On December 28, 1883, a collector having exacted a duty on cabbage seeds and beet seeds as garden seeds, the Department (30 Int. Rev. Rec. 24), referring to its decision of November 27, 1883, held that the seeds were free, and directed the duty to be refunded.
On March 8, 1884, the Department (30 Int. Rev. Rec. 77), held that lettuce seeds and spin- ach seeds were dutiable as "garden seeds;" and, on March 18, 1884 (Id. 95), it held that nastur- tium seeds, being generally planted in gardens, and producing not only flowers, but seeds or berries which, when green, are largely used for cooking purposes, and in the manufacture of sauces were dutiable as "garden seeds."
Afterwards, a collector exacted a duty of 2 per cent on certain beans, as "garden seeds." On the view that they were the seeds of the bean plant, and were intended for food or for planting or sowing, the Department, on March 28, 1884 (30 Int. Rev. Rec. 109), reconsidered to some extent its rulings of November 27, 1883. It held that the beans, being edible, were not within the specific provisions as to beans, which made beans not edible free of duty; and that they were not vegetables, but were the seeds of a vegetable. On the question of whether they were "garden seeds," it said: "In common speech, 'garden seeds' are seeds used either for planting or sowing in the gar- dens adjacent to dwelling-houses, small spaces of land, and in the large spaces of land called market gardens, lying about cities or other large places of numerous and condensed popu- lation. The common notion of garden seeds is this, that they are those from which are raised, in the growing season of the year, the vegetable products which, before complete maturity, are used upon the table as part of the customary food of mankind, and in distinction from those seeds which, sowed or planted on a broader scale in the fields, produce the vegetables which are stored for winter use as food. Yet it is to be taken note of, that, by extended field culture, there is produced much of the seed which finds its way to market and to sale as 'garden seeds,' in the common notion thereof above stated. It is not easy, therefore, to say of any importation, on general principles, that it is of garden seeds or of field seeds, nor to frame a rule, on gen- eral principles and general knowledge, which will always exactly apply. We are constrained, therefore, to see if we can, by interpretation, get at the purpose of Congress, and if it did not intend to charge the phrase 'garden seeds,' in paragraph 465, with an arbitrary meaning. It has made an exception of the seed of one vege- table from the general expression 'garden seeds.' It must have been thought by Congress that there was need of that exception, or that else the seed excepted would properly and necessarily be treated by the administrative officers of the Government as 'garden seeds.' It follows, then, that Congress thought that seeds like the seed of the sugar beet were garden seeds.' We have, then, an idea of what kind of seeds Congress meant when it spoke the phrase 'garden seeds.' Now, the sugar beet is not a plant or a vegetable exclusively, nor mostly, of the growth of gardens. It is, on the con- trary, mostly the growth of the field or of the market garden. If the sugar beet is, in the view of Congress, a garden plant or vegetable,
as well as, or in contrast with, a field plant, and its seed garden seed as well as, or in con- trast with, field seed, surely the bean is, in legislative contemplation, a garden plant or vegetable, and the bean of the market, which is the seed of the bean plant, is a garden seed, as well as, or rather than, a field seed. We know that, in fact, the bean, as a seed of the bean plant or vegetable, is planted in the garden, and is largely planted in the field also; in the former case, generally, to be eaten green in the pod, as a green esculent, though sometimes, as with lima beans, in the form of the seed of the plant; in the latter case, for the production of seed for subsequent planting, and for food in the form of the matured seed. It is to be noticed, too, that elsewhere in the Act, when 'garden seeds' are mentioned, they are so in contrast or opposition to seeds which are not of the character of beans or other seeds used for sowing or planting both in field and garden. As, in paragraph 94, where the phrase is 'seeds (aromatic, not garden seeds),' and 'seeds of morbid growth;' and so, in paragraph 636, the seeds put in the free list are 'seeds aromatic, and seeds of morbid growth.' As the beans are garden seeds in some of the uses of them, and as it is to be got, by interpretation, that Congress meant to include such seeds as that of the bean in the phrase 'garden seeds,' in paragraph 465, the conclusion must be that the article under consideration is properly classified under paragraph 465. This ruling applies equally to pease, and the duty of 20 per cent ad valorem will, therefore, be exacted on both, on entries of such merchandise."
On November 8, 1884, the Department (30 Int. Rev. Rec. 357), ruled that beet, carrot, cabbage, onion and turnip seeds were dutiable at 20 per cent ad valorem, as "garden seeds."
This reversed the prior rulings of November 27, 1883, and, under the new ruling, a duty of 20 per cent was imposed by William Livings ton, Jr., Collector of Customs at Detroit, Michigan, on importations, by D. M. Ferry & Co., a Corporation, of mangel-wurzel, turnip, beet, and cabbage seeds, entered at the custom house at Detroit, in December, 1884. The importer, claiming that all the seeds were exempt from duty, brought a suit, in the Circuit Court of the United States for the Eastern District of Michigan, against Livingston, to recover $560.40, which had been paid as the duty. The case was tried before the court without a jury; and on special findings of fact, the court held that the mangel-wurzel and turnip seeds, the duty exacted on which amounted to $332.60, were exempt from duty; and that the cabbage and beet seeds, the duty exacted on which amounted to 227.80, were subject to that duty. A judgment having been entered against Liv ingston for $332, he and Ferry & Co. have each brought a writ of error.
The facts found by the court, so far as they need be recited, were these: "That beets except sugar beets, are almost altogether raised from seeds of the kind in the declaration mentioned, in gardens, for the table, although they are also raised in fields, for cattle, to a limited extent. That mangel-wurzels are cultivated wholly in fields, from seeds of the kind in the declaration mentioned, and not in gardens; and they are not used as food for man, but for cattle. That
trips are largely raised from seed of the kind the declaration mentioned, in fields, for catLe, and comparatively small quantities are also red in gardens, for the table, the proportion at least twenty to one. Most of those resumed on the table are raised in fields. That cabbages are cultivated from seeds of the in the declaration mentioned, in fields well as in gardens. They are used to a Falextent as food for cattle, but to a much er extent as food for man. That turnip ds, beet seeds and cabbage seeds generally and have been catalogued, by prominent men in America, England and Germany, as garden and agricultural seeds." On ee facta, the circuit court found, as conclus of law, (1) that the turnip and mangelarzel seeds were not garden seeds, and were bject to any duty; (2) that the cabbage best seeds were garden seeds, and subject the duty exacted.
The contention, on the part of Ferry & Co. a that, if the seeds which are cultivated in the den are also cultivated in the field, they are garden seeds," within the statute, but, befed seeds, are free, as being seeds not ot se provided for, that is, not provided for as aden seeds," and that, otherwise, seeds
any finding that the seed in question belongs to a variety which is not intended to raise cab- bages to be consumed by man, it must be re- garded as a "garden seed."
We are unable to concur in the view that the free list in the Act of 1883 is to be read as in- cluding seeds of all kinds, with the exception of medicinal seeds which are not specially enumerated or provided for in the Act. The proper reading is that it includes seeds of all kinds (other than medicinal seeds) which are not specially enumerated or provided for in the Act. Garden seeds are specially provided for.
As this case rests for decision on the facts found, it is not possible for this court to lay down any general rule which will apply to cases differing in their facts from this case.
The judgment of the Circuit Court is affirmed, the plaintiff in error in each case to pay the clerk's costs taxed therein, and the plaintiff in error in No. 875 to recover ɔne half of the ex- pense of printing the record, paid by it. True oby. Test:
mes H. Mu&enney, Clork, Sup. Court, U. 8.
Tuch are cultivated in both garden and field BERNHARD ARNSON ET AL., Piffs. in Err., [579]
d at the same time be subject to duty and
free In this view, it is claimed by Ferry & THOMAS MURPHY. Late Collector of the
(See S. C., Reporter's ed., 579-586.)
Duties-illegal exaction of remedy of importer -sections 2931 and 3011 R. S.-limitation of actions evidence.
a that, as the circuit court has found that and cabbage seeds are cultivated in fields as gardens, they are exempt from duty. we are unable to concur in this view. În perseded title 33 of the Revised Statutes, of 20 per cent was imposed on flower "garden seeds, and all other seeds for tral and horticultural purposes, not provided for," while the free list, in- only seeds "not otherwise provided In the Act of 1883, the duty of 20 per "garden seeds, except seed of the eet," was left, while the exemption from was enacted to cover "seeds of all kinds, olicinal seeds not specially enumerated nded for in this Act." From this change tute, it cannot be inferred that seeds are used for agricultural purposes are mpt from duty because of such use, are also used for garden purposes. The 4. It seems that the statute does not require any would rather be that, if they are used communication of the decisions on the appeals to rrarden purposes, they are subject to evidence by the defendant although not thus com- the claimant; and that they may be introduced in duty, although they are also used municated. [No. 887.] Argued Nov. 19, 1885.
1. Under sections 2931 and 3011, R. S., the importer must show, in order to recover duties alleged to have been illegally exacted, that he has fully com- plied with the statutory conditions which attach to the statutory action provided for.
are of opinion that the conclusion by the circuit court, based on the , was correct. Beets, other than esta, being almost altogether raised in hugh raised to a limited extent in other seeds are "garden seeds." Mangelng cultivated wholly in fields, and es, their seeds are not "garden Tarnips being largely raised in fields,
vely small quantities being also rariens, their seeds are not "garden A to the cabbage seeds, it is found from the seeds in question are in both gardens and fields; and, while which is the larger in proportion, that cabbages are used to a small fod for cattle, but to a much larger od for man; and, in the absence of
2. The conditions imposed by statute cannot, any of them, be regarded as matters a failure to comply with which must be pleaded by the defendant as a statute of limitations.
3. The plaintiffs having failed to show not only due protests and appeals, but that the action was brought within the time required by the statute, it for the defendant. was proper for the court below to direct a verdict
IN ERROR to the Circuit Court of the United York.
States for the Southern District of New
The history and facts of the case appear in the opinion of the court. See also the report of the opinion of this court on a former writ of error, Bk. 27, 920.
Messrs. Lewis Sanders and George N. Sanders, for plaintiffs in error.
Mr. John Goode, Solicitor-Gen. for de- fendant in error.
Mr. Justice Blatchford delivered the opin- ion of the court:
This suit was commenced in May, 1879, in a State Court of New York, by Bernhard Arn-
son and Ellis Wilzinski, against Thomas Mur-ury shall have been first had on such appeal, phy, and removed into the Circuit Court of the unless the decision of the Secretary shall be de- United States for the Southern District of New layed more than ninety days from the date of York, to recover moneys paid to the defendant, such appeal in case of an entry at any port east as Collector of the Port of New York, between of the Rocky Mountains, or more than five April 25, 1871, and November 30, 1871, as months in case of an entry west of those moun- duties on several importations of nitro-benzole. tains. Section 2931 was in force when this The defendant set up, in his answer, that the suit was brought. moneys received were for lawful duties, and also pleaded the six years' limitation of the New York Statute. The suit was tried, result- ing in a verdict for the defendant, by direction of the court, followed by a judgment, to review which the plaintiff sued out a writ of error. which came before this court at October Term, 1883, and the decision on which is reported in 109 U. S. 238 [Bk. 27, L. ed. 920]. It is there stated that there had been due protests and ap- peals to the Secretary of the Treasury, but that no decision had been rendered by him thereon prior to the commencement of this action, and that it was not brought until after ninety days had elapsed from the date of the latest appeal, and not until after the lapse of more than six years from the expiration of that period. The circuit court having sustained the bar by the New York Statute, this court reversed that ruling.
The cause of action arose while section 14 of the Act of June 30, 1864, chap. 171 (13 Stat. at L. 214), now embodied in section 2931 of the Revised Statutes, was in force, providing as follows: "On the entry of any vessel, or of any goods, wares, or merchandise, the decision of the collector of customs at the port of im- portation and entry, as to the rate and amount of duties to be paid on the tonnage of such vessel, or on such goods, wares, or merchan- dise, and the dutiable cost and charges thereon, shall be final and conclusive against all persons interested therein, unless the owner, master, commander, or consignee of such vessel, in the case of duties levied on tonnage, or the owner, importer, consignee, or agent of the merchan- dise, in the case of duties levied on goods, wares, or merchandise, or the costs and charges there- on, shall, within ten days after the ascertain- ment and liquidation of the duties by the proper officers of the customs, as well in cases of merchandise entered in bond, as for con- sumption, 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 ascer- tainment and liquidation, appeal therefrom to the Secretary of the Treasury, whose decision on such appeal shall be final and conclusive; and such vessel, goods, wares, or merchandise, or costs and charges, shall be liable to duty ac- cordingly, any Act of Congress to the contrary notwithstanding, unless suit shall be brought within ninety days after the decision of the Secretary of the Treasury on such appeal for any duties which shall have been paid before the date of such decision on such vessel, or on such goods, wares, or merchandise, or costs or charges, or within ninety days after the pay- ment of duties paid after the decision of the Secretary. And no suit shall be maintained in any court for the recovery of any duties alleged to have been erroneously or illegally exacted, until the decision of the Secretary of the Treas-
Section 3011 of the Revised Statutes, as amended by section 1 of the Act of February 27, 1877, chap. 69 (19 Stat. at L. 247), was also in force when this suit was brought, reading as follows: "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 in the nature of an action at law, which shall be triable by jury, to ascertain the validity of such demand and payment of duties, and to recover back any excess so paid. But no recovery shall be allowed in such action unless a protest and appeal shall have been taken as prescribed in section 2931."
In view of these provisions, it was held by this court, in this case, that a suit against the collector was barred unless brought within ninety days after an adverse decision by the Secretary of the Treasury on an appeal; and that, while a suit might be brought after the expiration of ninety days from the appeal, ir case there had not been a decision on the ap peal, the claimant was not obliged to bring suit until after such decision had been made It was further held, that the effect of the legisla tion cited had been to convert the prior common law action into one based wholly on a statu tory liability, and regulated, as to all its inci dents, by express statutory provisions, and among them, "the conditions which fi: the time when the suit may begin, an prescribe the period at the end of which the right to sue shall cease;" and that th legislation of Congress on the subject wa exclusive of state laws. As, therefore, it ap peared that this suit had been brought in time under the Act of Congress, because it appeare that no decision had been made on the appeal before this suit was brought, although mor than seven years had elapsed, and the circui court had applied the New York Statute as bar, this court reversed the judgment, an awarded a new trial. That trial has been hac resulting in a verdict for the defendant b direction of the court, and a judgment a cordingly, to review which the Ilaintiffs hav brought this writ of error.
The plaintiffs proved necess y preliminar matters and due protests and appeals to th Secretary of the Treasury. The latest of th appeals was taken November 29, 1871. T plaintiffs rested their case without havin given any evidence as to whether there had had not been any decision on any of the a peals. The defendant then offered in eviden decisions made by the Secretary on the appeal one on July 12, 1871, and the rest on May 1 1872, affirming the decisions of the Collecto The evidence consisted of certified copies fro the Treasury Department, of letters of the abo dates from that department to the Collect
The conditions imposed by the statute can- not, any of them, be regarded as matters a failure to comply with which must be pleaded by the defendant as a statute of limitation. The right of action does not exist independently of the statute, but is conferred by it. There is no right of action on showing merely the payment of the money as duties, and that the payment was more than the law allowed, leaving any statute of limitation to be set up in de- fense, as in an ordinary suit. But the stat- ute sets out with declaring that the decision of the collector shall be final and conclusive against all persons interested unless certain things are done. The mere exaction of the duties is, neces- sarily, the decision of the collector; and, on this being shown in any suit, it stands as conclusive till the plaintiff shows the proper steps to avoid it. These steps include not only protest and ap- peal, but the bringing of a suit within the time prescribed. They are all successively grouped together in one section, not only in section 14 of the Act of 1864, but in section 2931 of the Revised Statutes; and the "suit" spoken of in those sections is the "action" given in section 3011 of the Revised Statutes.
of Customs at New York, which letters were | peal, although he has not heard of a decision, recorded in the department. It was conceded being thus certain that he will have brought it the plaintiffs that those letters were the de- within the time prescribed after a possible de- ons of the Secretary on the appeals in ques- cision. but the evidence was objected to by them of these grounds: (1) that the defense was not aded, it being one arising under a statute fmiration, and the object being to show that estit was not brought within ninety days after decisions on the appeals; (2) that it did not pear that the decisions had been commu- cated to the plaintiffs. The court, without ruling on the admissibility of the evi- dence held that the plaintiffs, in addition to wing due protest and appeal, must, as a condition precedent to recovery, show either the suit had been brought within ninety Cars after an adverse decision on the appeal, or there had been no such decision, and the had been brought after the expiration of ty days from the appeal. The plaintiffs ed to this ruling, and then called as a Tess one of the plaintiffs, and asked him if be had received any notice, before the suit was t, of the decisions of the Secretary on appeals. On an objection by the defendant the evidence was immaterial, it was ex- , and the plaintiffs excepted. The de- art then again offered the decisions in evi- e, and the plaintiffs objected on the nks before stated. The objection was The question involved is analogous to the Feed, the plaintiffs excepted, and the one presented in Cheatham v. United States, 93 pers were read in evidence. The court then U. S. 85 [Bk. 23, L. ed. 561], which arose under cted a verdict for the defendant, on the section 19 of the Act of July 13, 1866, chap. 184 d that, the action being a statutory one, (14 Stat. at L. 152), in regard to internal revenue paintiffs had not complied with the stat- taxes. That section provided that no suit conditions, and the plaintiffs excepted. should be maintained in any court for the re- The statute makes the decision of the col- covery of any tax, until after an appeal to the or final and conclusive as to the rate and Commissioner of Internal Revenue and his de- ent of duties, unless there is a specific pro- cision thereon, unless the suit should be brought de to the collector within ten days after within six months from the decision, provided idation, and an appeal taken to the Sec- that, if the decision should be delayed more than y of the "Treasury within thirty days after six months from the date of the appeal, the pation. The decision of the Secretary on suit might be brought within twelve months al is made final and conclusive unless from the date of the appeal. In that case is brought within ninety days after such there was an assessment of a tax, a proper ap- , in the case of duties paid before the peal, a setting aside of the assessment on ap- , or within ninety days after the pay-peal, a second assessment, less in amount, a pay- duties paid after the decision; and no ment of the second assessment, and a suit to re- be brought before a decision on the ap- cover back the money paid. But the suit was the decision is delayed r the time not brought within six months from the appeal d in the statute. taken, and there was no appeal from the sec- e are of opinion that it is incumbent upca ond assessment. The court below having in- ter to show, in order to recover, that structed the jury that the statute imposed a fly complied with the statutory condi- condition without which the plaintiffs could ch attach to the statutory action pro- not recover, and was not merely a statute He must show not only due protest of limitation, and that the plaintiffs had no , but also a decision on the appeal, and right of action, this court affirmed that ruling. r of a suit within the time limited by It was urged that the requirement of bringing after the decision, or else that there a suit within six months from the decision was o decision, and the prescribed time af- a statute of limitation, and that the time under pal has elapsed. The decision on the it could not begin to run till the cause of action Decessarily, a matter of record in the accrued, which was not till the money was Department, and, as is shown in the paid, and that time was, as to a larger part of it is communicated to the collec- the money, within six months before the suit letter to him, the letter itself being the was brought; and that the first appeal was the The letter is a matter of record in only one necessary to a right of action because house. Inquiry there or at the the modified assessment was paid under protest. Department would always elicit in- But this court, while holding that an appeal on the subject; and the importer, from the second assessment was necessary to when his appeal was taken, can alwarrant a suit, also held, the opinion of the Et himself by bringing his suit after court being delivered by Mr. Justice Miller, of the time named after the ap- that, if the appeal taken could be regarded as
Mr. A. H. Garland, Atty-Gen for defendant in error.
Mr. Justice Blatchford delivered the opinion of the court:
sufficient, the suit could not be maintained, be- cause it was not brought within six months after the decision on that appeal. The view taken was, that the government had, by stat- ute, as to both the customs and the internal revenue departments, prescribed the conditions on which it would subject itself to the judg- ments of the courts in the collection of its reve- nues; and that the prescription of a time with- in which a suit must be brought for the pur-State of New York, and removed into the Cir- pose, is a condition on which alone the gov. ernment consents to litigate the lawfulness of the original tax.
We are, therefore, of opinion that the circuit court properly held that it was incumbent on the plaintiffs, as a condition precedent to their recovery, to show not only due protests and appeals, but that the action was brought within the time required by the statute. This they failed to show, and it was proper to direct a verdict for the defendant.
This is an action brought in November, 1881, by the members of the firm of Harrison, Havemeyer & Co., against Edwin A. Merritt, Collector of the Port of New York, in a court of the
cuit Court of the United States for the Southern District of New York, to recover back duties exacted, in May and June, 1881, at the rate of 25 per cent. ad valorem, on imported merchandise, some of which was invoiced as "animal charcoal," some as "calcined bones," and some as "burnt bones." The duty was exacted on the view that the article fell under the head of "black of bone, or ivory drop black: 25 per centum ad valorem," in Schedule M of section 2504 of the Revised Statutes (p. 473, 2d ed.). The defendants contended that it fell within "The Free List" in section 2505, and was exempt from duty (p. 483, 2d ed.), as "bones, crude and not manufactured; burned; calcined; ground; or steamed." Schedule M of section 2504 (p. 474, 2d ed.) imposed a duty of 35 per centum ad valorem on "manufactures of bones, horn, ivory, or vegetable ivory;" and "The Free List," section 2505 (p. 482, 2d ed.), exempted from duty "bone dust and bone ash for manufacture of phosphates and fertilizers." At the trial, before a jury, the evidence showed that the article in question, which was black, was to be used to decolorize sugar, in the process of manufacturing it; that it was made by subjecting bones, after they were steamed and cleaned, to destructive distillation, by heat, in close vessels, until everything but the inorganic matter was expelled, and then crushing the
In regard to the point taken, that, when the defendant introduced in evidence the decisions on the appeals, he did not show that they had been communicated to the plaintiffs, although this case is disposed of on the failure of the plaintiffs to make the proof necessary to recover, it is proper to say, as the question has been argued, that we see nothing in the statute which requires that the decision on the appeal shall be communicated to the claimant by any action of the officers of the government. All that the statute requires is that the Secretary shall make the decision. It is to be made in the usual way in which decisions of the department are made. If, in any case, it should appear that, on due inquiry of the proper officers, a party had been misled to his prejudice, in regard to a decision on an appeal, a different question would be presented from any now before us. We find no error in the record and the judg-residuum, and assorting the pieces into proper ment is affirmed.
sizes; and that calcined or burned bones were prepared by subjecting them, in open vessels.
James H. McKenney, Clerk, Sup. Court, U. S. to the direct action of fire, and thus rendering
them friable, so that they became bone ash, which was not black. On these facts the court held that the article was not burned or calcined bones and free, but had been manufactured
CHARLES C. HARRISON ET AL., Plff's. in into bone-black. A refusal by the court to di
rect a verdict for the plaintiffs was excepted to, and it directed a verdict for the defendant,
EDWIN A. MERRITT, Collector of the which was also excepted to. After such ver
PORT of NEW YORK.
(See S. C., Reporter's ed., 577-579.) Duties "Bone-Black"-evidence.
1. A certain article of merchandise, used to decolorize sugar, and manufactured from bones, is held to be "bone-black," subject to a duty of 25 per centum ad valorem under section 2504 R. S. and not within the free list under section 2505 R. S.
2. Evidence to show differences in value between an imported article and similar articles, is admissible to show the character of the article in question. [No. 913.]
Submitted Nov. 18, 1885. Decided Dec. 7, 1835.
IN ERROR to the Circuit Court of the N ERROR to the Circuit Court of the United
The history and facts of the case sufficiently appear in the opinion of the court.
Messrs. Henry E. Davies and Charles C. Suydam, for plaintiffs in error.
dict and a judgment for the defendant, the plaintiffs have brought a writ of error.
We are of opinion that the article was not free, nor liable to a duty of 35 per cent, as a manufacture of bones, but that, being boneblack, it was liable, as "black of bone," to the duty imposed on it; and that it was proper to direct a verdict for the defendant.
Objection was made to the admission of evidence to show the difference in value between bone-black and crude bone; and that between bone-black and white calcined bone ash; and that between bone-black before its use by sugar refiners and after it was spent. We see no good objection to the evidence. It went to show the character of the article in question. Judgment affirmed. True copy. Test:
James H. McKenney, Clerk, Sup. Court, U. S
« ForrigeFortsett » |