1>42 ,"
, FEDERAL REPORTER,
,vol. 48.
(ofl limitations,' -alid.allow: ,the claim:. as; described i in ,theaet .to .be passed :ti.ptin withthe'sameeffeet as .i{,it-,'had beeD presented 'withindthe time limitlid:;!ornot,'only to do this" 1>o:t\' in addition; to givd'plaintiff.s the right to; interest, which' they did: noM,hen ihave;ancJ could not there had been nabar ofthe statute It seems to,rne:.theproper'constructiomof ,the actisthateorigres8 only intended to prevent the: Bta.tuteof limitation·by. allowing :the Claim to' and paSsed. upon. with the same effect 8S if: there was no 8uch/statute.,and did not' intend inorease ,plaintiff&' by giving allemand ,made'in 1890 the'same e:lfect,:asto interest, as if it had been maqe! in 1872. ' IJ am the opinionthMthe law, as announcedin :Erskine v'.' Van ArBdale, 15 Wall. 7S, has been somewhat modified, astointereston taxes illegallY' ,by the hiter cases. See U.. S. ,v. Bnyard, 12'1 U.S .· 260;' v. Barna, 43>F-ed.Rep; 281. But, assuming {he law as laid down by Chief ticeCHASE is, unmodifioo, ,the plaintiffs cannot recov,er interest in this case, because they have, not taken the 'necessary steps to entitle them to it,.:and the act of June, 1890, has not:given it to them. We conclude, thetefore, thatdefendante' dcmuNermust be sustained to the entire claimandp.etition, and it is so
E. D. Vtrlltnta;Januarr, 1889.' --LnrITATIONll.
011 TAiBS:lLLEGALLY
OJ' CuIJIS
A for the refUllding al16Red. to have, ibeen illegally collected Willi MadEl to the CODlDiissioner of internal revenue upon tor;pl '1,7, pre!\cribed by the de'ptU'tment: for claims "for the remlsaionoftaxes impropel'ly assessed," instead of '. upon form 46, for claim I, "for taxe/! was, rejected. After II 'long delll.y. \laused,by losll'of paperS by the department, 11. was at. length presonted 'oaform.46, aupported by the prope1'ialidavits.Act Canll. July 18,1l:l66, c. 184, § 19, as amended by Act Congo June 6, 1872, c. 1l15, §.44; declarellt.hat no suit shall be maintained t9 ,recover taxes illegally co,ijected until olaim hIlS been made to the commisllioner 'and a decision had thereon, Or until tl1e decision has been delayed for more slx months; ImQ, that nosU,it WI1 be ,brought more than one year ,after hisdacisiOn. Held, that tbeclaim Willi not in shape for c:I,ecision on the merltll Un·.til th.e lallt. p.1 'esentation, ,and. the dellislon be.ing delayed .more .th.ail sbc .months, l .sllit could be brought, notwithstanding ,that ,more than a yesl' had elapsed since the .:firllt rej611tion. alld that tl1Ei'commissionel' refused to aot on 1;l1e ground that the :first rejeetionwas'llnaL " i
At LaW. Action by S.D. Hicks againf\t the administratrix of William James, deceased, to recover taxes alleged to have been illegally collected by him as United Statesinternahevenue co11ectol';at Richmond. Va. Upon, the subject of refunding taxes,. Act Congo July 13, 1866, c. 184, as,now embodied in Rev. St. U.S. § 3220, provides, among other thingsi'that "the commissioner of internal revenue, subject to regulations prescribed by the secretary of-the treasury ,is authorized, on appeal to hinlmade, to remit, refund,and: pay back all taxes erroneously
.HICKS tI. JAMES' ADM'X.
548
oriUegally assesse(l or collected, all penalties colIetlted without authority, aud all taxes· that appear to be unjustly assessed or excessive in amount or in any manner wrongfully collected." Section 19 of the same act, as amenaed by theaet 'of June 6,1872, c. 315, § 44, (Rev. St. U. S. § 3226,) provides, in substance, that no suit shall be brought to recover .taxes· illegally. or erroneously collected , unless an appeal has first been takentcl>,the of internal· revenue, and a decision thereon had by him: provided, that a suit may nevertheless be brought ifhisdecision is delayed more than six montbs,but no suit shall be brought more than a year after a claim is rejeoted. L: HUGHES,
:'
J.
This is an action for the recovery of88,292.95, claimed
to bavebeenillegally collected· for taxes claimed to haV'ebeen not really due,olr218i boxes of manufactured tobacco, which were claimed to
have been removed from the place of manufacture previously to the 1St September, 1862, ,and therefore. not subject to the tax imposed by the act of Jtily 1, provide internal revenue," etc. The defendant's intestate, William Jalnes, was collector of internal ,revenue at Rich.. mond,Va., and the taXWlfS paid by the plaintiff, under protest, in October, 1865, to him as collector. A claim, dated December 23,1865, was filed in the office of the commissioner of internal revenue at Washingtonbythe plaintiff on the 8th February, 1866, fodhisidentical sum of $3,292.95. That ;claim was made on form 47 "entitled "For the remission of taxes impl'operly assessed, "which, under regulations of the department, was; and is used only in cases. where"the amount of taxes assessed is alleged to have been excessive; and the claim is only for the reduction of the assessment, but not for th$ refunding of taxes which have already been actually paid. It seems that plaintiff's attorneyor,agent in the matter, confounded form 47 with form 46, which latter mthe form required by tbe regulations of the department to be used where the chtHn is for the refunding of taxes already paid to the oolleclor, its caption being ','Claim for taxes improperly paid." This claim; for the fJorrection of an assessment was formally rejected by the commissioner of internaL revepue, because; as I presume, it was made oli a wtong form·.. Itwas rejected by a. letter from 1 the commissioner to the collector dated the 10th of May, :Soole time after the filing of this claim, to'o:wit, ou;the 9th of March, 1866,'itheplaintifffiled his claim :iulthe officeofi the commissioner, made out this time on the proper supported by the certificate either of the assessor; or or collector of the'district, which is required to ao'sllch, -claim; by regulations of the department. This claim was aJso rejected ·by the commissioner, in the same letter of1\1ay 1O;.1866,:already mentioned.'" It, was rejeoted, I presume, because' of itS lackfoUhe of some proper officer of the revenue in the district, as required ,by regulatidns of the Afterwards, to-wit; on the 8,th,day;.ofJanuary,,1868,the claim was again filed with the commisSioner by the plaintiff, this time on the prop6l' form,--46,-and this: ,time accompanied, by the certificate: ofthe proper' officer, a.s required
044
REPORTER.
vol. 48.
bytbercgulations of· the department. Thus it seeins this claim was never; until JaI).uary 8, 18GS, before the department in II: form in which it could" be considered and rejected on , its merits, in accordance with what I con,ceLve to be .the meaning of section 19 of the act of July 13, 1866, (14 St. at Large, 152.) .Somewhat voluminQl:ls uffidavits and proofs were filed in support of this claim; butthe pupere belonging to it were by some accident lost by the department, and Were afterwards imperfectlysubstituted and supplemented by other, papers. Mucbdelay resulted from this accident, during which counsel for the plaintiff,though quite persistent, was unable to obtain a consideration (or reconsideration) of the claim by the commissioner. Such actionllcewa to have been prevented by.an awkward discrepancy of opinion be.tiw:een the commissioner and the counsel of plaintiff as to whetherornoUhis claim, had been 'rejected on the 10th of May, 1866. The commissioner insiste that it was rejected then, while counsel for plaintiff contends that· the claim was never before the cOO1missioner in form to be, considered on its merits until the 8th January; 1868, when it was properly, presen,ted on form 46,and sufficiently supported by official certification. I think myself that not until January :8,1868, did theplaintiffls claim came before the. department in a form in which it c6uld be. decided on its<merits. I think, moreover, that section .19 of the act ofJ,u1)d3,18G6,contemplatesthat before suit can be brought for therefunding.ofa tlncclaimed to have been improperly collected it mus.t have been rejected by the commissioner ofinternal revenue on its meritsjotherwise claimants could intentionally present their claims in irregular form for the purpose of enabling themselves, by their rejection, to bring suits in: thec@u;rts in contravention of the object of the law. The cla.im which plaintiff's agent or attorney made him present in February, 1866, on form 47, was ndt really the one he was entitled to make. It was not all improper asseSSffi'\tnt of the tax whjch he ,sought to have corrected, but the improper collection of 8 tax which he sdught to have The claim he presented on the 9th of March, rectified by 1866, on form 46, wQuldhave been the claim which the plaintiff was entitled to prefer in.the manner cantemplatl d by section 19 of the act of July, 1866, .but thiflclaim, by not having the certificate. required by the regulatiQtlS of the department,. was not before the commissioner in a manner in which it could .be considered on its merits, or considered at all, except for, the purpose of rejection for irregularity. The claim, therefore, waabefore the commissioner for the first time in a .,manner to be considered on its merits, on January 8, 1868jand the only question is whether the commissioner's letter of January 22, 1879, was a rejection of the claim as filed on the 8th January of the preceding year. That letter erroneously treats the claim then filed as identical with that which had been filed two years before on the 8th February, 1866; and, in insisting, though erroneously, that the rejection of the claim ,on form 47 was a rejection of the subsequent claim preferred on form 46, was in fact and effect a rejectiQn of the llltter claim." That being so, and the claim of January 8, 1868, baving been before the commissioner for a longer
IN RE HOUDLETTE.
545
than 'six montbil,;it"is notbat-red either by section 19 of the act of July, 1866, :or section 4:4 ofthe act of June, 1872, (17 St. at Large,
257, 258.) Judgment must go accordingly.
In re (C-ftrcuft CoUrt,
HOUnLETTE
6t lIZ.
Massachusetts.' December 12, 1891.)
OtrSTOH8 DUTu:s-t-CL(SSI1!ICATION-SuFFIOmNCY Olr PROTEST.
collector ce$in "sb.ank steel," u.sed in tb.e manufacture of bootl,. and shoes; under paragraph l460fthe tariff act of October 1, 1890,and alsoimposed .. ,'an duty of onc-qUal'ter of a:cent per pound on the goods, as "cold-Tolled" steel, under paragraph 152. The importer protested against .the additional duty, and on appeal the bdardbi' goeneral appraisers held that the original classification' .was wrong, and thaUbegoOds.should have been entered undel.'plJ,ragraph 140, as "other. steel, " etc.. 'l'heyalsofoundthat they were. not sUbject to the additional lllity, but that the' protest was insufficient, because it failed to point out the proper classification. Bela that, as the objection was made only to the additional duty, .ancl"n!?tto,the originl/-l,class!fication, the imp'0rterwas not bqund to point out the errO'ttn tb.e latter, and the protest was sufficIent. . ... . . . ,. t'
Petition of F. A. Houdlette & Co. to review a decision of the board' of generaJ. appraisersss to the classification of certain imports. Reversed. J. P. 'Pueker, for petitiollers. Henry A."Wyman, Asst. U. S. Dist. Atty., for collector.
COLT,J.· This is a petition to review a debision of the board of genThe importation in queseralappraisers. Act June 10, 1890, tion is' knt>wnas "shank steel," and in the manufacture of boots and shoes,:' question for review by 'this court is raised under the third assignment of error in the petition, and relates to the sufficiency ' of the protest. It is 'admitted that the subject of importation is steel, in form or shape three to four inchesr wide, fifty to' sixty feet in length, thinner than No. 20 wire gauge; cold rolled,and ..taluedat three cents or less per pound. The collector classified theiD;lport that clause in paragraph 146· of· the net of October 1, 1890, which provides for "steel in aU forms and shapes not specially provided for in this act;" and it being of a vaJ;ue above two and two-tenths cents, and not above three cents, pet pound,: it was held subject to a duty of one and two-tenths cents per pOund. The coHector also imposed an additional duty of one-fourth of Qne cent· per pound, under paragraph 152 of said act,' which provides that on "all iron or steel bars or rods, of whatever shape or section, which are cold rolled, * * * there shall be paid one-fourth of one cent per pound in addition to the rates provided in this act." The importerE! duly protested against the imposition of this additional rate, upon the ground that the import was not steel in "bars or rods," within the commercial or any known understanding or application of these v.48F.no.7-35