Maxwell v. Griswold

The points ruled in the preceding case of Greely v. Thompson and Forman adopted and applied to this case also, so far as they are applicable. Where the collector insisted .upon either having the goods appraised at the value at the time of shipment, the consequence of which would have been an addition of so much to the invoice price as to subject the importer'to a penalty; or to allow the importer voluntarily to make the addition to the. invoice, price and so escape the penalty, and the importer chose the latter course, this was not such a voluntary payment of duties on his part as to debar him from bringing an action against the collector for the recovery of the excess thus illegally exacted.

This case was brought up, by writ of error, from the Circuit Court of the United States for the Southern District of New York; Like the preceding case of Greely v. Thompson and For-man, it was an action brought by the defendants in error against Maxwell, the collector at the port of New York, for the return of duties paid under protest. In January, 1850, the defendants in error imported into New York, in the ship Matilda, from Manilla, sundry bags of sugar and bales of hemp. The goods were purchased in March and April, 1849, but not shipped until about the 24th of July, 1849, when the market prices had risen very considerably. The assistant appraiser reported upon the value of the articles, meaning by the word valué “ the actual market value at the time of shipment to the United States in the principal markets of the country of produce.” The importers paid the duties, under protests, one of which was the following, Protest Notice. “ New York, January 2nd, 1850. “ H. Maxwell, Esq., Collector: — “We hereby protest against the duties demanded from us by the collector on this importation of plantain bark, or hemp. “ One objection is, that the duties, contrary to law and justice, are assessed upon a greater value than the cost of the same when purchased for'us for shipment to the United States; the true costs and charges, being the value in the foreign market (Manilla), at the time when purchased for shipment, amount to $ 38,197.95, say thirty-eight thousand one hundred and ninety-seven dollars. We are required to pay duties upon an estimated and fictitious value, amounting, with charges, &c., to $47,662.95, and we are compelled to enter the goods at their estimated and fictitious value to-save penalties and forfeitures, and to get possession of our property. “ We protest against being committed to any thing by the form of the entry, which we submit to upon compulsion, insisting that they are not áccording to the truths of the transactions. The sixteenth section of the tariff law of 1842 fixes the date of .purchase for shipment as the time in reference to which the value is to be ascertained, except in the case of goods imported into the United .States from some country other than that of the growtlj or manufacture of the imported articles. There is nothing in the eighth section, or any part of the tariff act of 1846, nor in any other law of the United States, inconsistent with the sixteenth section of the act of 1842. . “ We give notice that we intend, to seek redress by suit at-law and otherwise, as we may be advised, for the- wrong done to us in respect to the excessive duty imposed upon this importation. “ We rely upon the objection we have made, and upon such other objections founded in law and in fact as belong to the case, and we now offer to specify them to the collector, more particularly if requested so to do. “ The sum of money now illegally extorted from us, over and above the true and honest duties, is $ 2,366.25, W.. G. more or less, being 25 per ceht. on the valuation o'ver B. and above actual cost, as specified in the invoice herewith produced. “ True copy. S. P. R. “Nath’l L. & Geo. Griswold.” Upon the trial of the cause a bill of exceptions was taken, which it is not deemed advisable to set forth in extenso, because it contained all the invoices, entries, depositions, and circulars from the Secretary of the Treasury, the whole amounting to nearly thirty printed pages, The following summary of the bill will be sufficient. Southern District of New York, ss. Be it remembered, that on .the 13th day of June, in the year 1850, as yet of the stated term of the said court* commencing on the first Monday of April, in the year 1850,. held at the City Hall, in the city of New York, in the Southern District of New York, before the Hon: Samuel Nelson, Associate Justice of the Supreme Court of the United States, sitting in the said Circuit Court, the issue within contained joined between-the said Nathaniel L. Griswold, George Griswold, George W.Gray, and George Griswold, junior, plaintiffs, and Hugh Maxwell, defendant, came on to be tried, and the said parties, by théir respective attorneys, before the said justice came; and the jurors of the jury in this behalf duly summoned also came; and to say the truth also in this behalf are elected, tried, and sworn. • And the counsel for the said plaintiffs, to maintain and prove the said issue in their behalf, produced ^and gave in evidence the invoices, entries, and protests,-in the words and fig- ' ure3 following: — (Then followed the invoices, entries, and protests, the entries showing that the appraisers had added to the amount “to make value at time of shipment.’-) And proved that said protests were made and delivered to the defendant at and before the payment of the duties on the goods in said invoice and entries contained, and that the. sum of j§ 12,493.50 was paid by-the plaintiffs to the defendants on the 8th day of January, 1850, as duties on the plantain bark named in said foregoing entry thereof, of which amount $> 2,425.50 was duty on the sum of $ 9,702, added with commissions in said entry as therein expresséd, “ to make market. valué of bark”; and on the 15th day of the same month the plaintiffs paid to the defendant the further sum of $ 5f91, as duties on the sugar named in said foregoing entry thereof, of which amount $5 615 was duty on the sum of $ 2,050, added with commissions in said last-mentioned entry as therein expressed, “ to make value at time of shipment.” And further to maintain and prove said issue_on their part, the counsel for said plaintiffs called the following witnesses, .who, being severally duly sworn, testified as follows, that is to say: — - (Then followed the depositions of several witnesses, showing the purchases at Manilla, and that the prices were the regular market prices at the time of purchase.) The plaintiff's counsel, further to maintain and prove said issue on their part, produced and gave in evidence certain circulars of the Secretary of the Treasury, in the words and figures following, viz.: — (Then followed a series of circulars from the Secretaries of the Treasury, beginning with the year 1833, and coming down to October, 1849, being nineteen printed pages.) The plaintiff’s counsel, further to maintain and prove said issue on their part, called the following witnesses, who, being severally duly sworn, testified as follows. A. B. Mead testified that he was assistant appraiser from about the fall of 1846 to the fall of 1849, and during that time had the almost exclusive charge of appraising iron and other metals, “ and that, under the instructions of the Secretary of the Treasury, the examiners and appraisers at the port of New York have in all cases been required, under the provisions of the tariffs of 1842 and 1846, to ascertain, and appraise, and report, the wholesale market values of all merchandise in the principal markets of the country of production or manufacture, at the period of the exportation of the* merchandise to the United States, and not at the period of the purchase or production of the merchandise in the country whence imported, and that such has been the uniform practice up to this time, so far as known to the deponent.” G. F. Thompson testified that he was assistant appraiser of the port of New York from 1844 to June, 1848, and that, under the instructions of the Secretary of the Treasury, the examiners and appraisers at the port of New York have in all cases been required, under the provisions of the tariffs of 1842 and 1846, to. ascertain, and appraise, and report, the wholesale market values of all merchandise in the principal markets of the country of production or manufacture, at the period of the exportation of the merchandise to the United States, and not at the period of the purchase or production of the merchandise in the country whence imported, and that such has been the uniform, practice up to this time, so far as known to the deponent. SamueLJ. Willis testified that he was one of the principal appraisers at the port of New York from the year 1844 to July, 1849, and that, under the instructions of the Secretary of. the Treasury, the. examiners and appraisers of the port -of New York have in all cases been required, under the provisions of the tariffs of 1842 and 1846, to ascertain- and appraise, and report, the wholesale market values of all merchandise in the principal markets of the country of production or manufacture, at the period of the exportation of the merchandise in the country whence imported, and that such has been the uniform practice up to this time, so far as known to the deponent; The counsel for said plaintiffs then rested, and the counsel for said defendant thereupon insisted and prayed the court to' charge and instruct the jury, as matter of law, as follows: — 1. That the payment made in this case by the plaintiffs .to the defendant was a voluntary, and not a coercive payment; and so that the plaintiffs could not maintain their action ; that thé evidence showed that the collector had been entirely passive in this whole matter, and had done no act, and made no demand, which compelled the plaintiffs to-pay the entire amount, which they did pay upon their own advisement; that the collector merely received the sum tendered to him by the plaintiffs,' and never made the payment a condition precedent to the delivery of the goods, nor threatened to raise the valuation expressed on the face of the invoice ; all that was done was done by the plaintiffs themselves voluntarily, without the least coercion or action on the part of the defendant, and that the verdict should therefore be in his favor. 2. That the acts done by the collector were all done in obedience, to written instructions made by circulars addressed by the Secretary of the Treasury to the collector (which are set out in schedule Z, annexed to this case), and in compliance with the acts of Congress therein referred to. That these instructions had all the authority of law, so far as the collector was concerned, and he could not disobey them. That all the money received by the collector in this case was collected by him in obedience to law, and paid immediately into the Treasury of the United States under a like compulsion, and that the collector could not be made liable to refund any part of this money to the plaintiffs, even although the construction put upon the revenue laws by the Secretary of the Treasury may have been erroneous. That the act of Congress approved February 26th, 1845, en-' titled “ An Act explanatory of an Act making appropriations for the civil and diplomatic expenses of government for the year one thousand eight hundred and thirty-nine,” did not apply to this case the defendant being compelled, by laws passed by Congress subsequently to that year, to pay over without delay into the: Treasury of the'United States all moneys received by him as'tíollectóp.arid that by authority of the case of Carey v. Curtiss (reported'in‘the third of Hammond’s Reports, page 236) the defendant cojfld'not be made liable in this, action. 3. That there was. no error in the proceedings at the customhouse, the valuation there made being the true valuation according to law, and hence this action could not be maintained. Whereupon the court then and there charged and instructed the jury, that by law duties were only to be assessed upon the actual market value of the said plantain bark, or hemp, and sugar, at the time of their purchase by the plaintiffs, and not upon such market value at the time of their shipment by them ; and that the payment of duties by the plaintiffs upon the increased amount, being the difference between such market value at the time of shipment and at the time of purchase, was, on the part of the plaintiffs, a -payment by coercion, and having been accompanied with the' protest, the plaintiffs were entitled to a verdict for the sum paid as duties on .such increased amount, with interest thereon from the' date of its payment; that the fact that the defendant, in taking duties upon the market value pf the merchandise at the time of shipment, had acted in obedience to the circular instructions to that effect from the Secretary of the Treasury, did not render' such mode of assessment of duties legal, or preclude the plaintiffs from recovering the excess paid by them above the duties upon the market value of the merchandise at the time of its purchase. And the court further refused to charge or instruct the jury in conformity with the points insisted upon by the- defendant’s counsel, and in conformity with which he had prayed the court to charge and instruct the jury as aforesaid. And thb counsel for said defendant then and there excepted ~to-the said charge of the court, and to the refusal of the court to charge the jury i-n conformity with which the said counsel had so prayed the court to charge the jury, as aforesaid. And thereupon the jurors of the jury aforesaid found a verdict for the plaintiffs for three thousand two hundred and six dollars and forty-four cents. And because the said several matters so offered and given in evidence, and the matters insisted upon by the said defendant, and the decision of the said court, and the charge of the said court, and the said exceptions taken to the same, do not appear by the record of the verdict aforesaid, the said defendant has caused the same to be written on this bill of exceptions, to be annexed to said record, and has prayed the said justice, holding the said court, to set his hand and seal to the same. Whereupon the said, the honorable Samuel Nelson, the associate jus-' tice before whom the said issue was tried, and the said exceptions were taken, has hereto set his hand and seal, this 2d day of January, in the year 1851. S. Nelson, jb. s.] Upon this bill of exception, the case came up to this court.