrative Act June 10, 1890, c. 407, Sec. 22, 26 Stat. 140 (U.S. Comp St. 1901, p. 1895). The contention of the collector is that the charge is for storage and is authorized by section 2926 of the Revised Statutes (U.S. Comp. St. 1901, p. 1929). That part of section 22 which is invoked reads as follows:

'Sec 22. That all fees exacted and oaths administered by officers of the customs, except as provided in this act, under or by virtue of existing laws of the United States, upon the entry of imported goods and the passing thereof through the customs, and also upon all entries of domestic goods, wares and merchandise for exportation, be and the same are hereby abolished.'

Section 2926, invoked by the government representative, reads as follows:

'Sec. 2926. All merchandise, of which incomplete entry has been made, or an entry without the specification of particulars, either for want of the original invoice, or for any other cause, or which has received damage during the voyage, shall be conveyed to some warehouse or storehouse, to be designated by the collector, in the parcels or packages containing the same, there to remain with due and reasonable care, at the expense and risk of the owner or consignee, under the care of some proper officer, until the particulars, cost, or value, as the case may require, shall have been ascertained, either by the exhibition of the original invoice thereof, or by appraisement, at the option of the owner, importer, or consignee; and until the duties thereon shall have been paid, or secured to be paid, and a permit granted by the collector for the delivery thereof.'

In addition to these provisions of law Act May 1, 1876, c. 89, 19 Stat. 49 (U.S. Comp. St. 1901, p. 1868), must be considered. Omitting the enacting clause, this statute is as follows:

'That a separate entry may be made of one or more packages contained in an importation of packed packages consigned to one importer or consignee, and concerning which packed packages no invoice, or statement of contents or values, has been received. Every such entry shall contain a declaration of the whole number of parcels contained in such original packed package; and shall embrace all the goods, wares, and merchandise imported in one vessel at one time for one and the same actual owner, or ultimate consignee.

'Sec. 2. That the importer, consignee, or agent's oath prescribed by section twenty-eight hundred and forty-one of the Revised Statutes, is hereby modified for the purposes of this act, so as to require the importer, consignee or agent to declare therein that the entry contains an account of all the goods . . . imported in the . . . , whereof . . . is master, from . . . for account of . . . , which oath so modified shall in each case be taken on the entry of one or more packages contained in an original package. But nothing in this act contained shall be construed to relieve the importer, consignee, or agent from producing the oath of the owner or ultimate consignee in every case, now required by law; or to provide that an importation may consist of less than the whole number of parcels contained in any packed package, or packed packages consigned in one vessel at one time, to one importer, consignee or agent.'

It has been settled by repeated decisions that section 2926 of the Revised Statutes was not repealed or the charge for storage therein provided for abolished, by section 22 of the customs administrative act of 1890, for the reason that the charge provided for in section 2926 is a charge for storage, and not a fee, within the meaning of the law. Keveney's Case, G.A. 2,825 (T.D. 15,476); Bonneville's Case, G.A. 3,269 (T.D. 16,573); Kennedy v. Magone, 158 U.S. 212, 15 Sup.Ct. 814, 39 L.Ed. 954. Other than section 2926, it is not contended that there ever existed any law authorizing the fee or charge under dispute in the case at bar. This fee is not, therefore abolished by section 22, for it either exists by virtue of section 2926 or without express authority of law.

May this fee or charge be exacted under the provisions of section 2926? is the question first to be considered. To be authorized by this section, it must be a charge for an expense incurred incident to the removal and storage of the merchandise pending the ascertainment of its cost or value. The section applies only when there is an incomplete entry of merchandise, or an entry without the specification of particulars, or when the merchandise has been damaged during the voyage. Do the conditions exist to bring the case at bar within the purview of this statute? The merchandise has not been damaged during the voyage. Speaking entirely independent of the act of May 1, 1876, there is an incomplete entry, and an entry without the specification of particulars, within the meaning of that language as used in section 2926. The act of May 1, 1876, modifies all other acts with reference to the entry of merchandise of the character therein provided for. It is known as the 'Packed Package Act,' and its purpose seem to have been to make special provision for the entry of packed packages. It authorizes the entry of such packages without an invoice, and states what that entry shall contain. It legalizes an incomplete entry when made of such merchandise as is therein referred to. Can it be that, notwithstanding this, section 2926 of the Revised Statutes applies? To hold this would be in effect to say that the importer who enters his merchandise in strict compliance with one law is to have imposed upon him a burden not imposed upon the importer who enters his merchandise in strict compliance with another law.

Section 2926 is not a penal statute. The charge for storage and other expenses incident thereto which is therein provided for is intended to reimburse the government for expense necessarily incurred by reason of the failure of the importer to make entry of his merchandise in such a way as the law directs. It operates, however, upon the importer as a penalty for his failure to enter his merchandise as required by law; and if we were to hold that, where merchandise was entered in compliance with the act of May 1, 1876, the charges and costs provided for in section 2926 could yet be imposed, it would be to penalize the importer, who had in every respect complied with the law. This, we think, is not the intention of the section, and is repugnant to those principles of justice which lie at the foundation of all law. We think therefore, if the entry of a packed package is made in substantial compliance with this act, it cannot be said to be an incomplete entry or an entry without the specification of particulars. The entry of the merchandise in the case at bar, being made in compliance with the act, was therefore not incomplete, was...