In re Sherman
49 F. 224
U.S. Circuit Court for the Dis...
1892
Check Treatment
Wheeler, District Judge.

In this case one question is as to amending the protest. I think it is very clear that that cannot he done, because it would he making a new protest. The protest must be made within the 10 days specified by section 14 of the act of June 10, 1890, (chapter 407, 26 U. S. St. p. 131.) As those 10 days have elapsed, that cannot bo done. Another question is on the point raised by the protest. If the collector assesses duty under one part of the statute, and the importer claims by protest that it should be another duty, under another part of the statute, then the case goes to a board of three general appraisers. Under the old law, in such a case, the only point was whether the importer was right in that. Davies v. Arthur, 96 U. S. 148. If ho was, then the duty was to be changed accordingly; if not, not. But hero the board of general appraisers said that it came under a third part of the law; that is, they did not decide that case, hut decided another case, for that made another case under the tariff law. Precisely the same question was raised in a case before Judge Lacojibe. In re Austin, 47 Fed. Rep. 873. There the protest was from an assessment under one clause of the statute, and the importers claimed that the assessment ought to be under another clause o f the statute. When it got into this court the court thought it ought to have been under a third clause, just as the board of general appraisers here thought it ought to have been under a third clause. But ¡he court decided that they could not go to a third clause, although the third clause imjiosed a lesser rate of *226duty than that imposed by the collector, but that it must be decided on 'the protest of the importers, the only question being whether the importers were right in claiming, as they did, on the grounds they did by their protest. Although they claimed a lower rate of duty, and the third clause imposed the same rate, still the court held that that was the question to be decided; and that is the question to be decided here. I must follow that case, and decide here that the importers were wrong, and the collector right, upon the questions made by the protest, and that he assessed the proper rate of duty; and that reverses the decision of the board of general appraisers. I follow that case as an authority, and because I think it is right. I think that is the meaning of the statute. The decision of the board of general appraisers is therefore reversed, and the decision of the collector affirmed.