Stern v. United States

49 Cust. Ct. 167, 1962 Cust. Ct. LEXIS 1215

• Court: United States Customs Court
• Decided: June 28, 1962
• Docket: No. 66881; protest 61/9247
• Status: Published

Opinions

Richardson, Judge:

In an affidavit, dated May 23, 1962, James B. Herzog states that S. Stern, Henry & Co., a partnership, is the owner and principal involved in the entry. He also states in his affidavit:

* * * Deponent further points out to the court that the amount of duty deposited with the collector at the time of entry was the plaintiff’s [ S. Stern, Henry & Co.] and that therefore, both the plaintiff and the deponent have full and complete interest in that money.

In court, under oath, on December 18, 1961, James B. Herzog answered questions with respect to the money which it is sought to have the collector refund as follows:

Q. And does your partnership own the goods absolutely, or is your partnership functioning in a representative capacity for the ultimate consignee?— A. Functioning only in a representative capacity.

Q. And that ultimate consignee is Amerex Trading Corp. ? — A. Yes, it is.

Q. Assuming that you are successful on behalf of the ultimate consignee, there will be a refund. Now, who will receive that refund? — A. Stern Henry & Co. will.

Q. Will it hold it for Stern Henry & Co. or will it remit a part or all of it to the Amerex Trading Corp.?. — -A. It will remit all of it immediately to the Amerex Trading Corp. [R. 4-5.]

James B. Herzog’s affidavit of May 23, 1962, and his statement in court, under oath December 18, 1961, are in direct conflict, to say the least. The court informed James B. Herzog when he was placed under oath December 18,1961, that the reason for so doing was ‘‘to have an evidentiary basis for whatever ruling the Court might see fit to make.” (R. 2.) The court has ruled on James B. Herzog’s statement under oath in court, Abstract 66718, on April 24, 1962 (not April 27, 1962, as stated in the moving papers), and does not find information in plaintiff’s affidavit to warrant changing its ruling. In making its ruling, the court was not unmindful of the instances to which plaintiff alludes where partnerships, other than members of the bar, have, on some occasions in the past in the Customs Court, submitted their cases on a stipulation with the Government, and the court so stated in Abstract 66718, in volume 97 of Treasury Decisions, No. 18, at page 33 (48 Cust. Ct. 430).

The power to define and regulate the practice of law is inherent in the court. It is necessary that the court have this power for the protection of the court, the proper administration of justice, the public good, the dignity of the profession, and the protection of clients; and statutes giving corporations or partnerships the power to sue and be sued as natural persons do not confer upon such business units the right to appear pro se.

Oliner v. Mid-town Promoters, Inc., 2 N.Y. (2d) 63, 138 N.E. (2d) 217

Opinion of the Justices, 289 Mass. 606, 194 N.E. 313

Clark v. Austin, 340 Mo. 467, 101 S.W. (2d) 977

State ex rel. Green v. Brown (Ohio), 180 N.E. (2d) 157

Also, the Customs Court holds attorneys who practice before it to a high standard of professional responsibility, in accordance with the Canons of Professional Ethics of the organized bar which have been the growth of long experience. It cannot abdicate its responsibility and disregard the intent of the Canons of Professional Ethics and permit unauthorized persons to practice law.