et al.tJ.MAGONE, Collector of Customs.
(Circuit 0000, S. D. New York.
In, computing thetinl'ewithinwhich a protest required by Rev. St. U. 8. § 2931, must be served upon the collector, if the tenth day falls on Sunday, that day· calmot be excluded, and service of such protest on the Monday following is compliance with the requirements of said section.
At ,Law. The plaintiffs imported and entered at the port of New York six several importations of women'R dress goods between March 26, 1889, and February 6, 1890. The defendan,t, as collector of customs at the port of New York, levied and collected duties thereon at 9 cents per square yard, and 40 per cent. ad valorem, under Schedule K of the tariff act of March 3, 1883, (Tariff Ind. par.365.) The plaintiffs protested, claiming that such dress goods were composed in part of wool, and were dutiable under the same schedule at 5 cents per square yard and 35 per cent. ad valorem. In making up a statement for refund, the collector rejected the entry per Normandie .of February 6, 1889, covering the amount of $628.74, for the reason that the protest as to such entry had not been served within 10 daYi?; after the liquidatio11 thereof, as required by section 2931, Rev. St. U,S. The entry was liquidated Febmary 28, 1889. The importMarch ers served their protest upon the collector on March 11, 10, 1&89, was a Sunday. .',rhe contention of the plaintiffs was that, where thetcllth day expired on a Sunday, they had the succeeding Mond!lY in which to serve their protest. H(JlJ)(J,rd Vansinderen, for plaintiffs.. Edward MitcheU, U. S. Atty., and Henry C. Platt; Asst. U. S. Atty., for collector.
LAOOMBE, Circuit Judge, (orally.) Section 2931 of the United States Revised Statutes provides that, if the owner, importer, consignee, or be dissatisfied with the collector's decisagent ofjmported ion as to the rate andllmount of duties to be paid thereon, he shall, within 10 days after the ascertainment and liquidation of the duties by the proper officers of the customs, give notice in writing to the collector on each entry, setting forth therein, distinctly und specifically, the grounds, of his objection thereto. The statute fixes the time within which the importer must serve his protest. There is no statute extending this time, or providing ·that, if the last day.within which the importer is allowed to serve his protest shall fall upon a Sunday, service thereof may be made upon the following Monday. Congress has undertaken to regulate the wholf:),subject in section 2931, and its legislation is necessarily exclusive. Arnson v. j}}wrphy, 109 U. S. 238, 3 Sup. Ct. Rep. 184. The weight of authority upon this question seems to be that in computing the time within which an act required by any statute must be done, if the last day falls on a Sunday, it cannot be excluded,
IN RE AUSTIN.
and the act done on the Monday following, unless there is some statute providing that the Sunday should be excluded from the computation. Dorsey v. Pike, 46 Hun, 112; Pear-point v. Graham, 4 Wash. C, C. 232, 241; In re York, 4 N. B. R. 479, 482; Davies v. Miller, 130 U. S. 284, 287, 9 Sup. Ct. Rep. 560. In the law regulating bankruptcy proceedings, congress has provided (Rev. St. U. S. § 5013) that in the computation of time limited by such laws, or by orders of court thereunder, the last day shall be excluded when such day falls on Sunday, Christmas day, etc. If they had intended a similar rule to apply to the filing of protest under section 2931, they would have said so, and, in the absence of such provision of statute, the usual rule must apply. The unreported decision in the first circuit, cited on the argument by plaintiffs' counsel, does not apply. There the collector at the port of Boston closed his office on the 17th of June, which was not a dies non by federal law, and it was hf'ld that a filing on the ensuing day was timely. In that case he had arbitrarily made the filing of the protest impossible on a day when congress assumed it could be filed. But congress certainly did not suppose it could be filed on a Sunday, and, not having extended the time beyond such day, the court will not dOSG. n appears also that the practice of the treasury department has been uniform in rejecting all protests served on the eleventh day after the liquidation of the duties, where the tenth day has fallen on a Sunday. Syn. Tr. Dec. 3139. The action of the collector in rejecting this protest by the Normandie of February 6, 1889, must therefore be sustained.
(Circuit Court, S. D. New YO'I'k.
CUSTOMS DUTIES-SWEET£:-iED CHOCOLATE.
as "cocoa * * * manufactured," and not under paragraph 318 as "chocolate, "it being specially excepted in the latter paragraph.
SAME-PROTEST BY IMPOHTERS.
Importers are confined to such grounds of objection to the,payment of duties as are distinctly and specifically set forth in their protest or nctice in wl'iting to the collector, under section 14 of the act of June 10, 1890, entitfed" An act to simplify the laws in r.elation to the collection of the revenues. "
At Law. The firm of Austin, Nichols & Co. imported and entered at the port of New York on November 3,1890, certain "sweetened chocolate," upon which the collector levied and assessed duty at the rate of 50 per cent. ad valorem, as "chocolate confectionery, ",or assimilating thereto, under the provisions of paragraph 239 and seotion 5 of the tariff act of October 1, 1890. The importers protested, claiming: (1) That the merchandise was dutiable under paragraph 318, which reads as follows: