By the submission of a case to the judgment of the circuit court
upon an agreed statement of facts, all questions of pleading are
waived, and no finding of facts by the court is necessary.
By sections 2931 and 3011 of the Revised Statutes, as amended by
the Act of February 27, 1877, c. 69, if at the first port of entry,
not being one of the ports at which the statutes authorize goods to
be imported and shipped through without appraisement, goods
imported by sea are entered for warehousing and immediate
transportation by the same vessel to another port and are
transported accordingly, and the duties thereon are assessed by the
collector at the first port, and again by the collector at the
second port and paid by the importers to the second collector to
obtain possession of the goods, no part of the duties can be
recovered back in an action by them against him unless due protest
is made within ten days after the decision of the first collector
as to the rate and amount of duties.
This was an action, brought May 15, 1888, against the collector
of customs for the port of Boston and Charlestown to recover back
duties exacted by him and paid under protest upon blueberries
imported by the plaintiffs from New Brunswick. No answer was filed,
but the case was submitted to the decision of the circuit court
upon a statement of facts in which it was agreed that the
regulations of the Treasury Department might be referred to, and
that the court might enter judgment as the law required upon the
facts stated, which were, in substance, as follows:
On October 22, 1887, the plaintiffs imported from New Castle, in
the province of New Brunswick, into the port of Eastport, in the
State of Maine, upon the steamship
Cumberland, running
regularly between St. John, New Brunswick, Eastport, and Boston, in
the State of Massachusetts, five hundred cases of canned
blueberries consigned to John Thompson, the master of the
steamship, to be by him entered at the custom-house at Eastport,
and thence to be immediately transported
Page 152 U. S. 629
in bond to the port of Boston, consigned to the plaintiffs, and
the goods were duly entered by him, as agent of the plaintiffs at
the custom-house at Eastport, for warehouse and immediate
transportation, without being removed from the steamship. On the
same day, the duties were assessed by the collector at Eastport,
and the amount of duty fixed at $144, being twenty percent of $720,
the value of the blueberries, cases, cans, and cost of packing,
added together, that being the amount of the entered value as
stated in the invoice. The value of the blueberries was $315, the
value of the coverings $330, and the cost of packing them $75. The
cases were made of wood. Each case contained twenty-four cans, made
of tin, and each can contained one and a half pounds of
blueberries. Both the cases and the cans were the usual and
necessary coverings or such goods, and were not of any material or
form designed to evade duties thereon, nor designed for use
otherwise than in the
bona fide transportation of the
goods to the United States.
The goods were immediately transported by the same steamship to
Boston. Upon examination of the goods by the United States
appraisers in Boston, they reported to the defendant that the
dutiable value of the same was $315, being the cost of the
blueberries, without including the value of the coverings or the
cost of packing them, and the defendant wrote to the collector at
Eastport calling his attention to the fact that he had included the
value of the coverings in his assessment; but he refused to correct
it. Thereupon the defendant reported the case to the Secretary of
the Treasury, informed the collector at Eastport of the fact, and
meantime suspended the entry. On November 11, 1887, the Secretary
of the Treasury wrote a letter to the collector at Eastport
instructing him to make the correction.
On November 18, 1887, the plaintiffs entered the goods at the
custom-house in Boston for re-warehousing and withdrawal. The
defendant assessed the duties thereon for the same amount and made
up of the same items as the collector at Eastport, and exacted
payment of the same from the plaintiffs. They contended that the
merchandise was subject to a duty of
Page 152 U. S. 630
twenty percent of the value of the blueberries, not including
the value of the boxes and cans or the cost of packing, and paid
the assessed duties to the defendant under protest, and, being
dissatisfied with his decision, on the same day gave to him, and
mailed to the collector at Eastport, notices thereof in writing,
setting forth distinctly and specifically the grounds of their
objection, and appealed to the Secretary of the Treasury, who
declined to entertain the appeal on the ground that the protests
had not been seasonably filed, but affirmed the assessment by the
collector at Eastport, and the plaintiffs seasonably brought this
suit to recover the sum of $81, exacted and paid upon the coverings
and cost of packing.
Upon the agreed statement of facts, the circuit court gave
judgment for the plaintiffs, and the defendant sued out this writ
of error.
MR. JUSTICE GRAY, after stating the case, delivered the opinion
of the Court.
The case having been submitted to the circuit court upon a
statement of facts agreed by the parties, or case stated, upon
which the court was to render such judgment as the law required,
all questions of the sufficiency of the pleadings were waived, and
the want of an answer was immaterial, and no finding of facts by
the court was necessary.
Willard v. Wood, 135 U.
S. 309,
135 U. S. 314;
Bond v. Dustin, 112 U. S. 604,
112 U. S.
607.
It is conceded that the duties complained of were illegal in
view of the decision of this Court in
Oberteuffer v.
Robertson, 116 U. S. 499, and
that the only question in the case is whether protest should have
been made, under sections 2931 and 3011 of the Revised Statutes
within ten days after the liquidation of the duties at
Eastport.
Page 152 U. S. 631
By the customs acts of the United States, except as otherwise
expressly provided, duties on imported goods are to be assessed and
paid at the first port of entry.
United
States v. Vowell, 5 Cranch 368;
Meredith
v. United States, 13 Pet. 486,
13 U. S. 494;
Hartranft v. Oliver, 125 U. S. 525. For
the purpose of encouraging and facilitating commerce by exempting
the importer from the payment of duties until he is ready to bring
his goods into market, provision has been made by which the goods
may be entered for warehousing and deposited in a bonded warehouse
in the district of entry, and may be transported to a bonded
warehouse in any other collection district, and the payment of
duties postponed until the goods are withdrawn, and they may be
withdrawn for consumption within one year from the date of original
importation on payment of the duties and charges to which they may
be subject by law at the time of such withdrawal, or after that
time and within three years from such date, on payment of the
duties assessed on the original entry and charges and ten percent
additional. Rev.Stat. §§ 2962, 2970, 3000, 3001;
Tremlett
v. Adams, 13 How. 295,
54 U. S. 303;
Fabbri v. Murphy, 95 U. S. 191;
Westray v. United
States, 18 Wall. 322. For the same purpose,
provision has been made by which merchandise imported at certain
ports, appearing to be consigned to one of the ports afterwards
named in the statute, may be entered for warehouse and immediate
transportation, and examined, and the duties estimated at the port
of first arrival, but the appraisement and liquidation of duties
made at the port of destination. Rev.Stat. §§ 2990-2997; Acts June
10, 1880, c.190, 21 Stat. 174; February 23, 1887, cc. 215, 218, 24
Stat. 411, 414. But the goods in question were not deposited in or
withdrawn from a bonded warehouse; nor is Eastport one of the ports
at which goods can be imported and shipped through without
appraisement. It follows that articles 721-725, 740, and 743 of the
Treasury regulations of 1884, cited by the importers, have no
application to the case, and that the assessment at Eastport was
the final ascertainment and liquidation of the duties upon these
goods. That such was the opinion of the Treasury Department appears
from its
Page 152 U. S. 632
having addressed its letter of instructions for the correction
of the assessment not to the defendant, but to the Eastport
collector, as well as from the reasons which it gave for
disallowing the appeal of the importers. And we have been referred
to no act of Congress, Treasury regulation, or judicial decision
which warranted a new assessment of the duties upon these goods by
the defendant at Boston.
See Spring v. Russell, 1 Lowell
258.
But this suit of the importers against him clearly comes within
section 3011 of the Revised Statutes, as amended by the act of
February 27, 1877, c. 69, which provides that
"any person who shall have made payment, under protest, and in
order to obtain possession of merchandise imported for him, to any
collector, or person acting as collector, of any money as duties,
when such amount of duties was not, or was not wholly, authorized
by law"
may maintain an action "to ascertain the validity of such demand
and payment of duties, and to recover back any excess so paid," but
that "no recovery shall be allowed in such action unless a protest
and appeal shall have been taken as prescribed in section
2931.�
19 Stat. 247.
By section 2931, here referred to, "the decision of the
collector of customs at the port of importation and entry, as to
the rate and amount of duties to be paid" on merchandise, and the
dutiable costs and charges thereon, "shall be final and conclusive
against all persons interested therein" unless the importer
"shall, within ten days after the ascertainment and liquidation
of the duties by the proper officers of the customs, as well in
cases of merchandise entered in bond as for consumption, give
notice in writing to the collector on each entry, if dissatisfied
with his decision, setting forth therein, distinctly and
specifically, the grounds of his objection thereto, and shall,
within thirty days after the date of such ascertainment and
liquidation, appeal therefrom to the Secretary of the
Treasury."
By virtue of this section, Eastport being "the port of
importation and entry" of these goods, the decision of the
collector at that port as to the rate and amount of duties to
be
Page 152 U. S. 633
paid was "the ascertainment and liquidation of the duties by the
proper officers of the customs," and the plaintiffs, not having
given notice in writing of their objection to that decision within
ten days thereafter, cannot maintain an action to recover back the
whole or any part of the duties paid.
This conclusion, which appears to be required by the terms of
the statutes, is the only one consistent with the decision of this
Court in
Merritt v. Cameron, 137 U.
S. 542.
It was suggested in the brief in behalf of the importers
"that the collector had no jurisdiction or power to assess a
duty upon the coverings; the liquidation was void, just as if the
collector undertook to assess a duty upon domestic goods; the
appraisement was void, and in such a case, section 2931 of the
Revised Statutes does not apply, and no protest is necessary,
because there has been no valid liquidation."
In support of this suggestion were cited
Oberteuffer v.
Robertson, 116 U. S. 499;
Badger v. Cusimano, 130 U. S. 39;
Robertson v. Frank Brothers Co., 132 U. S.
17,
132 U. S. 24;
United States v. Thurber, 28 F. 56.
But
United States v. Thurber was an action by the
United States to recover duties, and not an action against the
collector to recover them back. In
Badger v. Cusimano and
in
Robertson v. Frank Brothers Co., protests had been made
in due form. In
Oberteuffer v. Robertson, it was
distinctly recognized that the proper remedy of the importer was by
protest and appeal, and the statutes, as has already been seen,
make such protest and appeal essential prerequisites to recovery in
an action brought to ascertain the validity of the demand and
payment of duties, and to recover back any excess so paid.
See also Lawrence v.
Caswell, 13 How. 488,
54 U. S. 496;
Nichols v. United
States, 7 Wall. 122;
Arnson v. Murphy,
109 U. S. 238,
115 U. S. 115 U.S.
579.
Judgment reversed, and case remanded to the circuit court,
with directions to render judgment upon the agreed statement of
facts for the defendant.
