Scherk Importing Co. v. United States

Per Curiam: This is a motion made on behalf of the plaintiff for an order directing the collector of customs for the port and district of New York to transmit to this court two protests — one, collector’s No. 24967, filed June 2, 1927, and the other collector's No. 32963, filed July 18, 1927, together with the entries, invoices, and other-papers in connection therewith. In the moving affidavit of James W. Bevans, Esquire, of counsel for the plaintiff, it is set forth that these protests were lodged against demands of the said collector for certain amounts of money claimed to be due the United States Government on warehouse entries 78683, 6881, 81981, and 8362, and that although the said collector has been requested so to do he has failed to forward said protests and the entries and the accompanying papers to this court for due assignment and determination as required by section 515 of the tariff act of 1922. For the defendant there is submitted in opposition to the motion [265] an affidavit made by Henry C. Stuart, Esquire, assistant collector of the Port of New York, in which it is set forth that each of said entries was liquidated several years before the filing of said protests; that to recover the amounts claimed to be due the Government as aforesaid, actions have been brought in the United States District Court for the Southern District of New York, that court having exclusive jurisdiction in an action at law for the collection of duties due on importations of merchandise, and said affiant refers this court to Buxbaum v. United States (80 Fed. 885) as authority as to the right to bring such an action to collect duties due on a warehouse bond. For the purposes of this motion and the decision thereof, we do not deem it either necessary or pertinent to discuss the right of the Government to.sue for the recovery of the said amounts in the United States District Court, or even the merits of the claims made in these protests, inasmuch as the only question before us is the right of the collector under existing law to refuse to transmit the protests and the accompanying papers to this court for due assignment and determination. Section 514 of the tariff act of 1922 provides, among other things, as follows: All decisions of the collector, including the legality of all orders and findings entering into the same, as to the rate and amount of duties chargeable, and as to all exactions of whatever character (within the jurisdiction of the Secretary of the Treasury) * * * shall be final and conclusive upon all persons, unless the importer, consignee, or agent of the person paying such charge or exaction, or filing such claim for drawback, or seeking such entry or delivery, shall, within sixty days after, but not before such liquidation or decision, as well in cases of merchandise entered in bond as for consumption, file a protest in writing with the collector setting forth distinctly and specifically, and in- respect to each entry, payment, claim, or decision, the reasons for the objection thereto, * * * . And section 515, sufra, insofar as pertinent to tbis motion, reads— Upon the filing of such protest and payment of duties and other charges the collector shall within sixty days thereafter review his decision, and may modify the same in whole or in part and thereafter refund any duties, charge, or exaction found to have been collected in excess, or pay any drawback found due, of which notice shall be given as in the case of the original liquidation, and against which protest may be filed within the same time and in the same manner and under the same conditions as against the original liquidation or decision. If the collector shall, upon such review, affirm his original decision, or, upon the filing of a protest against his modification of any decision, the collector shall forthwith transmit the entry and the accompanying papers, and all the exhibits connected therewith, to the Board of General Appraisers for due assignment and determination, as provided by law. * * * There is no ambiguity in the language thus quoted. It is in section 515 clearly and specifically provided that upon the filing of a protest against any act of the collector reviewable by this court that he shall within sixty days thereafter review his decision and if after such [266] review be shall affirm or modify the same he shall “forthwith" transmit, the entry and the accompanying papers and all the exhibits connected therewith to the Board of General Appraisers (now Customs Court) for due assignment and determination. It is not, therefore, within the discretion of the collector to hold a protest against bis decision or exaction longer than a_ reasonable time for transmittal to this court after the expiration of 60 days from the date of the filing thereof nor has that officer any lawful authority legally to determine whether a protest filed against his act is valid, or whether it is sufficient to invoke the jurisdiction of this court to review the act protested against.. Therefore, more than 60 days having elapsed since the filing of these protests, and there having been no reversal or modification of the acts protested against, the motion is granted and an order will' issue directing the collector to forthwith transmit to this court the-said protests, together with the entries and the accompanying papers..