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Curtis' Administratrix v. Fiedler, 67 U.S. 461 (1862)

Curtis' Administratrix v. Fiedler

67 U.S. 461


1. An importer from whom a collector exacted illegal duties could not, under the Act of 1839, maintain assumpsit to recover back the excess unless the suit was brought before the officer paid the money into the Treasury.

2. The act of 1845 gave the right of recovering back such excessive duties to all importers who had paid or might thereafter pay them, under protest in writing, with the grounds of objection distinctly set forth.

3. Whether this latter ac, has a retroactive operation so as to include the case of a person from whom excessive duties were exacted before its passage, quaere.

4. But it is certain that a party whose claim for excessive duties is not recoverable under the act of 1839 and who seeks to recover under the act of 1845 cannot avail himself of the latter statute without bringing himself within its terms by showing that he made proper protest at the time of payment.

5. A party imported iron and hemp at the same time, entered them together, and made a general protest against the duties charged in the entry, without discrimination of the packages and stating no ground of objection except that the charge was illegal. Held that such a protest utterly fails to meet the requirements of the act of 1845.

6. The importer must indicate by his protest the distinct and definite ground of his objection to the charge and show his intention to reclaim the excess.

7. This distinctness is required that the officers may know to what amount of risk and responsibility they expose the government by taking the duties in the face of the objection.

Page 67 U. S. 462

Ernest Fiedler, a merchant of New York, in September, 1842, imported into the port of New York from St. Petersburgh, Russia, in the ship Nicholas Savin, a quantity of unmanufactured hemp. He also imported at the same time by the same vessel a quantity of iron in bars.

The Tariff act of August 30, 1842, which was in operation at the time of the importation, contained the following provision in respect to the duty to be levied on hemp:

"On manufactured hemp, forty dollars per ton; on manila, sunn, and other hemps of India, on jute sisal, grass, coir, and other vegetable substances, not enumerated, used for cordage, twenty-five dollars per ton."

Tariff Act of 1842, sec. 3, sub. 3.

Edward Curtis, at that time Collector of the Port of New York, treated this hemp as unmanufactured hemp and charged upon it a duty of $2,575.38, being at the rate of $40 per ton. The duties thus charged upon the iron amounted to the further sum of $848.56. The importer protested against the payment of the duties thus charged on the entire importation. The protest was in writing upon the margin of the entry, which embraced both the hemp and the iron, and was as follows:

"I hereby protest against the payment of the duty charged in this entry on account that there exists no law authorizing the exaction of said duty. Sept. 1, 1842."

No other protest against or objection to the payment of the duties was made by or on behalf of the plaintiff. The duties were paid to the collector September 6, 1842, and by him paid into the Treasury of the United States.

The plaintiff afterwards, in November, 1847, brought the action of assumpsit to recover the difference between the amount of duties charged and paid on the hemp specified in the entry at the rate of $40 per ton and the amount calculated at the rate of $25 per ton, the difference claimed being $965.77. The defendant pleaded non-assumpsit.

At the trial before Mr. Justice Nelson and a jury, the above facts were proved, and the plaintiff claimed that under articles 6 and 11, of the Treaty between the United States and Russia of

Page 67 U. S. 463

December 6 and 18, 1832, the exaction of any duty on the hemp in question beyond $25 per ton was unauthorized and illegal. The articles of the treaty thus relied on are as follows:

"Article 6. No higher or other duties shall be imposed on the importation into the United States of any article, the produce or manufacture of Russia, and no higher or other duties shall be imposed on the importation into the Empire of Russia, of any article the produce or manufacture of the United States, than are or shall be payable on the like article being the produce or manufacture of any other foreign country. Nor shall any prohibition be imposed on the importation or exportation of any article, the produce or manufacture of the United States or of Russia, to or from the ports of the United States, or to or from the ports of the Russian Empire, which shall not equally extend to all other nations."

"Article 11. If either party shall hereafter grant to any other nation any particular favor in navigation or commerce, it shall immediately become common to the other party freely where it is freely granted to such other nation, or on yielding the same compensation when the grant is conditional."

The plaintiff grounded his right to recover on this: that the treaty with Russia fixed the duties on hemp imported from that country at the rates imposed on the same articles from any other country, and inasmuch as the tariff of 1842 imposed only $25 per ton on India hemp, no higher duty could be legally charged on Russian hemp.

The plaintiff called witnesses to prove that Russian and Manila hemps are known in trade and commerce as "hemp," and serve substantially the same purposes, being all used in the manufacture of cordage &c. On the part of defendant it was proved and admitted by plaintiff's counsel that all the hemps of India are the products not of the cannabis sativa, the ordinary hemp plants of Russia and the United States, but of other and different plants and trees.

The defendant asked the court to instruct the jury as follows:

"First. That the present action of assumpsit cannot be maintained, inasmuch as by the 2d section of the General Appropriation

Page 67 U. S. 464

Act of the 3d of March, 1839, which was in force at the time of the receipt of said moneys by the defendant, he was required to pay and did pay such moneys into the Treasury of the United States, and that the Act of Congress of the 26th of February, 1845, cannot operate, nor should it be construed to operate, retroactively to subject defendant in his individual capacity to such action."

"Secondly. That the present action cannot be maintained, inasmuch as defendant acted in precise conformity to the Tariff Act of August 30th, 1842, by which a duty of $40 per ton was laid on all manufactured hemps (except the hemps of India); that as between the defendant as collector and plaintiff as importer, the amount of duties to be paid was conclusively fixed by the said act of Congress. That the question whether or not the discrimination made by the said act of August 30, 1842, between the hemps of India and other unmanufactured hem, was, in respect to Russian hemp, an infraction of the treaty previously made with Russia, was exclusively a question to be discussed and settled by and between the government of Russia and the government of the United States, and that in a private action between the importer and the defendant, it was not competent for the plaintiff to raise, nor for the judicial tribunals to decide, any such question."

"Thirdly. That the present action could not be maintained, because the protest of the plaintiff, dated September 1, 1842, did not refer to the treaty with Russia nor set forth distinctly and specifically any ground of objection to the payment of the moneys, or any part thereof, charged by the defendant for duties on the hemp in question, nor did it discriminate between the duties so charged on such hemp and the duties charged on the iron included in the entry, but, on the contrary, the said protest referred to all the duties charged in the said entry -- those charged on the iron equally with those charged on the hemp, and placed the objection to the payment thereof on the ground that there was no law authorizing their exaction."

"Fourthly. That upon the true construction of the Tariff Act of the 30th of August, 1842, all hemps, wherever produced, and

Page 67 U. S. 465

even though produced in India, which are the products of the cannabis sativa, are charged with a duty of $40 per ton, and the lesser duty of $25 per ton is limited to hemps not the products of cannabis sativa, but of other and different plants or trees, and that therefore the discrimination made in favor of such hemps of India was not an infraction of the treaty with Russia."

The court refused to give the instructions so requested by the defendant, but directed the jury that if they found from the evidence that the hemps of India were, at the time of the passage of the Tariff Act of 1842, generally known in trade and commerce as unmanufactured hemps, the plaintiff was entitled to a verdict for the amount claimed by him, and in accordance with that view the verdict was rendered and judgment given. The defendant took this writ of error.

Page 67 U. S. 474

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