Gulbenkian v. Stranahan

158 F. 836 | U.S. Circuit Court for the District of Southern New York | 1907

HOUGH, District Judge.

In my opinion section 14 of the administrative act of 1890 (Act June 10, 1890, c. 407, 26 Stat. 137 [U. S. Comp. St. 1901, p. 1933]) is complied with by either (1) transmitting all the papers and exhibits to the Board of General Appraisers,' or (2) complying with the terms of the protest. In this view the claims based upon the importations enumerated in schedule 2 are disposed of by United States v. Whitridge, 197 U. S. 135, 25 Sup. Ct. 406, 49 L. Ed. 696; for if the Secretary of the Treasury, after a hearing before the-Board of General Appraisers, could exercise his rights under section 25 of the act of 1894 (Act August 27, 1894, c. 349, 28 Stat. 552 [U. S. Comp. St. 1901, p. 2375]), he could certainly exercise the same rights after having once acquiesced in the terms of the protest.

As to the claims enumerated in schedule 3, it appears to me that, a protest having been duly filed, section 21 of chapter 391 of Act 1874, 18 Stat. 190 [U. S. Comp. St. 1901, p. 1986], does not apply. This is the inference I draw from the remarks at the foot of page 442, 124 U. S., page 558, 8 Sup. Ct., 31 L. Ed. 492 (Beard v. Porter). That is, as shown by the case last cited, since there was a protest against a prior liquidation or settlement of duty, it follows that such liquidation or settlement did not become final and' conclusive at the expiration of a year or at the expiration of any other period, so far, at least, as that statute is concerned.

I am unable to acquiesce, however, in plaintiffs’ 'position that a cause of action accrued against this defendant because such defendant’s predecessor in office unreasonably refused, for the space of nearly two years prior to his resignation, to give the plaintiffs any redress whatever; that is, he neither yielded to their protest, nor transmitted the papers to the Board of General Appraisers. It may well be that these plaintiffs had a cause of action against Bidwell, but all that Stranahan did was to obey the direct orders of the Secretary of the Treasury to (1) yield to the protest, but (2) pay nothing by reason thereof, and (3) send the papers on to Washington, where (4) steps were promptly taken to render the protest a vain thing. If the collector had even, under the compulsion of his superior officer, refused either to send the papers to the Appraisers or to yield to the protest, a cause of action might exist against him; but he did yield, and I do not think he is responsible for the final action of the Secretary of the Treasury, concerning which it is not necessary to express any opinion.

Judgment for defendant.