United States v. Schwartz

Martin, Judge, delivered the opinion of the court: Under the tariff act of 1909 the appellees imported into this country .certain 500 rolls of bagging for use in baling cotton. — 25 — The collector classified the importation as bagging for cotton, composed of jute, jute butts, or bemp, falling within the classification established by paragraph 355 of the act, and duty was accordingly assessed thereon at the rate of six-tenths of 1 cent per square yard. ■ It is now conceded of record by both parties that this classification was erroneous, for the reason that the bagging in question was not composed of jute, jute butts, or hemp, and was not governed by paragraph 355, and duty should not have been assessed upon the importation under that paragraph. It is also conceded that the importation in fact and law properly came within the terms of paragraph 358 of the act, as manufactures of vegetable fibers not specially provided for, and was dutiable at 45 per cent ad valorem as therein provided. The importers filed a protest against the classification and assessment thus erroneously made by the collector, contending that the importation was dutiable at 45 per cent ad valorem under paragraph 358, or alternately at 20 per cent ad valorem as nonenumerated manufactured articles, or at 10 per cent ad valorem as nonenumer-ated unmanufactured articles, under paragraph 480. The assessment of 45 per cent ad valorem, as first claimed in the protest, would impose a greater duty upon the importation than the rate actually assessed. However, that rate was the correct one, and was the real contention of the importers. The protest came on to be heard by the Board of General Appraisers. The Government thereupon filed a motion to dismiss the case on the ground that the protest contended for a higher rate than the one actually assessed by the collector, and that the importers had no right to appeal to the board in such a case. This motion was overruled ; and upon consideration the board sustained the protest, holding the importation to be dutiable at the higher rate claimed by the importers, and ordering a reliquidation accordingly. A somewhat unusual record is thus presented for review, which' may be briefly recounted. In the first place, the importation was erroneously classified and assessed by the collector; thereupon the importers protested,. claiming a rate of duty higher than that actually assessed; upon appeal the board held the higher rate to be the lawful one and ordered the collector to receive the larger duty thus virtually tendered by the importers. The Government then appealed from this decision, no longer, however, asserting the correctness of the rate assessed by the collector, and not now denying the correctness of the classification and assessment adjudged by the board, but simply claiming that the board had no jurisdiction to entertain the appeal because of the fact that the rate claimed by the importers was higher than that actually assessed by the collector. — 26 — As may be seen from the foregoing statement, the sole question which is now presented in the case is whether or not the importers had the fight to appeal to the board from the collector’s assessment notwithstanding the fact that their protest proposed a rate of duty higher than the assessed one. Prior to the act of-June 10, 1890, the subject of appeals from decisions of collectors was controlled by section 14 of the act of June 30, 1864 (13 Stat., chap. 171). That section provided that the decisions of the collector as to the rate and amount of duties should be final and conclusive against all persons interested therein, unless the importer or his agent, if dissatisfied with such decision, should within 10 days give notice in writing to the collector, setting forth therein distinctly and specifically the grounds of his objection thereto, and within 30 days appeal from such decision to the Secretary of the Treasury. It was provided that the decision of the Secretary upon such appeal should be final and conclusive, unless suit was brought within 90 days thereafter for any duties paid in conformity with such decision. It was also provided that no suit should be maintained in any court for the recovery of any duties alleged to be erroneously or illegally exacted until the decision of the Secretary of the Treasury should first be had upon such appeal, unless the decision of the Secretary thereon should be delayed beyond certain prescribed periods. Whether the Secretary was invested by this act with authority to entertain appeals' upon protests" claiming a higher fate than that assessed need not now be considered. In any event, such a protest, whether as an appeal under the statute or as a mere complaint apart from it, might be' addressed by an importer to the Secretary and ruled upon by him; and such ruling would at least have had the effect of a direction to the department. However, the provisions for such appeals were radically altered by Congress by the act of June 10, 1890, and the terms of that act, as subsequently amended, must furnish the rules which control the present issue. By the act of June 10, 1890 (26 Stat., chap. 407), it was provided by section 12 that “nine general appraisers of merchandise” should be appointed who “shall be employed at such ports and within such territorial limits as the Secretary of the Treasury may from time to time prescribe, and are hereby authorized to exercise the powers and duties devolved upon them by this act, and' to exercise, under the general directions of the Secretary of the Treasury, such other supervision over appraisements and classifications, for duty, of imported merchandise as may be needful to secure lawful and uniform appraisements and classifications at the several ports.” Section 14 of the same act provided, in brief, that the decision of the collector as to the rate and amount of duties chargeable upon — 27 — imported merchandise should be final and conclusive against all persons interested therein, unless the importer or his agent should, within 10 days thereafter, if dissatisfied with such decision, give notice in writing to the collector setting forth therein distinctly and specifically the reasons for his objection thereto, and if the merchandise be entered for consumption, should pay the duty as thereon assessed, whereupon the collector should, transmit the files and exhibits to the board of three general appraisers then on duty at the port of New York or to such board as might be designated by the Secretary of the Treasury, and such board should “examine and decide the case thus submitted.” By the present act the board is given “full power to hear and determine all cases and questions arising therein or assigned thereto * * *; and shall have all the jurisdiction and powers and proceed as now, heretofore, and herein provided.” Other amendments also to the act above cited have since been enacted, which, however, do not essentially affect the present question, and they do not seem at present to require specific mention in this connection. The foregoing provisions, therefore, are, in substance, the law governing this case. As is stated above, the importer is given the right to appeal to the board from the decision of the collector “if dissatisfied” with that decision; and in the present case the importers undertook to exercise such a right. If the words of the act are taken in their ordinary meaning there can be no doubt that the importers had the right to appeal in this case, because within the usual meaning.of the word the importers were “dissatisfied” with the decision of the collector. However, it is contended by the' Government that the right to appeal upon a protest is allowed only in cases where the duty proposed by the importers is lower than that assessed by the collector, and that the word “dissatisfied” is limited by construction to such cases only. It is accordingly contended that an importer can not be “dissatisfied” with an assessment unless he suffer a pecuniary loss because of it; and that the importers in this case, therefore, did not come within such description because the assessed rate was less than the rate for which they contended. Upon this assumption the attempt of the importers to perfect such appeal was nugatory, and the board lacked jurisdiction' for want of necessary parties to entertain it; and the decision of the board was therefore necessarily erroneous and reversible. It thus appears that the single ultimate question presented by the record is whether or not the importers came within the description “dissatisfied” within the meaning of the above-cited provision for appeals. If they came within that description they had the right to appeal; otherwise they had no such right. . In coming to a conclusion upon this question it is important to observe that the foregoing provisions do not make the collector’s — 28 — decision as to the rate and amount of duty final and conclusive upon the Government. A reliquidation by the collector at any future time is not forbidden, although the act of . June 22, 1874 (18 Stat., 190, sec. 21), limits the exercise of this right of reliquidation, in the absence of fraud, to one year next following the original liquidation. This fact greatly favors the construction that the importers are entitled to an appeal in case of an erroneous classification and assessment, even if lower than the correct one, because such assessment may at any time within a year be reliquidated by the collector. If such reliquidation be made within the year an action may be begun against the importers at any time thereafter for the balance due upon the reliquidation. The payment by the importers of insufficient duty thus erroneously assessed by the-'collector upon their importations does not of itself effectuate a final discharge of their obligation to the Government. Therefore, in cases wherein they are convinced that the assessed rate is illegally low, or indeed in cases in which there is extreme doubt as to the correct rate, the importers, for their own safety, should be given the right to submit the question by appeal to the proper tribunals for a final decision. The practical importance of such a right to the importers in certain cases must be obvious, and must of course have received proper legislative consideration. It is reasonable to believe, therefore, that the section in question was intended to cover such cases, as well as those cases in which the collector’s assessment may be regarded by the importer as too high. In either case the object of an appeal is simply to have the lawful rate of duty judicially ascertained and enforced for the just protection of both parties to the proceedings. And this view is supported by the terms of the act above cited defining the duties of the general appraisers, parts of which are here repeated: They shall be employed at such ports and within such territorial limits as the Secretary of the Treasury may from time to time prescribe, and are hereby authorized to exercise the powers and duties devolved upon them by this act, and to exercise under the general direction of the Secretary of the Treasury such other supervision over appraisements and classifications, for duty, of imported merchandise as may be needful to secure lawful and uniform appraisements and classifications at the several ports. In view of the conflicting arguments concerning the word “dissatisfied,” it becomes important to review the interpretations which have been placed by the board and the courts upon the disputed .term, with the especial purpose of learning how far such interpretation must have become known to Congress and been impliedly adopted by subsequent legislation. Within a few years after the passage of the act of June 10, 1890, in the case of De Blois & Ballut, reported as T. D. 14691, January, 1894, this identical question was decided by the board. The importa — 29 — tion in that case had been classified as manufactures of straw and assessed with duty as such at 30 per cent ad valorem. The importers- protested, claiming the goods to be manufactures of cotton dutiable at 40 per cent ad valorem. The- board, sustained the protest and said: The appellants in their notice of dissatisfaction with the collector’s decision claim in the alternative that said goods are dutiable at 40 per cent ad valorem under paragraph 355. This claim would seem to be well founded, and notwithstanding the fact that the rate of duty claimed by the importers to be applicable to the merchandise is greater than that assessed thereon by the collector, we feel constrained to sustain the protest and authorize the collector to reliquidate the entry accordingly. The merchandise imported in the foregoing -case had been entered under the act of 1890. This decision was apparently acquiesced in; at least there is no reported review of the case on error. In the cage of T. K-eissner (T. D. 23471, January, 1902), the board considered a case in which the collector held the importation to be wholly exempt from duty. The importer, however, contended that such goods were dutiable at 45 per cent ad valorem, and his protest was filed to that effect. The board entertained jurisdiction of the case, but held nevertheless that the collector’s ruling was correct and-that the importation was free. The board expressed doubt as to the right of an importer to protest in such a case, in the following words: There is also some doubt whether such a protest as that now under consideration can properly be entertained at all, for it may be seriously questioned whether a party importing goods which are admitted to free entry can legally take exception to the action of the Government officer which presumptively does him no injury. In the case of Wakem & McLaughlin (T. D. 24723, decided by the Board of General Appraisers in October, 1903), the importation had been, classified as lithographic prints dutiable at 20 cents per pound. The importers protested, claiming the goods to be dutiable at 50 cents per pound as metal-leaf lithographs. The board referred to the doubts expressed, in the case next above cited, but nevértheless. proceeded with a decision of the case upon the merits. The protest was found to be not well taken, and was overruled. This case was thereupon taken to the United States Circuit Court, Northern District of Illinois, and reported as Wakem v. United States (T. D. 25827, October, 1904). The court sustained the appeal of the importers, and also sustained their contention upon the merits, thus necessarily approving the right of appeal claimed by the importers in the present case. As part of its order the court adjudged the importers to pay the additional duty required of them according to law. In T. D. 31017 (case of G. W. Sheldon & Co., decided by the board October, 1910), the board followed almost without comment the rule laid down by the decision just above cited. — 30 — It may be repeated that the act first establishing the Board of General Appraisers and defining its jurisdiction was enacted on June 10, 1890. In January, 1894, the board reported-the first decision above cited sustaining the importer’s right to an appeal in such a case as the present one. In August, 1894, was enacted the general tariff act of that year. It may well be claimed that the foregoing important decision of the board was not overlooked by Congress; but' the new act contained no new provision upon that subject. The former administrative act, which was construed by the board in the cited case, was not amended nor even reenacted. It remained upon the statutes as the act of June 10, 1890. In the act of July 24, 1897, whereby a general revision of the tariff was effected, no amendment was enacted upon the subject now in hand. Section 32 of that act amended the provisions of sections 7 and 11 of the administrative act, but those sections did not relate to the subject of appeals. It may be said, however, that the earlier act was before Congress, and was amended in those particulars which in the legislative judgment required amendment. On May 27, 1908, Congress passed an act entitled “An act to amend an act entitled ‘An act to simplify the laws in relation to the collection of the revenues,’ approved June tenth, eighteen hundred and ninety, as amended by the act entitled ‘An act to provide revenues for the Government and to encourage the industries of the United States,’ approved July twenty-fourth, eighteen hundred and ninety-seven.” (35 Stat., 403, chap. 205.) By this enactment section 14 of the original administrative act was reenacted, being the section containing the provisions in controversy, altered, however, so as to increase the time for protest from 10 to 15 days; also allowing rehearings by the board, and permitting the board to establish rules of practice not inconsistent with law. Obviously the entire subject of appeals from the collector to the board was considered by Congress, but no amendment was enacted which related to the subject now at bar. By the tariff act of August 5, 1909, this court was established. The administrative act.was reenacted as section 28 of that law. Section 14 of the administrative act, now numbered subsection 14 of section 28, was amended by the substitution of the name of this court for the Circuit Court in the provision for appeals from the board, but no amendment was enacted relating to the subject now under review. The decisions of the board above cited expressed doubt as to the right of importers to appeal from a ruling of the collector assessing too low a duty or admitting to free entry merchandise which, was lawfully dutiable, but this doubt was resolved by the-board in favor of the importers, and their claim to an appeal was sustained. And not — 31 — withstanding the reported decisions allowing such appeals no amendment appeared in any of these enactments designed to change the rule. It is perhaps permissible to say that the very fact that the board had expressed doubt concerning the ruling in question would tend the more certainly to direct legislative attention to the subject upon a reenactment of the administrative act. In all kinds of legislation substantial weight is given to such implied legislative adoption of judicial interpretations of preceding statutes, and in tariff legislation that rule must of necessity be given unusual force. It may fairly be said, therefore, that the courts adopted the broader interpretation for the phrase ‘ ‘if dissatisfied,” and Congress approved such interpretation by its subsequent failure to change the construction upon which it was founded. These considerations lead the court to the conclusion that the importers in this case were within their rights when they protested against the collector’s classification; and that the board was within its jurisdiction when it sustained their protest. It must of course be apparent that the decision of the board should be affirmed unless it was totally void for want of jurisdiction. It is conceded that the decision was correct respecting the duty which should have been assessed upon the importation; and that the appellant profited by the decision because the duty adjudged to it thereby was in excess of that claimed by it. Therefore appellant can have, under these conceded circumstances, no right to invoke the appellate jurisdiction of this court and move this court to action in its behalf, save only upon the ground that the decision of the board was a nullity, and should be reversed in order that it may not be suffered to retain even a formal appearance of authority. Inasmuch, however, as the board’s decision- was not a nullity, and inasmuch as its correctness upon the merits of the single other question involved is conceded, it should be, and is, affirmed.