United States v. Bernays

• Decision Date: 28 February 1908
• Docket Number: 2,531 (suit 1,797)
• Citation: 158 F. 792
• Parties: UNITED STATES v. BERNAYS et al.
• Court: U.S. Court of Appeals — Eighth Circuit

158 F. 792

UNITED STATES v. BERNAYS et al.

No. 2,531 (suit 1,797)

United States Court of Appeals, Eighth Circuit.

February 28, 1908

Truman P. Young (Henry W. Blodgett, U.S. Atty., and Edward P Johnson, on the brief), Asst. U.S. Atty.

Joseph H. Zumbalen (Clinton Rowell, on the brief), for appellees.

Before SANBORN, HOOK, and ADAMS, Circuit Judges.

ADAMS Circuit Judge.

A. C Bernays, the intestate, prior to his death and while a resident of the United States, brought in from Yokohama when returning from a foreign tour certain articles of merchandise consisting of pictures, chairs, tables, and some other small trinkets, none of which are embraced within the terms 'wearing apparel, articles of personal adornment, toilet articles, and similar personal effects. ' The surveyor of customs at the port of St. Louis, where entry was made denied free entry because the merchandise was not brought in on the same ship with the importer, and because no claim of exemption was made at or before the time of entry. Protest against the denial of the claim followed in due time. This protest was heard by the Board of General Appraisers, and resulted in an order sustaining the ruling of the surveyor. In an appropriate proceeding instituted in the court below to secure a review of the order of the Board of General Appraisers, the Circuit Court reversed its decision, and directed the surveyor of customs to reliquidate the entry and admit the merchandise free of duty. From that judgment an appeal was duly prosecuted to this court.

Whether the imported articles should have actually accompanied the importer upon the same ship upon which he returned to this country or whether the claim of exemption should have been made at or prior to the date of entry of the merchandise are questions which do not necessarily concern us. In the view we take of the underlying question, whether under the provisions of paragraph 697 of section 2 of the tariff act of 1897 (30 Stat. 194, 202 (U.S. Comp. St. 1901, p. 1689)), any merchandise as distinguished from wearing apparel and personal effects is exempt from duty, these incidental questions become immaterial. Objection is made to our consideration of this fundamental question because of an insufficient assignment of error, but as it lies at the threshold of the case its consideration, in our opinion, is necessarily involved in the assignment of errors as filed, and even if it were not it seems that a plain error has been committed which under our rules we may and ought to notice.

The section and paragraph in question reads as follows:

'Sec. 2. That on and after the passage of this act unless otherwise specially provided for in this act, the following articles when imported shall be exempt from duty * * * Paragraph 697. Wearing apparel, articles of personal adornment, toilet articles and similar personal effects of persons arriving in the United States; but this exemption shall only include such articles as actually accompany and are in the use of and as are necessary and appropriate for the wear and use of such persons, for the immediate purposes of the journey and present comfort and convenience, and shall not be held to apply to merchandise or articles intended for other persons or for sale: Provided, that in case of residents of the United States returning from abroad all wearing apparel and other personal effects taken by them out of the United States to foreign countries shall be admitted free of duty without regard to their value upon their identity being established under appropriate rules and regulations to be prescribed by the Secretary of the Treasury, but no more than one hundred dollars in value of articles purchased abroad by such residents of the United States shall be admitted free of duty upon their return.'

Various views have been entertained of the meaning of this paragraph by the Board of General Appraisers, the Secretary of the Treasury, and the Attorney General. Some have expressed the view that the articles purchased abroad by residents of the United States and brought with them to this country when returning must consist exclusively of wearing apparel, articles of personal adornment, toilet articles and similar personal effects, in order to be entitled to free entry. G.A. 5,114 (T.D. 23,636), and T.D. 23,891. Others have held that any articles purchased abroad, whether personal effects like those just mentioned or any other kind of merchandise are exempt from duty when brought in by a returning traveler resident of this country to the extent of $100 in value. Opinions of Attorneys General, vol. 25, p. 93.

The District Court of the Northern District of California in United States v. Harts, 131 F. 886, 889, held in effect that a returning resident's right to exemption from duty is limited to his personal effects. The Circuit Court of Appeals of the Second Circuit in United States v. One Pearl Necklace, 111 F....