Kendall v. Lyman

161 F. 652, 1908 U.S. App. LEXIS 4373

Opinion

COLT, Circuit Judge.

Under the agreed statement of facts I have-reached the following conclusions:

1. Section 21 of the act of June 22, 1874, c. 391, 18 Stat. 190 (U. S. Comp. St. 1901, p. 1986), has no application to this case, because the statute is limited to cases in which no protest has been filed. Gulbenkian v. Stranahan, United States Circuit Court, Southern District of New York, April 29, 1907 (T. D. 28,451) 158 Fed. 836; Klumpp v. Thomas (United States Circuit Court, Eastern District of Pennsylvania, February 25, 1907) T. D. 28,453, 162 Fed. --; Klumpp v. Thomas (United States Circuit Court, Eastern District of Pennsylvania, February 11, 1908) T. D. 28,818, 162 Fed. --.

2. The Secretary of the Treasury had the power to order the reliquidation of November 23, 1905, since this case is clearly governed by-the decision of the Supreme Court in United States v. Whitridge, 197 U. S. 135, 25 Sup. Ct. 406, 49 L. Ed. 696 (T. D. 26,126).

' 3. Since there was a technical breach of duty in the failure of the collector to transmit the papers to the Board of General Appraisers, as-required by section 14 of the customs administrative act of 1890, judgment should be entered for the plaintiff for nominal damages in the: sum of $1.