An importation of goods into the port of New York in 1881 being
classified under the first clause of Revised Statutes section 2499
by the customs officers, as bearing a similitude to manufactures
composed wholly or in part of the hair of the alpaca, goat, or
other like animals, the importer paid the duties demanded under
that classification -- fifty cents per pound and 35 per cent ad
valorem -- first protesting that the goods were
"composed of hair and cotton only, and as such should pay a duty
of 35 per cent ad valorem, as a nonenumerated article under the
second half of Rev. Stat. section 2499, being the highest rate of
duty which any of the component material pays."
In an action brought by the importer to recover the alleged
excess of duties so demanded and collected,
held that this
protest was defective in that it failed to point out or suggest in
any way the provision which actually controlled, and in effect only
raised the question which of two clauses, under one or the other of
which it was assumed that the importation came, should govern as
being most applicable.
Action to recover duties paid under protest. Trial by jury, and
bill of exceptions as follows:
"This action was brought to recover the difference in duty
between 35 percent
ad valorem and various higher rates of
duty assessed and paid upon certain goods imported by plaintiffs at
the port of New York in the year 1881."
"Duties were paid to defendant under protest as follows: against
defendant's liquidation claiming:"
"The goods in question are liquidated by you as being liable to
a duty of fifty cents per pound and 35 percent
ad
val."
" We claim the goods are composed of hair and cotton only, and
as such should pay a duty of 35 percent
ad val. as a
nonenumerated article, under the second half of section 2499,
Revised Statutes, being the highest rate of duty which any of the
component material pays."
"Plaintiffs thereafter, in due time, appealed and brought this
suit."
"Further, to maintain the issues on their part, plaintiffs
Page 152 U. S. 522
introduced samples of the goods in question and evidence tending
to show from an analysis their component material to be calf hair
and cotton exclusively. Among other evidence on this point, a
report as to these samples from Prof. Torrey, an expert witness,
was verified by him, and on this point was as follows:"
" The sample marked 'C 386' by the Republic, August 12, 1887,
found to contain 87.4 calf hair and 12.6 cotton by weight."
" The next sample, '292,' Arizona, Aug. 20, 1887, 86.6 calf hair
and 13.4 cotton."
" Sample 760, Alaska, Dec. 1887, 88.5 calf hair and 11.5
cotton."
" H. T. 2,680, 85.6 calf hair and 14.4 cotton."
" H. T. 2,759, 86.1 calf hair and 13.9 cotton."
" The above samples were all composed of calf hair and cotton,
with no admixture of wool that could be detected by the aid of the
microscope."
" (Signed H. G. Torrey, government examiner of textile
fabrics.)"
"There was no admixture of wool in the goods."
"It further appeared that the goods in question were a low grade
of calf-hair goods. It further appeared that they cost less than
forty cents per pound, the foreign value per running yard being
from one shilling and ten pence to two pence."
"Plaintiffs having rested, counsel for defendant, without
introducing any evidence, moved the court to direct a verdict for
the defendant, which motion was granted, and the counsel for the
plaintiffs then and there duly excepted, and the exception was
allowed."
The verdict having been returned as directed, and judgment been
entered thereon, plaintiffs brought the case to this Court on writ
of error.
Page 152 U. S. 523
MR. CHIEF JUSTICE FULLER, after stating the facts in the
foregoing language, delivered the opinion of the Court.
The claim made by the protest was that these goods were
dutiable, as nonenumerated, under the last clause of section 2499
*, at 35 percent
ad valorem, as being composed of hair and cotton only, and
the cotton chargeable at a higher rate than calf hair. The report
of the case, 41 F. 881, shows, and it is so asserted by the
government, that the goods were classified under the first clause
of that section as bearing a similitude to manufactures composed
wholly or in part of "the hair of the alpaca, goat, or other like
animals," as provided by the twelfth paragraph of class 3 of
Schedule L, section 2504, Revised Statutes (2d ed. 471), and
therefore dutiable at 20, 30, 40 or fifty cents per pound,
according to value, in addition to 35 percentum
ad
valorem. According to the protest, the liquidation was at
fifty cents per pound in addition to the 35 percent, according to
the bill of exceptions at "various higher rates" than the 35
percent, and, according to the case as reported, the exaction was
at twenty cents per pound and 35 percent
ad valorem. What
the classification actually was is not shown by the bill of
exceptions, but if it were as reported, there is nothing in the
record to overcome the presumption in favor of the correctness of
the collector's action, and
Arthur v. Fox, 108 U.
S. 125, would be in point. But it is admitted that the
circuit court held that the decision
Page 152 U. S. 524
in
Arthur v. Butterfield, 125 U. S.
70, applied, and that the goods were manufactures of
hair, and as such provided for by the clause in Schedule M, section
2504, Revised Statutes (2d ed. 476), under the phrase, "and all
other manufactures of hair, not otherwise provided for, thirty
percentum
ad valorem," and therefore, being enumerated,
were not within section 2499.
The ruling in
Arthur's v. Butterfield was that "goat's
hair goods," composed of 80 percent of goat's hair and 20 percent
of cotton, came within the clause last above referred to, and
that
"in the absence of a settled designation of a cloth by merchants
and importers, its designation as hair, silk, cotton, or woolen for
the purposes of customs revenue depends upon the predominance of
such article in its composition, and not upon the absence of any
other material."
Counsel for plaintiffs in error conceded in argument that that
case would be applicable if these fabrics had been 80 percent of
hair in value, but insisted that there was no proof that the hair
was the main element of value, and that it did not follow that the
relative values accorded with the relative weights. But the bill of
exceptions does not exclude the inference that there was evidence
of relative value, or that counsel assumed that goods consisting by
weight of 85 1/2 to 88 1/2 percent of calf's hair to 11 1/2 to 14
1/2 percent of cotton were to be taken as containing 80 percent of
hair in value as compared with the value of the cotton.
The case was disposed of below on the question of the
sufficiency of the protest, and that it is really the only question
for consideration here.
The requisition of the statute, Rev.Stat. §§ 2931,
3011; Act Feb. 27, 1877, 19 Stat. 240, c. 69, as to the notice to
be given the collector in order to recover back an excess of duties
paid is thus expounded by Mr. Justice Clifford in
Davies v.
Arthur, 96 U. S. 148,
96 U. S.
151:
"Protests of the kind must contain a distinct and clear
specification of each substantive ground of objection to the
payment of the duties. Technical precision is not required,
Page 152 U. S. 525
but the objections must be so distinct and specific as, when
fairly construed, to show that the objection taken at the trial was
at the time in the mind of the importer and that it was sufficient
to notify the collector of its true nature and character, to the
end that he might ascertain the precise facts and have an
opportunity to correct the which could be obviated.
Burgess v.
Converse, 2 Curt. 223."
"Two objects, says Judge Curtis, were intended to be
accomplished by the provision in the act of Congress requiring such
a protest: (1) to apprise the collector of the objections
entertained by the importer, before it should be too late to remove
them, if capable of being removed; (2) to hold the importer to the
objections which he then contemplated, and on which he really
acted, and prevent him or others in his behalf from seeking out
defects in the proceedings, after the business should be closed, by
the payment of the money into the Treasury.
Warren v.
Peaslee, 2 Curt. 235;
Thompson v. Maxwell, 2
Blatchford 392."
And this is reiterated in substance by Mr. Justice Blatchford in
Arthur v. Morgan, 112 U. S. 495,
112 U. S. 501,
where he said for the Court:
"A protest is not required to be made with technical precision,
but is sufficient if it shows fairly that the objection afterwards
made at the trial was in the mind of the party, and was brought to
the knowledge of the collector, so as to secure to the government
the practical advantage which the statute was designed to
secure."
That was the case of the importation of a carriage, claimed in
the protest to be "personal effects" used by the owner "over a
year" before importation, it being also stated that "personal
effects in actual use" were free from duty, whereas the carriage
came under the head, "household effects in use abroad not less than
one year." Personal effects in actual use and household effects if
used abroad not less than one year were alike exempt from duty,
and, as the error was plainly clerical and could not have misled
the collector, the protest was held sufficient.
In
Heinze v. Arthur's Executors, 144 U. S.
28,
144 U. S. 34,
the goods were gloves made on frames and composed of cotton and
silk,
Page 152 U. S. 526
in which cotton was the component part of chief value, and were
dutiable at 35 percent
ad valorem, less 10 percent, as
gloves made on frames of whatever material composed. The collector
rated them at 60 percent
ad valorem as "ready-made
clothing of silk, or of which silk shall be a component material of
chief value," or "silk gloves."
The protest specifically stated that the goods were "partly
cotton gloves, mixed with silk," and "composed of cotton and silk;
cotton chief part; the duty of 60 percent being only legal where
silk is the chief part;" and that the gloves were liable to a duty
of only 35 percent, less 10 percent. The objection was that the
protest did not state that the gloves were made on frames, and this
Court held, again speaking through Mr. Justice Blatchford,
that:
"It is entirely immaterial that the protest did not specify that
the gloves were made on frames. It was sufficient to state that the
gloves were composed of cotton and silk, and that the cotton was
the component material or part of chief value, and the silk was not
the component material of chief value. The importers were bound
only to state, as they did, that the duty of 60 percent was
illegal, and why it was illegal."
In the case at bar, the goods were apparently classified under
the similitude clause, but that was not correct, because they were
to be regarded as "manufactures of hair," and therefore
enumerated.
But the importers also insisted that the goods were
nonenumerated, and did not assert that they were not within the
clause relied on by the collector, save as it was objected that
they came under the last clause of section 2499, which was likewise
incorrect. The protest failed to point out or suggest in any way
the provision which actually controlled, and in effect only raised
the question which of two clauses, under one or the other of which
it was assumed that the importation came, should govern as being
most applicable. We agree with the circuit court in holding the
protest to have been insufficient.
Judgment affirmed.
MR. JUSTICE JACKSON was not present when this case was argued,
and took no part in its decision.
*
"SEC. 2499. There shall be levied, collected, and paid on each
and every nonenumerated article which bears a similitude either in
material, quality, texture, or the use to which it may be applied
to any article enumerated in this title, as chargeable with duty,
the same rate of duty which is levied and charged on the enumerated
article which it most resembles in any of the particulars before
mentioned, and if any nonenumerated article equally resembles two
or more enumerated articles, on which different rates of duty are
chargeable, there shall be levied, collected, and paid, on such
nonenumerated article, the same rate of duty as is chargeable on
the article which it resembles paying the highest duty, and on all
articles manufactured from two or more materials, the duty shall be
assessed at the highest rates at which any of its component parts
may be chargeable."
