Arnson v. Murphy

24 F. 355

• Court: U.S. Circuit Court for the District of Southern New York
• Decided: December 15, 1884
• Status: Published

Opinion

Coxe, J., (orally.)

The proposition comes back to the question which I hoped might be avoided in the case, namely, whether or not this provision of the statute is a limitation or a condition precedent; in other words, whether the burden is upon the plaintiffs to prove that the conditions of the statute have been fulfilled, or upon the defendant to prove that they have not been. I have reached a conclusion favorable to the defendant with regret, because this appears to be a meritorious case. But without the statute the plaintiffs have no standing in court. It is strictly a statutory proceeding, which they are required to follow, and, as I read the statute, there are three conditions to be fulfilled before the action can be maintained — First, a protest within 10 days; second, an appeal within 30 days; and, third, the action must be brought within 90 days after an adverse decision by the secretary of the treasury; or, if there has been no decision, the plaintiffs must prove that fact and that the action was commenced after 90 days from the appeal. I see no way to separate these conditions. It was evidently the intention of congress that dissatisfied parties should pursue their remedy before the department as far as possible. Therefore I must hold that it Is incumbent upon the plaintiffs, as a condition precedent to their recovery, to pro yq, first, that they protested; second, that they appealed; and, third, that the action was commenced at a time permitted by the statute.

Plaintiff s' Counsel. Of course I object to your honor’s decision, and take an exception on the part of the plaintiffs.

It does not appear that there was any decision.

The Court. To maintain your case you must show affirmatively that there was no decision.

Plaintiffs’ Counsel. To that we except.

Defendant’s Counsel. Are we to understand now that the plaintiffs are going on with their case?

Plaintiffs’ Counsel. Yes; I call Mr. Bernard Arnson.

Bernard Arnson, being duly sworn and examined as a witness for the plaintiffs, testifies:

Question. You are one of the plaintiffs in the suit? Answer. Yes, sir. Q. Did you ever receive any notice, prior to the commencement of the suit, of the decision on your appeals from the decision of the collector of the port on the importations involved in this action — notice of the secretary of the treasury’s decisions?

Defendant’s Counsel. We object to that on the ground that it is immaterial whether the decision was received or not.

The Court. I think the objection is well taken. It is not incumbent upon the secretary to communicate his decision.

Plaintiffs’ counsel excepts.

Upon the application of defendant’s counsel to direct a verdict in favor of the defendant, the court said:

Gentlemen of the Jury: Upon the' question of law in this case, there being no question of fact, the court has decided that this action is a statutory one, and the statutory conditions have not been performed by the plaintiffs; you will therefore render a verdict in favor of the defendant.

Under the directions of the court the jury so found.