11 Blatchf. 354 | U.S. Circuit Court for the District of Southern New York | 1873
at the close of the argument, stated his opinion, in substance, as follows:
. The act of congress of February 20th, 1845 (0 Stat. 727), provided, that no action should be maintained against any collector, to recover the amount of duties paid under protest, unless such protest was made in writing, and signed by the claimant, “at or before the payment of said duties.” It appears by the ease of Brune v. Marriott [Case No. 2,052], that Chief Justice Taney held that language sufficiently broad to justify him in sustaining an action brought by Bruñe to recover for duties paid upon sugar and molasses imported and entered after the protest was made, where the protest expressly declared the intent of the importer that it should apply to all his importations of sugar and molasses. There the protest was literally before the payment of the duties. The supreme court of the United States (Marriott v. Brune, 9 How. [50 U. S.] 619), on writ of error, affirmed the judgment and so, in effect, affirmed the sufficiency of a protest made in one case but, by its terms, declared to be intended to reach and embrace subsequent importations of a like character belonging to .the same parties. This affirmance, however, was deemed by Mr. Justice Curtis to have rested on the “very peculiar” circumstances of that case, which, he says, were “relied on by the court as the reasons for a decision at which they manifestly felt great difficulty and hesitation in arriving.” He. therefore, held, in Warren v. Peaslee [Case No. 17.198], that, where the importers added to a formal protest in relation to specific goods, the words, “You are hereby notified that we desire and intend this protest to apply to all future similar importations made by us,” such prospective protest was not sufficient to entitle the importers to maintain an action for the amount of duties erroneously exacted on goods subsequently imported, and that a protest should be made in reference to the particular payment complained of. But. in the case of Steegman v. Maxwell [Id. 13.344], in this court, Mr. Justice Nelson, sitting with Judge Betts, then district judge, held a similar protest sufficient. Judge Betts, in delivering the opinion, adverts to the apparent hesitation of the supreme court in sustaining such protests, as a general rule, but he nevertheless affirms and approves it. Soon thereafter, the act of March 3d, 1857 (11 Stat. 1921. was passed, and by the 5tb section, it provides, that, on the entry of any goods, the decision of the collector shall be final and conclusive., unless the owner shall, “within ten days after such entry,” give notice to the collector, in writing, “setting forth therein distinctly and specifically his grounds of objection.” Under this act, the like question of the validity or effect of such prospective or continuing protest was raised in this court, in Hutton v. Schell [Case No. 6,961], Judge Smalley, district judge for Vermont, holding the court. The same construction was given to the act of 1857 as had before been given to the act of 1845, and for like reasons, the cases above mentioned being cited and commented upon. Judge Blatchford. in Wetter v. Schell [Id. 17,470], declares it settled, in this district, that such a protest as to future importations is valid and effective under this act of 1857, and is so valid and effective, although the collector to whom it was delivered is no longer in office, and the action is brought to recover the amount of duties exacted by his successor or successors; and he states that Mr. Justice Nelson, in Chouteau v. Redfield [Id. 2,696], so decided. The result of these decisions under the act of 1857 is, that a requirement that a notice shall be given “within ten days after such entry” is satisfied by the giving of a notice ten or, it may be, twenty years before such entry; and that, although the statute declares that, on the entry of any goods, the decision of the collector shall be final and conclusive, unless the owner, &c., shall give notice to the collector. &c., it will be sufficient if the owner have given notice to any predecessor in office, immediate or remote, of the collector making the exaction. Whatever my own unaided judgment would have suggested concerning the question under the acts of 1845 or 1857, and notwithstanding various and impressive reasons and arguments urged upon me adverse to the construction given, especially to the latter act, I should not, in a case arising under that act, feel at liberty to regard it as an open question in this district. The construction I have mentioned having been given to it during many years, not only by the district judges holding the circuit court, but by Mr. Justice Nelson, my predecessor in this position and. by his relation to the supreme court, my superior in office, I should regard myself as bound by their decisions. The government has not seen fit to take those decisions to the supreme court, for consideration; and it is not fit that I should review them, even though they seemed doubtful.
The present case did not arise under either of the acts thus far mentioned. It is the act of June 30th, 1864 (13 Stat. 214), by which this case is governed. The 14th section of that act provides, that, “on the entry of any vessel, or of any goods, * * * the decision of the collector of customs, at the port of importation and entry, as to the rate and amount of duties to be paid on the tonnage of such vessel or on such goods,
My conclusion, .that, under the statute of 1864, such prospective or continuing protest as to future importations is not valid and effective, and that the protest in this case does not satisfy the statute, requires, according to the terms of the stipulation made by the parties, that the jury render a verdict for the defendant. Conclusions formed upon the presentation and argument of a question for the first time raised, may properly be reviewed, and the court will give to the plaintiff, if he so desires, time and opportunity for such review, and a more deliberate examination of the subject in this court, or in the court of last resort.