BIRTWELL v. SALTONSTALL. Collector. (Circuit Court, D. MassachusettS.
CuSTOMS DUTIES-ExCESSIVE EXACTIONS-TIME OF MAKING PROTEST.
September 28, 1894.)
Rev. St. § 3011, provides that "any person who shall have made payp:!.ent under protest," in p-rder to obtain possession of goods, may maintain an llCtion 1;0 recover back any excess .paid, "but no recovery shall be allowed · .. · unless a protest and appeal sball bave been taken as provided in section 2931.'" Held, that the reference to the latter section time as ,..we.11 ,as the form.of the protest, and hence that it need ... ffiade before or at the time of the payment of the duties. but is' good if made within 10 days thereafter.
This .was an action by Joseph Birtwell against Leverett Saltonof the port of Boston, to recover duties paid under protest. . There was originally a judgment for plaintiff (39 Fed. 383), but this was reversed, on defendant's appeal, by the supreme court (150 U. S. 417, 14 Sup. Ot.169), and a new trial ordered. A new trial having been accordingly had, the opinion below was filed. JOliliab P.Tucker, for plaintiff. Hoar, U. S. Atty., and Wm. G. Thompson, Asst. U. S. AttY., for defendant. ' OOL'J,1, Oircuit Judge. The position taken by the United States a.ttorney: ,in behalf of the defendant is that where an importer, in .to . obtain possession .of his merchandise, pays the duties under 3011, Rev. St., he must, at or before the time of such a and that a prote$t made within .10 days.ll,'fter the ascertaithnent and liquidation of duties. under section insufficient, because too late in point of time; and that, therefofe,.s.uch protest, although complying with the prO'Visions of cannot be admitted in evidence as a legal protest in a suit brpught by the importer against the collector to recover ba.ck the excess of duties. '.It be remembered at the outset that the whole subject of the right of action by an importer to recover duties illegally exacted oy a collector, which includes, of course, the question of protest, now purely statutory. This has been so decided by the supreme U. S. 238, 3 Sup. Ot. 184, and Porter court in flrnson v. Murphy, y. Beard,l,24 U. S. 429, 8 SUPf Ot. 554. r.rhe old common-law right of actio'll recognized and applied in Elliott v. Swartwout, 10 Pet. 137, anq which rests upon the impJ,ied prornise of the collector to refund .w)lich be had as of the government, but which the law did not authoriZe him foexact, has.been superseded by based excluS'ively oua statutory liability. Mr. Justice ¥attheW/il,speaking for in Arnl;lon v. Murphy, says,:
"i',li'rRIu t.bis review of jUdicial history of the subject, It.ia; l(pparept that the cQmwoo-1aw action recognized as. lJ.ppropriate by the' decision in ElUott v. 1Q Pet., 137. has been converted into an action based entirely Ol1 i . ' l'I.ifferentprihclp'le,-that of 'a statutory liabUity. instead of an implied promise,-whlcb. if not originated by the act
of congress, yet Is regulated, as to all its incidents, by express statutofY provisions. * * · Congress having undertaken to regulate the whole sullject, its legislation is necessarily exclusive."
"On the entry of * * * any merchandise, the decision of the colle<;tor as to the rate and amount of duties to be paid * * * on stich merchandise * * * shall be final and conclusive against all persons interested therein, unless the owner, * * · 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 consulllPtion, give notice in writing to the collector on each entry, if dissatif;\fied 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. The decision of the secretary on such appeal shall be final and conclusive; and such · *. merchandise· * · shall be liable to duty accordingly, unless suit shall be brought within ninety Cj.ays after the decision of the secretary of the treasury, on such appeal:'
The protest, therefore, which we have to consider in this case, is not the old common-law protest, but the protest provided by statute. More specifically stated, the question is not at or within what time a protest at common law must be made to entitle a person to recover back money illegally exacted, but within what time does the statute declare a protest must be made in order to give to an importer a right of action against a collector for duties claimed to be in excess of law, where such duties are paid in order to possession of the merchandise. If the :tivst part of section which says that "any person who shall have made payment under protest and in order to obtain possession o.f merchandise import¢d for him," was the whole statutory law on the subject of protest, I admit the force of the government's position; but I cannotadm;.t, taking the whole of sectiO'Il 3011, in connection with section 29$1, as they exist in the Revised Statutes, as amended and corrected by the act of March 2, 1877, that the argument of the governmentJ..is sound. Section 3011, which is taken from the act of February =?6, 1845 (5 Stat. 727), provides that "any person who shall have made payment under protest and in order to obtain possession of merchandise imported for him" may maintain an action at law against the collector to ascertain the validity of such payment, and to recover back any excess so paid; "but no recovery shall be allow:ed in such action unless a protest and appeal shall have been as provided in section twenty-nine hundred and thirty-one." tion 2931, which is taken from section 14 of the act of June 30,1864 (13 Stat. 202), provides as follows:
It is perfectly clear that these two sections of the statute are to be construed together. When section 3011 declares that no recovery shall be allowed unless a protest and appeal shall have been taken a's prescribed in section 2931, it makes the provisrions ing protest and appeal contained in that section a part of secfion 3011, and the result is the same as if those provisions had qeen actually inserted in the latter section. The act of 1845, which 'has now become section 3011, contained specific provisions respecting the form and time ,of protest. It declared that no action can be
"so paid under protest, unless the said protest was made and signed by the claImant at or before the payment of Saia duties, setting forth distinctly and 8tJ:ecifically the gr<>lihdsofobjection to the payment thereof." But tllese provisions respectihgtheform and time of protest which are found in the act of 1845 J:l.Rve' been eliminated from section 3011, andthel'e has been substPtWeea'therefor the kind of protest called for by section 29fH. ,SurelY; the' only conclus'ion that can fairly and reasQoobly be drijwn from,'thiaisthat the protest provided for in secti'9n is to take the pll;lce Of the protest described in the act to th@sewJ:!;opayduties 'hider protest for the purpOSe 'of, oDtaining their .. ,r: ,. atigument of the is that 'While the act of March 3, 1839"J6'Stat. 348, §2), as construed by the SUpreme court in Cary v. 286"tookaway the old cOinmon-law right of action by tlleiTnporter 'against the collector for illegally exacted duties, the February 26, 1845 (5 Stat. 727)i, now section 3011, of thebld common-laW-right which had prea protest at common law fiiust (be made' at or before the tune of payment, so the word§ under in the act Of 1845 and in section 3011, ,must and 40 ,signifyJ 'tll!lt the protest must be ,made at or before:tb,e titile of payment. , If, the 'act Qf 1845 had limited itself to tbe, I'eS!oration,of previolis!y existing "common-Iaw the lawof',protest as It stood at common law, there ,W()uld be mp.'ch force iinthisargument, But the trouble is that tJ:lEt act Qf· changes ,'Hie> old common law on the subject, and creates a new"and statUtol'y protest. To be sure, it uses the language "paid money under protest" in the beginning of the section.;l:!n'4;'itit hallIeft there, it might'properly be said tllfj-t a,stl1teinent of the old rule, and signify a ,at or befO'l'e the, time of payment; but, fl.t tl;l.ec1ose of the act, congress goes OIl. to define what shall constitute a payment under'prb1;est in order to' enti#e a party to recover, by declaring for thel'eceiVing of duties "so paid nndel'protest" unless the said protest was made in writing, and signed, !bytheclaimant, at or before the payment of said duties, setting 'forth distinctly the grounds of objection to the payment thereof."Pa;yment under, protest in the act of 1845 signi1ies a payment llnderthe statutory protestprescribed in A. 'protest at common law might be by the last part of parol, hut this statn,tory protestnlUst be made in writl,ng, and must set fortll,'qistinctlytlle grounds of objection, As the';words "paid in the act of 1845 are cOntrolled by the closmoney under, 'lng wdcits ,of' the section describing the, for;ni and tiine ,Of protest, so in tllewords "pl.lyrnent under be interpret(/4 'ill; ,O,f the ,closing pOl'tiOO1 of the section, which says; ,l'ec()'Verysha:ll be,aIIoweq in such unless a 'shall, have been taken, as' ,in section huhdred and thirty-one." To hold otherWise would be
BIR.'PWJ!:LL V. SALTONSTALL.
to divorce "paYIllent under protest" from the rest of the sectiOOl, and to interpret them as if they stood alone and were all that was said on the subject. It would be to declare that the protest required in the first part of the section must be one kind of pro· test, and the protest mentioned in the last part of the section must be another kind of protest as applied to the same subject-matter. If we take the words "payment under protest" by themselves, and as having reference to the old common-law protest, I do not see why a parol protest is not sufficient to answer the requirement of the statute as this protest, because there is nothing to shOw that anything more is required, and therefore it is only by connecting together the first and last parts of section 3011 that any additional statutory requirements respecting pro'test become necessary. But the government insists that the protest must be in writing; and, if so, it must be from something which is found in the statute, and that something is found in the closing part of the act of 1845 and the closing part of section 3011, in which reference is made ito section 2931. If the protest must be in writing, by virtue of the force. of these provisions, then it should conform to these provisions in other respects. The only logical conclusion from this position of the government is that "payment under protest" means payment under the statutory protest as first described in the act of 1845, and as now set forth in section 2981, Rev. St. The position of the government is that these statutory regulations on the subject of protest govern as to form, but not as to time; and the argument seems to be this: To entitle a person to this right of action at common law, payment must be made at or before the time of protest. The act of 1845 (section 3011) merely restored the old common-law right of action, and is the enabling act conferring this right, as distinct from section 2931, which merely limits and restricts the right. ''Payment at or before the time of protest" is synonymous with "payment under protest." The words "payment under protest" appear in the act of 1845 and in all subsequent statutes which deal with. this right of action. When congress amended section 3011 by the act passed in 1877 for the corrections of errors in the Revised Statutes, it struck out the protest require· ments found in the act of 1845, but still left remaining the words "payment under protest;" and that it follows from these propositions that the old common·law rule still prevails as to the time of protest when the person makes payment to obtain possession of his merchandise. But, admitting the premises to be true, I do not think the conclusion follows, and for the reasons I have already given. The question of protest is now purely statu,tory. The protest mentioned in the first sentence of section 3011 means the protest referred to in the last sentence, and the protest referred to in the last sentence is the protest found in section 2931, where both the time and the form of protest are given. There are no reported cases in which this identical question has been determined, but an examination into the legislative and judi· cial history of the law of protest and of the practice which has pre·
vafledin the treasury dePtl.t.1IDent in' respect thereto does not, in :ny .opiJriGll, assist the contenti'i!m Of the government. We have first the act of 1845 (5 Stat. 727), in whieh the provisions Of the protest which must be filed by personswhoItlake payment under protest iIi order to obtain their goods are for the first time defined by statute. Then follows the act of June 30, 1864.(13 Stat. 202), which was passed to correct certain evils! arising under the act of 1845, and which, among other things, extends the making protest to 10 days after liquidation. NeXt, we have the Revised Statutes of 1875, in which the act of 1845 appears in section 3011, and the act Qf 1864 in section 2931. In this edition of the ReV::ised Statutes both forms· of protest of the act of'1845, which requires the protest to be made before or at the time of payment ; and that of the act of 1864, which allows a protest to be filed within 10 days after liquidation. Then follows the act of 1877, for the correction of errors in the Re· vised Statutes. Under this act,congress struck out the provisions relating to protest found in' section 3011, and taken from the act of 1845; and in place of what was repealed it declared the protest and appeal required should be in accordance with section 2931. I think this shows a clear expression of legislative intent to make the protest described in section 2931 the only statutory protest necessary to be made. Under the act of 1845, itw88 decided by Chief Justice Taney in Bruney. Marriott, Taney, 144, Fed. Cas.. No. 2,052, which decision was affirmed by the supreme court in 9 How. 619, that the protest is not required to be made on:or before the payment of what is called "estimated duties/' and that the protest is legally made when the duo ties are .finally determined and the amount assessed by the collector. The court says: ,'lThe payment of the money upon the estimated duties is rather in' the nature of a pledge than a This autborityhas been questioned, and upon the point under consideration is hardly 'consistent with langbage used in Barney V. Watson, 92 U. S. 449, but it seems to be recognized as sound in DavieS' v. Miller, 130 S. 284, 9 Sup. Ct. 560. But whatever weight is to be given to Bruney. Marriott, it is important in one respect as showing that, whenever the question of the time of making p'rotest has been in the inquiry has been what is the statutory provision on this point. In that case the court only directed its examination to the construction· of the words "atlo1" before the payment," in the act of 1845; .jqst as in Davies v. Miller, 130 V. S. 284,: 9 Sup. ct. 560, the coucteQnfined to the proper signification of the words "within .ten ,days. after the asc.ertainment and liquidation," in the ·actiOf,·J:864. the of the act of June 30, 1864 (section 2931), and down i to. the enactment of the Revised· Statutes -in 1875, the act appears: to have been treated by the courts as repealing by implication theaetof oonsequently as containing the whole law on the subject of protest. Barney v.Watson, 92 U. S. 449. It has been mQre:fficently,held, that the act of 1864 did not repeal the acto! 184,5, and thatb9th acts, as noweUlbodied in sections 2931 and 3011, Rev. St.,. are to be construed .as coexisting.
THE :MARY GARRETT.
Arnson v. Murphy, 109 U. S. 238, 3 Sup. Ct. 184; U. S. v. Schlesinger, 120 U. S. 109, 7 Sup. Ct. 442; Porter v. Beard, 124 U. S. 429, 88up. Ct. 554. But, however this may be, this much is true: that, since the act of 1864, tM supreme court has assumed that an the requirements of a valid protest were contained in that act, and that a protest made within 10 days after liquidation is good. The question of the time of protest under the different statutes is carefully discussed in Davies v. Miller, 130 U. S. 284, 9 Sup. Ct. 560, and it is there assumed that the act of 1864 governs as to time. And so with the treasury department. It has by its regulations and the practice of its officers, since 1864 and down to the customs administrative act of 1890, recognized a protest made befQre the expiration of 10 days after liquidation as good and valid under the law to enable an importer to maintain an action against a collector for the recovery of duties illegally exacted. Since the decisions in Arnson v. Murphy and other cases holding that the act of 1864 did not repeal the act of 1845, I think, if the question under consideration had arisen after the passage of the act of 1864, and before the amendment of section 3011 under the act of 1877, it would have been difficult to have arrived at a satisfactory conclusion. This difficulty, however, would not have been caused by reason of the words "payment under protest," in the first part of section 3011, but because the statute apparently contained two kinds of protest,-one described in the act of 1845, now section 3011; and the other in the act of 1864, now section 2931. The amendment of section 3011 repealing the protest therein contained removed this inconsistency, and made the law clear and intelligible. For these reasons, I am of opinion that the protests now offered in evidence were made within the time required by law, and therefore should be admitted.
THE MARY GARRETT. ANDERSON v. THE MARY GARRETT. (District Court, N. D. California. October 29, 1894.)
ADMIRALTy-JURISDICTION-INJURY ON WHARF.
Admiralty has no jurisdiction of an action for injury to a person on a wharf, caused by negligence originating on a ship; and it makes no difference that the person was employed as a seaman on the ship. The fact that libelant claims, as part of his damages for the tort, loss of his wages as seaman, does not aid the jurisdiction of
Libel by Gust. Anderson against the steamboat Mary Garrett, her tackle, apparel, and furniture, for damages for personal- .injuries to a seaman employed on the vessel, sustained on a wharf by reason of the alleged negligence of the mate and owner of said vessel in unloading a portiQll of the cargo. Exceptions to the jurisdiction of the court. Exceptions sustained. v.63F.no.7-64