Jl'EDE&AL REl'ORTER. :
, lbnl)EN , .j-,
ISELIN and D. New York. June 28, 188il , . '.,
1.
I. 8.um-ILLEGAL FEES-SECTION 2636. REv. ST.
2980, REv. ST. Bectioll'2000, Rev. :St. U. S., provides that, where all.' importer is dissaUsanapp!-,afsement. he may forthwith give notice in writing to the tied collector, Who, on' receipt thereof, shall select one discreet and experienced merch{uit, fainiliarwith the character and value oftha goods in question, to be associated with one of the general appraisers. to examine and appraise themithe.collector, ,in cal!e t4ey disagree, to decide between them; and that such shaUbil' final. There is no statute declaring who shall pay the merChant appraiser, but article 472, Regulations Sect. Treas. 1883, d.irects · n19l'to deliver mel'ch!o'-pdise reappraised with,out payment of the fees of appraJser by the Importer, at the rate of five dollara , :M" (lier[l,;Held, that sucli'charge on the importer is an unlawful exaction, and that thli:expenses of reappraisement must be b.orne by the government. .FuliJAn Vi,.[6J'H'''.41J-CiJ, 3 RBVENbiit LAWS-REAPPRAJSEMENT-FEES-SEOTION
Section 2686, Rev. S,t. U. S., provides tMt'"everyomcer of the customs who demands'oneceive8 dny other or greater fee, compensa.tioll, or reward than is all.0.Weq,bY la:w.."j,fQr: pe.dorm.in.lB:. .... duty or service of him. by lawc, shall be Ifable to a penalty of for each offense recoverable to the use or the'pltriy aggrieved.' Held; this section il1""COnnection with sec· tions 11187/2981; 2982; in pari materia. that it is intended to b.p-plr only to ex· not contemplate mulcting a collector tor a deposit tortion, and does to. cover the fees ofa. merCijant'appraiser, pursuanttotb.e regulatIOn of the s8cretiny:of the treasury. " '. ., , " ,.,'
.
,200
Ale:tander P. Ketchwm. for. defendants in error. Hf/n:fY OJ Platt, Asst. U. S.Atty., for plaintiff in error.
J., " This action was" in the <ii,strict court to rea penalty tmd'er the provisiQns of section 2636, Rev. St. U. S. Rep. 416.. The statuUil is as follows: "Every officer of tbe customs who demands or any other or greater ,f!*'. ·.or reward than by law for performing any duty ,W' serrice requil'oo from him bylaw, shall be liableto a penalty of $200 for each olIense, recoverable to the. use of the partJ" 'aggrieved. " A plaintiffs; arid the defendant blings this writpf error to entered tpe verdict. It appeared upon the trial, that in July , 1885, th!'l plaint#fs imported certain merchlmdise intpthe port of New York, of which port the defeJ;ldant .was. cqlle<;tor, wh,ich was appraised for duty in advance of the invoice valualiion. .Being dissatisfied with the appraisement, the plaintiffs gave notjce. of such dissatisfaction.to the collector, and at the same time deposited with a clerk' in the.cashier's office at the custom-house the sum of $10 wherewith to pay a fee of the merchant appraiser on the reappraisement. The collector was not present when the $10 was. so dep()site<i, .but. by a regulation pf: the, secretary of the treasury, (article 472, Regulations 1883,) cqllectors were directed not to permit a delivery to itnporters without payment of compensaa,t, the of five dollars per diem, to the merchant appraiser; and, pur:mant. to this regulation, and in order to secure such payment, it W COVel' , I
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was the practiqeof the to require such a deposit to. made. a merchant appraiser; the reappraiseThereupon the collector ment was made; the merchant appraiser was paid $2.50 for pensation; and the balance of the deposit was refunded to the ants ill error. The exaction of this sum of $2.50 is the foundation 0f the present suit. It was not claimed upon the trial that an excessive compensation was exacted for the services of the merchant. appraiser, but 'the theory of theiwthm was that there was no statute authorizing the payment of any compensation to a merchant appraiser, and therefOTe that nothing should have been exacted olthe plaintifl"as compensation for his semces. .. " . At the close of the evidence the judge instructed the jury, in substance, that there was no statute which authorized the imposition of any charge upon the plaintiffs for the reappraisement of merchandise; thatthe reappraisementwas a part of the system prescribed by law for ascertaining the value of importations; that it was a matter Of right for the importer to have a reappraisement whehdiFlsatisfied with the appraisers valuation; that it then became the collector's duty to appoint: a merchant apthat any charge for the services of the merchant a!?praiser muSt be bbrne by the government.' He subtnitted'two questions of fact to the jury, instructing them that they were to determine, -First, whether the paynientin question was a voluntary paymeritor hot;' and, secondly, whether the. coUedor received the. :money through. a subordinate a Among other instruccondition of going on with tM tions requested in behalf of the defendant, the judge waS requeste<i to direct the jUry to find a verdict for the defendant upon the grouPd that the evidence'Was not sufficientt6estabIishacause of action. The exceptionto this, instructi<?Jl is suffiCient, in the view takenof the meaning of the statute: imposing the penalty, to 'present the ,material'questions now brought up lor consideration. . ' . '. . Theplaintifl'in error now insists that the ruling of the district judge that the'charge' made fot' the. compensation 'of themerchllntappraiser was unauthorized, is error. This objection goes to the foundation of the action. The 'services fOlwhich compensation was exacted are performed by virtue pf section 2930, Rev. St. U. S. ,which provides that. if the impor1;etshfi.ll be dissatisfied with the appraisement he may forthwith give notice', tb the collector in writing, on the receipt of which the lector llhaU' select one discreet and experienced merchant, to. be associated with one of the general appraisers, familiar with the chariteter and value of Fhe goods in question, to examine and appraise the same; and if they disagree the collector shall decide between them,and the, 'appraisement thusdeterrninedshall be final, and deemed to be the ttuevalue. There'ieno specific provision of or bywhotn the tnerto chant appraiser thus selected is to be paid, or what be, allowed him Cor his services. Prior to the act of 1842, the merchant appraisers called in upon a reappraisement were employed by the irnp6tter, and.by the terms of his Own expense;" but thah,ct vested the selection ofthe merchant appraiser in the collector,
268
FE!)ERAL BEPORTER.
and did not contain the provisions existing for their sation. . Consequently that act lefttlw whole subject.oOheir compensation, and, whether it is to be paid by the importer or by.the government, to implication. As the discharge o£the duties devolving UpOil merchant appraisers was not compulsory, congress must have contemplated that they would not serve without compensation, and that they were to be paid either by the importer, as formerly, or by the government. Shortly after the enactment of the act of August 30, 1842, the ,question arose in this conrt whether the fees of merchant appraisers were to be paid by the importer, and itwas decided that a reappraisement under that act was at the expense of the importer, and he was bound to offer the fees of the appraiser in order to put the collector in the wrong for not ordering the reappraisement. : J!lielden v. Lawrence, 3 BIatchf. 120. This question, was, however, only incidentally under consideration in that case. and does not appear to nave been discussed by counsel; and, as ,the upoD; t4e other involved were decisive, its nation wl;1.s.not necessary to. the decision of the caSe, and ought not to be controllingn,Ow.· If there were any ,reason to suppose that the changes introd,uced ):,y the act of 1842 .had, brought to the. attention of the court,what Was,Elf;tid, ,altqouf;¥ f;Jl;iter, woqld be entitled to the higheaF respect, as ip.dicating of judges of great learning and great withiill questions respecting the interpretation and construction of the revenue laws. ." The in error reHes upon the construction of the law. adopted by the treasury department, and, as is claimed, consistently adhered to by that department ever since the act of August 30, went into effeet: The only evidence in the record. of this construction is found in the regulation of 1883, although there is no reason to doubt the stateI):lent in the brief of the attorney of the United States that this regulation embodies the practice of the treasury department ever since the act of +842 was passed; and this statement 1S not controverted by the counsel for the defendants in error. 'fhe concession does not materially assist t,he. plaintiffs in error. Although in the construction of a doubtful and anibiguous law the contemporaneous and continuous construction of those. who are called upon to act under the litw, an,d are appointed to its provisions into effect, is entitled togreat respect, (Edwards v.. Dq,r'by, 12 Wheat. 206; U.S. v. Moore, 95 U. S. 760; U. S. v. Hill, 120 U. St 169.· 7 Sup. Ct. Rep. 510.) their interpretation is only controlliIlg'Wbere the. language of the law' is ambiguous. The court must look to the laws themselves, and not to the construction placed upon them by. the heads of departments, although these are entitled to great respect, and will always be weighed. py the court in cases of doubt or ambiguity. There is ,no ambiguity, and nQfoom for difference of opinion. as to the of the language of section 2930, nor has there been since the act of 1842. Congress omitte,d to make any provisioJ;l subjecting the importer'to the expense of a reappraisement, or for the cornpensation of merchant appraisers, in the act of 1842, and has never made any since that act. This 'may have been an oversight, but it is not the province
of the court to correct It. Equally well it may the deliberate purpose. of congress not to subject the importer to the expense of a reappraisementwhen he was no longer permitted to select the merchant apr praisers. No principle is better settled than that,a tax, orcPllrge in the nature of a tax, upon citizen/can only be created ,by plain anp. ,explicit langu:;tge. Adams v. B.antYrojt, 3 Sum. 387. Here it WllSSQUght to be raised by silence. It, must be held that was no legal. authority for the exaction. , Although the fee charged for the services of merchant was ttn unlawful exaction,tlie pll}.intiffs were not entitled to recQver. the by The section is. obv:iollsly . to: impose a penalty as a punishment for extortion by 9fqcersof thecus.toms, and the mere statement of the su;ch a statutecoa. tem platea the mulcting of a collector for an actdone in the hon,eet char/:!:e of his duty , and in o.bOOienceto the regulMion of the Qf the tren$l:ury, suggests a doub,t whether. this is fairly CJl;Pab1e9f Iluch· an Unless the language,. read in comwctiQl1with other pwrimateria, requires such a meaning,At is"n.ot,;}{> bf.'l supposed that congress intended to visit an act whichthe.Jltw recognizes, as upright and penalty. It has alwaYl! beljln held that extortion proceedsonlY;fr01Pii8 corrupt mind. People v. Whaley, Cow. 661;Qnn. SMdj ::lM:aI>S. 227; Jacoq8 v. Oom., 2 Leigh. 709; Staw IV. Outter V. Swte,3.6N. J. Law, 125. " ' The section is a re-enact,ment of section 73 of the act of ;March The original provision has never been :repealed, firstfound a place among tbe statutes, the revenue laws have been: so completely remodeled in reference to the liability of the for duties, charges, or fees unlawfully exacted, and as respects the.remedies <;>f importers and others interested in contesting such the provision in question has long been practically obsolete. No. ion is found. in. the reports in which this statute has ever been,resorted. to as the foundation of an "aqtion; but suits to fees illegally e:ll;acted1;ly customs officers have been broughtinth El form oOhe action ,of assumpsit. Ogdep, v. MaxweU, 3 Blatchf. 319; Barbur v.$cheU, 107 U"S. 617, 2 Sup. q"Rep. 301. ,. ; By the act of March 3, 1863, § 12, (12 St. 741,) now pf the Revised Statutes, enacted that when, in any suit OJ; iog against a collector or other officer of the any aclcj.one,py him in the performance of pis official duty, the court certifies that,there was probable cause for the act done,or that he !lcted under of the secretary of the treasury or other proper officer. qf the government, no execution shall issue such collector or other officer" but the amount recovered shall, upon final judgment, be pll-id, out of the proper appropriation from the treasury. The effect of this statute a certificate isgiven,to practically; convert the suit against.theofficer into the U,niiedJftitates. U. S.v., S. <?6Q, a 567. However it may have Qf
,I
it· is plain' that of congress· do' not contemplate the punishment of an officet of!the'1'eVeI1Ue, hy penalty or otherwise, for any act d6neinthe honeWdischargaof his duty j oroin 6bedience to the di" rectionof'the 'head oftlie [department. ." , <WhfttiVaSleft of thestatnteof 1199; after the act of1S63, was still furthercul'tailed and by the act of June 30, 1864, now found'in'sections 2931, Re.vi St.U. S.· By that act (sections 14, 15) the decision of the collectors of customs, "as to all fees, charges, and exatltions of whatever! clainled· -them; or any officers under them, inJthe'perfohnande ofltheir official duty ,'was made" final and coniagaitist'Ollpe,rsons interested insllch fees,cbarges, or exactions," unleSS'a !p'I-0lefJt was' served 'and'ad ap})eal taken from the decision to the secretary' 'of the 'freaa\1lry.' " 'Fhel further provided that no suit should be maintained in any cSlUrt' for. of any such fees or charges oithe' secretary or unless-his decision should be delayed more than' 90 l days. The effect· of this act, ina suit brought'aga!itlSt a collector of customs to recover fees illegally exacted by !hirl1rwas 'considered ifi thi!l oonrt inShaw v. GrinneU, 9 Blatchf. 47i;and'it'wllsrheld thatthefeijg'liaving been exacted by the collector in the perfbfttJ.tlnce afhil!l' official duty, and the plaintiff not having taken an nppeai' to the secretal'Y of the treasury, the action could not be main." . . .. tained ,:alth6iigh the exaction, was illegal. , Thus it 'appears that at the ,tithe 'of the revision of the statutes in 1873 the decision of the collector was final as to the legality of the fee exacted of an unless an appeal!weretaken to the'secretary of the ury; landJ 'Whenever Ali officerofl the customs, or afiyother officer of the was!sued for' 'or doing any '6theract pursuant to the direotlbn6'f the head ofiMsdepai'tment, he was entitled to a certifi.:. catewM(jh in legal effect absolved him fron1. personal liability, and transof action into a demand against the government. To law of 1799 were supmiseded, and, if this 'extent tHe they bad not been reproduced itt:! the Revision, it would. seem doubtful whethertHetWiere' still: in' force. leAs; '. however; the !Jaw; was'retafned in thestatutes,'sod1e'effect and meaning must be given. to il'!':Blit it'is't6 be read Iiriconiiect1on with the provisions of the acts of 1863 and 1864, referred to, which 'are also'retaibfid'intheRevision. 'Reading tiaethree se,dtfc)nsJtogethe'r l(2686, 1987, llnd 2932) as in pari and' referehoo otlier provisions' of tlleRevised StatuteS 'Which lnfi:tstiH: more restricttbe. meaning of section 26'S6;'the only effect :that CliIibegiven' to thltt;sectioll'is: t6construe it Mauthorizing an action iwh'enhe has eiacted fees under circums1;aneeswhielrJdb'bO't entitle'hhn to'D. 'certificate 'pursuant to section 1987, 'antl 'after':tbe:person aggrieved has taken an appeal to secretary of the 'treasurypursalint to section 2932; . If, ' upon anll.ppealto the secretary t>f ,the't!eaatiryj' lthat officer adopts and sanctions the !act: of tbecollector orothe'tbfficer of 'customs charged with exacting an ,illegal fee, it may weli be exaction wasofa:chll'l'acter which entitles the -(j:ffilcef' WJtiltlel!tifica.te of probable cause. :. i "1,
DIAMOND ,MATCH, C9.,:'Il·· UbomD STATES.
:27,i
The evidence upopthertrial olthis did not <teqd .to mllke a case falling within the seotion as thusconstruEid. On the contrary"it showed that the defendant exacted' the fee charged for' the. services of the merchant appraiser in pursuance of the regulations :ofthe secretary of the treasury ·. The therefore entitled to,t1J.e .instruction that the evideuce,was notsuflieieht to establish a. qause ohctiQu. The judgment is' acoordingly reversed.
DIAMOND ;.: .
M,h'qz' 'Co·. v. ','.'
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.QtMrt, P. ,'"
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june2S, 1887.) ., "
BolO;)
RmVENtl1ll.
'b'nE'MNl'rY:..-Ex,\¢nOlf 'i' ,
Il'tT1i:1iNAL '.i ,,.. , '
,cost of Ulaut!factl,ue, advance o( ilf an sUllP1y' of d,hl-staIl1PS, ml),de in '\Vtth a regulatlon'of the commissIoner of internal revenue; and given by the obligol'i ia. order to obtain, in.the transaction of,hisib'usiness, an accommoda;· . . grant,co.mm,iSS.ion. \11 ,might pro. p that· it t.he . .. w., as not, legan,Y. fe" is 1?-0t up<>:n the ground. e;l'Cted. colOreoJicii, , 01"fol.' want of consIderatIon;" , ' . ,, ',.,,'
,4JWnd pf
Gr'ten·B; Raum, for-plaintiff. Lewis'ErStanton, U. S. Atty., fOl'the-United WALLACE, J. This writ of error is brought to review a'Judgment,or the .district court in. favor':Qf theUnitedStatea, and against the plaintiff in action WaB,' by istipl1lation,tried befere a referee., The findings of the referee Were confirmed by the district court. The: suit upon a .. : : "The conditions o:tthc,fpregoing are wbere,as, Companyis a proprietor of to and proV:isions Rev. St.U. f)., has without to the,·United Stl\tes ,ltsowndie!l,or designs .iorstam.P/il to be used and. whereae,tbesaid piamond,»atch CompanyJs,llesirous of avoiding the deli"Ys in tbe,receiptofsuch oft46 stamps as ,it, ,may from time to time orc)er, wh,ichwQul4, if the same were n?t printed anq prepared foriss l1 eprior tQthe bytheCQIU,mUlSioner of int,ernal revenue; ,whereas, the Matcll hilS requested, 01' may hereafter rwuest, the cO/UJAissioner of illternal, ;J.'!lvenue to. prepare, and hold, subject to its order! and tQkf#lP ,flit all of. the stamps a,fprfllilaid, times on hanti, an such supply haVing and filed with miSfi;iQner,Qt internal revenue by the the Diamond Now·. therefore,if. sai4 the :QiamQnd. Match Company shall.·' w:nenever requested. so.,. toc10: by, !'Il;\ijl commissJqner .of. intern;u revenlle.,well and truly pay. ,0.1' cause toqe P!\1P,to the tre3llurelJ of .for the use .of the United and every sucb li\um or. suml!! of, money as, the commissionelJof reyenue to have been paid by theJ]'nited States. for the ,p,aper, gumming! ,apd, perforating, and .preparj.Qg fOJ"