US SUPREME COURT DECISIONS

In 1888, when the goods were imported to recover back the duties paid upon which this action was brought, a right of action accrued to an importer if he paid the duties complained of in order to get possession of his merchandise, and if he made his protest in the form required within ten days after the ascertainment and liquidation of the duties.

In October, 1888, Joseph Birtwell brought an action in the Circuit Court of the United States for the District of Massachusetts against Leverett Saltonstall, collector of the customs for the revenue district of Boston, to recover excess of duties paid under protest on importations. The trial resulted in a judgment for Birtwell, which was brought on error to this Court, where the same was reversed, and the case was returned to the circuit court for a new trial. 150 U. S. 150 U.S. 417.

In June, 1894, the case was again called for trial in the circuit court, and again resulted in a judgment for Birtwell. The case then went by writ of error to the United States Circuit Court of Appeals for the First Circuit, which court affirmed the judgment of the circuit court.

In April, 1895, the cause was removed into the Supreme Court by virtue of a writ of certiorari. The return to the writ set forth a stipulation between the counsel for the respective parties that the certified copy of the record of the cause in the Circuit Court of Appeals for the First Circuit, on file in the Supreme Court, should be treated as the return to the writ. That record discloses that at the trial in the circuit court the following proceedings took place:

"It is hereby agreed that trial by jury may be waived in the above-entitled case, and that the same may be tried and determined by the court without the intervention of a jury, as

Page 164 U. S. 55

provided in §§ 649 and 700 of the Revised Statutes of the United States."

"J. P. Tucker"

"Attorney for Plaintiff"

"Sherman Hoar"

"Attorney for Defendant and United States Attorney"

"Issue being joined, this cause came on to be heard by the court, the Honorable Le Baron B. Colt, Circuit Judge, sitting."

"On October 2, 1894, at the time of the hearing, the following admission on the part of the defendant is filed:"

" It is hereby admitted that the 432 pieces of iron and the four pieces of iron -- the proper classification of which for duty under the tariff Act of March 3, 1883, is in question in the above-entitled case -- are for the purposes of this case, and for this case alone, 'manufactures not specially enumerated or provided for in' said 'act, composed wholly of iron,' within the meaning of Schedule C (paragraph 216, Treasury Compilation) of said act, and are subject to duty under said paragraph at the rate of forty-five percentum ad valorem."

" This admission as to the classification and nature of said pieces of iron is made to apply to this case, and to this case alone, and the United States and the defendant are not to be estopped or prejudiced thereby in any other case whatsoever."

"Sherman Hoar"

"United States Attorney"

"At the same time the following motion for finding is filed by defendant:"

" The defendant moves the court to rule that, on all the evidence in this case, including the written admission of the defendant now on file in said case, the plaintiff has failed to prove his case inasmuch as he has failed to show that he paid to the defendant under protest, and for the purpose of obtaining his merchandise, according to the provisions of law in

Page 164 U. S. 56

force at the time of his importation, the duties he now seeks to recover."

"And said defendant moves the court to rule that, on all the evidence in this case, including the aforesaid admission of the defendant, the plaintiff has failed to prove his case inasmuch as be has failed to show that he complied with the provisions of law relative to protest in force at the time of his said importation."

"And said defendant moves the court to rule that, on all the evidence in this case, including the aforesaid admission of the defendant, the plaintiff has failed to prove his case."

"And the defendant moves also that the court find generally for him."

"Sherman Hoar"

"United States Attorney"

"Said motion is thereupon overruled by the court, and judgment ordered to be entered for the plaintiff."

"On the thirteenth day of October the following findings of fact are filed by the court:"

" The court finds the following facts:"

" 1. That on February 27, 1888, the plaintiff Joseph Birtwell imported, ex steamship Jan Breydel, from a foreign country into the port of Boston, and entered at the customhouse at said port, certain iron, described in the entry as '432 pieces in manufactures of iron for the third floor of the Boston courthouse,' drilled and fitted complete, as required by plan, and painted."

" 2. That on the fourteenth day of March, 1888, the said plaintiff imported, ex steamship Petre De Connick, from a foreign country into port of Boston, and entered at the customhouse in said Boston, certain iron, described in the entry as '4 riveted girders in iron, complete framing of third floor of Boston courthouse.'"

" 3. That the defendant, collector of said port of Boston, estimated the duties on both of said importations under the provision of Schedule C of the Tariff Act of March 3, 1883, which reads as follows: 'Iron or steel beams, girders, joists,

Page 164 U. S. 57

angles, channels, car-truck channels, TT, columns and posts, or parts or sections of columns and posts, deck and bulb beams, and building forms, together with all other structural shapes of iron or steel, one and one-fourth of one cent per pound.'"

" 4. That on February 29, 1888, subsequently to said estimation of duties, for the purpose of obtaining said 432 pieces of iron, the plaintiff paid duties thereon at the rate exacted by the defendant, amounting to the sum of $2,889.29."

" 5. That on March 14, 1888, subsequently to said estimation of duties, for the purpose of obtaining said four pieces of iron, the plaintiff paid duties thereon at the rate exacted by the defendant, amounting to the sum of $166.75."

" 6. That the plaintiff actually obtained said 432 pieces of iron and said four pieces of iron at the time when he paid the estimated duties thereon, respectively."

" 7. That on the fourth day of April, 1888, the defendant collector liquidated the duties on said 432 pieces of iron at the same rate and under the same provisions of law at which he had estimated said duties, and on the tenth day of April, 1888, said collector liquidated the duties on said four pieces of iron at the same rate, and under the same provisions of law at which he had estimated said duties."

" 8. That on the fourth day of April, 1888, the plaintiff filed with the defendant collector a protest in writing, setting forth distinctly and specifically the grounds of his objection to the rate of duty at which the duties on said 432 pieces of iron had been liquidated by the defendant collector, and on the tenth day of April, 1888, the plaintiff filed with the defendant collector a protest in writing, setting forth distinctly and specifically the grounds of his objection to the rate of duty assessed by the collector upon said four pieces of iron, and in each of said protests the plaintiff claimed that said 432 pieces of iron and said four pieces of iron, respectively, were dutiable under that portion of Schedule C of the Tariff Act of 1883, which is in the words following: 'Manufactures, articles or wares not specially enumerated or provided for in this act, composed wholly or in part of iron, steel, copper,

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lead, nickel, pewter, tin, zinc, gold, silver, platinum, or any other metal, and whether partly or wholly manufactured, forty-five percent ad valorem;' and these protests were the only written protests filed by the plaintiff with the defendant in this case."

" 9. The plaintiff took an appeal from the decision of the defendant collector on both the said importations to the Secretary of the Treasury within due time, and, the Secretary of the Treasury having sustained the defendant collector in both cases, the defendant brought this suit in due time, and filed with the attorney of the defendant a bill of particulars in compliance with the requirements of section 3012 of the Revised Statutes of the United States."

" 10. I find as a fact that, in connection with his testimony as to making entries of said importations, the plaintiff testified, 'I deposited what they demanded under protest.'"

" 11. On the question of the nature and dutiable character of said 432 pieces of iron and said four riveted girders of iron, there being on record in said case an admission of the defendant in the following language:"

" 'It is hereby admitted that the 432 pieces of iron and the four pieces of iron-, he proper classification of which for duty under the tariff Act of March 3, 1883, is in question in the above-entitled case, are for the purposes of this case, and for this case alone, 'manufactures not specially enumerated or provided for in' said 'act, composed wholly of iron,' within the meaning of paragraph 216 of said act, and are subject to duty under said paragraph at the rate of forty-five percentum ad valorem.'"

" 'This admission as to the classification and nature of said pieces of iron is made to apply to this case, and to this case alone, and the United States and the defendant are not to be estopped or prejudiced thereby in any other case whatsoever.' I find that said 432 pieces of iron and said four pieces of iron were dutiable at the rate of forty-five percentum ad valorem, as claimed by the plaintiff."

" 12. The value of said 432 pieces of iron was $2,647; the value of said four pieces of iron was $216, and the excess of

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duties paid over duties due is, on said 432 pieces of iron, $1,698.14, and on said four pieces of iron, $69.55."

" 13. The court finds that the plaintiff is entitled to recover the sum of $1,767.69 and interest from the date of the writ, and costs."

"Le Baron B. Colt"

"Circuit Judge"

"On the same day, the following bill of exceptions is allowed and ordered to be filed:"

" This was an action to recover the amount of certain duties alleged to have been illegally exacted of the plaintiff by the defendant collector of the port of Boston upon certain pieces of iron imported by the plaintiff into said port in the year 1888. The pleadings in the case are hereby referred to and made a part of this bill of exceptions. The parties, by their attorneys of record, filed with the clerk a stipulation in writing waiving a jury. This case came on to be heard before the Honorable Le Baron B. Colt, Circuit Judge, at the May term, 1894."

" The court made thirteen special findings of fact, which are hereby referred to, and made a part of this bill of exceptions."

" Joseph Birtwell, the first witness called by the plaintiff, testified that on February 27, 1888, he imported from Antwerp, by the steamship Jan Breydel, into the port of Boston, and entered at the customhouse at said port, 432 pieces of manufactures of iron, and that, on the 14th day of March, 1888, he imported from Antwerp, by the steamship Petre De Connick, into said port of Boston, and entered at the customhouse at said port, four riveted girders."

" By agreement of counsel, naval office copies produced by the witness Birtwell of the entries of said two lots of iron, and triplicate copies of the consular invoices thereof offered by him in evidence, were admitted in lieu of the originals, or collector's copies."

" The witness Birtwell then further testified that on the date of importation and entry, in the case of each of said two

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lots of iron, the defendant collector estimated the duties thereon at one and one-quarter cents per pound, and the third finding of fact of said circuit court shows that said estimation was under that provision of Schedule C of the tariff Act of March 3, 1883, which reads as follows: 'Iron or steel beams, girders, joists, angles, channels, car-truck channels, TT, columns and posts, or parts or sections of columns and posts, deck and bulb beams, and building forms, together with all other structural shapes of iron or steel, one and one-fourth of one cent per pound.' He further testified that on February 29, 1888, for the purpose of obtaining said 432 pieces of iron, he paid the duties estimated thereon by the defendant collector, amounting to the sum of $2,889.29, and that on March 14, 1888, for the purpose of obtaining said four riveted girders, he paid the duties estimated thereon by the defendant, amounting to the sum of $166.75, and that he actually obtained said 432 pieces of iron and said four riveted girders at the times when he paid the estimated duties thereon, respectively."

" From one of the entries referred to above, offered by the plaintiff and received in evidence, it appeared that the defendant collector liquidated the duties on said 432 pieces of iron on the fourth day of April, 1888, at the same rate and under the same provisions of law at which he had estimated said duties; and, from the seventh finding of fact of said circuit court, it appears that, on the tenth day of April, 1888, the defendant collector liquidated the duties on said four riveted girders at the same rate and under the same provisions of law at which he had estimated said duties."

" The examination of the witness Birtwell was then suspended, and the plaintiff called Miss Clara Kenrick. She testified that she had for many years been the protest clerk in the customhouse at the port of Boston, and was said clerk during the year 1888, and that it was her duty to receive and care for protests filed by importers against the rate of duty exacted by the collector of said port upon their importations of merchandise."

" The entries of the plaintiff of the two lots of merchandise

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in question, referred to above, were then shown to Miss Kenrick, and identified by her as naval office copies of the entries made by the plaintiff of the two lots of merchandise in question, and the stamps thereon, showing the dates of payment of the estimated duties and of the liquidation, were explained by the witness, corroborating the witness Birtwell, to mean what has been stated above."

" The witness was then asked. "What is understood by the customhouse clerks as the liquidation of an entry?" She testified: "Well, the duties are figured on the entry, and the entry goes to the naval office for examination, then comes back to another clerk, who puts the stamp on, Liquidated,' and completes the liquidation.""

" The papers were then handed to the witness by the attorney for the plaintiff, and she was asked if there was anything upon them to show when they were filed at the customhouse. She testified that there were stamps upon each of said papers indicating the dates, respectively at which they were received at the customhouse. She further testified that the date upon one of the papers, which related to the plaintiff's importation of said 432 pieces of iron by the steamship Jan Breydel, was April 4, 1888, and that the date upon the other paper, which related to the plaintiff's importation of said four riveted girders by the steamship Petre De Connick, was April 10, 1888, and she testified that said papers were the protests in writing filed by the plaintiff with the defendant collector against the rate of duty exacted by him upon said importations."

" She was then asked the following question by the counsel for the plaintiff: 'What were your duties in relation to protests filed at that time, so far as the time within which and when they should be filed was concerned?' The question was objected to by the counsel for the defendant, but the court overruled the objection and permitted the witness to answer, and the defendant then and there duly excepted."

" The answer of the witness to said question was as follows: 'The instructions of the department as to when protests should be received have varied from time to time. At some times, we have been instructed to receive them at any time from the

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date when the entry was made up to the end of ten days after liquidation. At other times, we have been instructed to receive them only within ten days after liquidation.'"

" The witness was then asked by the counsel for the plaintiff the following question: 'Can you, from your memory, tell which of those practices was in vogue at this time, in 1888?' Her reply was, 'I think the last one.' The witness then testified further that she was the clerk who received protests; that she made certain entries in a book regarding them, giving the place from which the goods were imported, the date when the protests were received, the name of the importer, and the subject of the protest and appeal; the name of the vessel, the date of entry, whether the entry is duty paid or bonded, the date of liquidation, and the date of filing the protest and appeal, and then it was her duty to send the protest to the deputy collector of customs; that the protests were required to be filed in duplicate, and that the original protest and appeal are sent to the deputy collector of customs, and the duplicate protest retained by the witness, and that the original protest and appeal are afterwards sent by the deputy collector to the Secretary of the Treasury at Washington; that in some cases the deputy collector of customs sent protests to the appraisers, and did not send protests to the Secretary of the Treasury unless the report of the appraisers confirmed the decision of the collector, and that the decision of the Secretary of the Treasury upon protests and appeals is sent to the collector of customs from whom they have been received."

" The witness then identified two papers as the appeals to the Secretary of the Treasury filed by the plaintiff with the defendant collector in the matter of the decision of the defendant as to the rate of duty chargeable upon defendant's said two importations."

" Up to this point, the papers containing the protests and appeals referred to above had not been formally offered in evidence by the plaintiff. Counsel for the plaintiff then formally offered in evidence the two papers identified by the witnesses Birtwell and Kenrick as the protest filed by the plaintiff with the defendant collector against the rate of duty

Page 164 U. S. 63

exacted by the defendant upon the plaintiff's exacted by the defendant upon the plaintiff's said two importations of iron."

" The papers were objected to by the attorney for the defendant on the ground that from the testimony in the case, and from the dates stamped upon said papers, it appeared that they had been filed by the plaintiff with the defendant collector too late to be good and valid protests under the law in force at the time of said importations, but the court overruled the objection and admitted the papers, whereupon the defendant them and there duly excepted."

" It is not deemed necessary to set out said two papers verbatim, inasmuch as the only objection to their admission was the objection just stated, it being conceded by the defendant that said papers complied with the provisions of law regarding protests in all respects, except the time at which they were filed with said defendant collector. Miss Kenrick then gave further testimony, which, however, is not material for the purpose of this bill of exceptions."

" At this point the defendant placed on file an admission in writing in the words following:"

" "It is hereby admitted that the 432 pieces of iron and the four pieces of iron -- the proper classification of which for duty under the tariff Act of March 3, 1883, is in question in the above-entitled case -- are for the purposes of this case, and for this case alone, manufactures not specially enumerated or provided for in' said `act, composed wholly of iron' within the meaning of Schedule C (paragraph 216, Treasury Compilation) of said act, and are subject to duty under said paragraph at the rate of forty-five percentum ad valorem.""

" 'This admission as to the classification and nature of said pieces of iron is made to apply to this case, and to this case alone, and the United States and the defendant are not to be estopped or prejudiced thereby in any other case whatsoever.'"

" The four pieces of iron referred to in said admission are what are referred to herein as four riveted girders."

" On cross-examination, the witness Kenrick testified that she had no personal knowledge whatever in regard to the

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practice at any time at other ports than the port of Boston in the matter of the time of receiving protests."

" The examination of the witness Birtwell was then resumed, but his further testimony contained nothing material for the purpose of this bill of exceptions."

" Upon the conclusion of the plaintiff's evidence, and after the plaintiff had rested, the counsel for the defendant stated that the had no evidence to offer on behalf of the defendant, and thereupon rested."

" The counsel for the defendant then filed a motion in writing in the words following:"

" 'The defendant moves the court to rule that, on all the evidence in this case, including the written admission of the defendant now on file in said case, the plaintiff has failed to prove his case, inasmuch as he has failed to show that he paid to the defendant under protest, and for the purpose of obtaining his merchandise according to the provisions of law in force at the time of his importation, the duties he now seeks to recover.'"

" 'And said defendant moves the court to rule that, on all the evidence in this case, including the aforesaid admission of the defendant, the plaintiff has failed to prove his case, inasmuch as he has failed to show that he complied with the provisions of law relative to protest in force at the time of his said importations.'"

" 'And said defendant moves the court to rule that, on all the evidence in this case, including the aforesaid admission of the defendant, the plaintiff has failed to prove his case.'"

" 'And the defendant moves also that the court find generally for him.'"

" The court overruled the motion, and the defendant duly excepted."

" This bill of exceptions having been tendered for signature and allowance to the judge presiding at said cause at the same term of court at which said special findings were rendered, and within the time allowed by the court therefor, the same is now hereby signed and allowed as a further statement of

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the exceptions taken and reserved by the said defendant at the said trial, and is hereby made a part of the record in the said cause."

" The within bill of exceptions is allowed this twelfth day of October, 1894."

"Le Baron B. Colt"

"Circuit Judge"

"Also on the same day the following judgment is entered:"

" It is thereupon considered by the court, to-wit, October 13, 1894, the Honorable Le Baron B. Colt, Circuit Judge, sitting, that the said joseph Birtwell, plaintiff, recover of the said Leverett Saltonstall, defendant, the sum of $2,433.40 damages, and $156.50 costs."