Lothrop v. United States

164 F. 99, 1908 U.S. App. LEXIS 4614

• Court: U.S. Circuit Court for the District of Massachusetts
• Decided: July 27, 1908
• Docket: No. 236 (1,941)
• Status: Published

Opinion

LOWELL, Circuit Judge.

The petitioner imported fishhooks which were assessed for duty at 1% cents per pound, and 40 per cent, ad valorem. Against the payment of this duty he protested as follows :

“I hereby protest against the payment of a duty of one and one quarter (1%) cents per pound and 40% add-valurem [ad valorem] on certain Fish Hooks, under paragraph 137 of the Tariff, 1897.

“These hooks were imported into Boston, Dec. 23rd, 1905, from England and brought into this district under Immediate Transportation, Entry No. 3,226, and entered for consumption here, Entry No. 70, dated Dec. 27th, 1905.

“I claim that as the wire in said Hooks cost less than four cents (40) per pound, that, duty should only be paid under the .first section of said paragraph 137, and no add-valurem [ad valorem] duty collected.”

The Board of General Appraisers sustained the collector, upon the ground that the protest was insufficient. It is admitted that the goods were dutiable under paragraph 137 of the Dingley act, which reads as follows:

“Round iron or steel wire, not smaller than number thirteen wire gauge, one and one-fourth cents per pound; smaller than number thirteen and not smaller than number sixteen wire gauge, one and one-half cents.per pound; smaller than number sixteen wire gauge, two cents per pound: Provided, that all the foregoing valued at more than four cents per pound shall pay forty per centum ad valorem. Iron or steel or other wire not specially provided for in this act, including such as is commonly known as hat wire, or bonnet wire, crinoline wire, corset wire, needle wire, piano wire, clock wire, and watch wire, whether flat or otherwise, and corset clasps, corset steels and dress steels, and sheet steel in strips, twenty five one thousandths of an inch, thick or thinner,1 any of the foregoing, whether uncovered or covered with cotton, silk, metal, or other material, valued at more than four cents per pound, forty-five per centum ad valorem: Provided, that articles manufactured from iron, steel, brass, or copper wire, shall pay the rate of duty imposed upon the wire used in the manufacture of such articles, and in addition thereto one and one-fourth cents per pound, except that wire rope and wire strand shall pay the maximum rate of duty which would be imposed upon any wire used in the manufacture thereof, and in addition thereto one cent per pound; and on iron or steel wire coated with zinc, tin, or any other metal, two tenths of one cent per pound in addition to the rate imposed on the wire from which it is made.”

The collector imposed a duty (1) of 1% cents per pound for the wire; (2) 1J4 cents per pound additional for the manufacture; and (3) 40 per cent, ad valorem. It is not disputed that (1) and (2) were correctly imposed, nor that the importation should have been admitted without payment of (3). The collector’s mistake in adding (3) is conceded.

The United States contends that the protest did not set out distinctly and specifically the reasons for the importer’s objections to the collector’s liquidation. It contends, in effect, that the protest was unintelligible. But, if the protest be read in connection with the paragraph cited therein, its meaning is plain, notwithstanding its imperfect expression. The importer’s protest was against an ad valorem duty upon fishhooks, imposed because the wire in the hooks cost more than four cents per pound. The protest alleged that the wire cost less than 4 cents per pound. If so, no ad valorem duty was payable, and the wire fishhooks were made liable only to a specific duty. If the collector had had before him nothing but the protest and! paragraph 137, I believe that he could not reasonably have failed to know the grounds of the importer’s objection to the liquidation.

If this is true, it is not necessary to consider how far the court may take into account that the collector knew in fact perfectly well what the protest meant. If the object of the protest be to notify the collector of the true nature and character of the importer’s objection, the fact that the collector understood the protest would seem to be relevant. This view of the law appears to be borne out by the language of the opinions in Schell v. Fauche, 138 U. S. 562, 11 Sup. Ct. 376, 34 L. Ed. 1040; Davies v. Arthur, 96 U. S. 148, 24 L. Ed. 758; Arthur v. Morgan, 112 U. S. 495, 5 Sup. Ct. 241, 28 L. Ed. 825; U. S. v. Salambier, 170 U. S. 621, 18 Sup. Ct. 771, 42 L. Ed. 1167; Burgess v. Converse, 2 Curt. 216, Fed. Cas. No. 2,151; In re Hagop Bogigian Co. (C. C.) 104 Fed. 75. U. S. v. Schefer (C. C.) 71 Fed. 959, decided only that the collector has no authority to absolve the importer from the duty of filing a protest within the statutory period as the prerequisite of a refund of duties. The case did not decide that the collector’s state of mind cannot be inquired into in order to determine if a protest is unintelligible to him. According to section 14 of the customs administrative act (Act June 10, 1890, c. 407, 26 Stat. 137 [U. S. Comp. St. 1901, p. 1933]), it is hard to see what authority the collector has to modify his liquidation after receipt of the protest,, or, indeed, what he can do with the protest, except forward it immediately to the Board of General Appraisers. But undoubtedly the practice has always permitted reliquidation by the' collector after the protest is received. By the customs administrative act that protest must, indeed, be filed after liquidation, but not necessarily after payment of the duties.'

Whether we consider the language of the protest or the effect which it produced upon the collector’s mind, the requirements "of the act were met.

The judgment of the Board of General Appraisers is reversed.