Bartlett v. Kane

THIS case came up by writ of error, from the Circuit Court of the United States for the District of Maryland.

It was an action brought by Bartlett against Kane, who was the collector of the port of Baltimore, for the refunding of certain duties alleged to be illegally exacted upon the importation of Peruvian bark.

The circumstances of the case are fully stated in the opinion of the court.

It was argued by Mr. Brune and Mr. Brown, for the plaintiff in error, and by Mr. Cushing, (Attorney-General,) for the defendant.

The points and authorities relied upon by the counsel for the plaintiff in error, were the following:

1st. That the true dutiable value of the goods imported by the plaintiff in error, which were the production of Bolivia, and exported from that country by Messrs. Pinto & Co., to whom they belonged, was their market value in Bolivia, at the time of their procurement by Messrs. Pinto & Co.

2d. That if said goods are to be considered as exported from Peru, their true dutiable value was their market value in Bolivia at the date of their exportation from Peru; and the court below, which seems to consider them as exported from Peru, then erred in declaring that the law in such case fixes the duties upon the market value at the place of exportation.

3d. That as Bolivia was not an open market in which bark could be purchased during the continuance of the contracts between Pinto & Co. and the Bolivian government, the cost price to Messrs. Pinto & Co. of the said goods, under their contracts of monopoly with the Bolivian government, must be esteemed the market value of said goods in Bolivia, for the purpose of fixing the dutiable value of said goods, whether considered as exports from Bolivia or Peru.

4th. That the invoice value of said goods which was declared on the entry, and upon which duty was then paid by the agents of the plaintiff in error, is clearly shown, by the evidence, not only to have been greater than the cost price to Messrs. Pinto & Co. under their said contracts, but was also fully equal to the value of such goods in the markets of Peru up to the period of their shipment from that country.

5th. That whatever may be the rule of law establishing the true dutiable value of said goods, their dutiable value as mentioned in the invoice, duly verified and declared on the entry, must be deemed their true dutiable value until superseded by a valid appraisement, fixing a different value.

6th. That the appraisement by which the dutiable value of the said goods was raised, and the importer was subjected to the additional duty prescribed by the eighth section of the act of 1846, was illegal and void, and the duties thus claimed and paid under said appraisement, were illegally exacted.

7th. That the court below erred in refusing the plaintiff's second prayer, and in the opinion which was given to the jury, by which it decided as a matter of law, and without submitting any facts to be found by the jury that said appraisement was valid.

8th. That the non-compliance of the plaintiff in error with the requirements of the appraisers, contained in their letter of the 6th of October, 1849, did not make valid the illegal appraisement of his goods, previously made, and then still appealed from.

9th. That the court below erred in refusing to grant the plaintiff's third and fourth prayers; and also in the opinion which it gave, by which it instructed the jury absolutely, and without submitting any facts to be found by them, that the plaintiff, by his conduct, had fixed the correctness of the said appraisement.

10th. That the court erred in rejecting the plaintiff's fifth prayer, and in instructing the jury that the plaintiff was not entitled to recover any part of the sum exacted by the defendant in error, as additional duty under the eighth section of the act of 1846, upon the goods entered by the plaintiff for warehouseing and subsequently exported.

To maintain the first seven points, having reference to the true dutiable value of the goods, and the invalidity of the appraisement by which this value was raised, the plaintiff in error relies on the following acts of Congress: 1818, c. 79, 3 Stat. at Large, 433, and particularly to §§ 3, 4, 5, 9, 11, 12, 15, 16 and 17; 1823, c. 21, 3 Stat. at Large, 729, §§ 4, 5, 7, 8, 13, 14, 15, 16, 18, 19, 21; 1828, c. 55, 4 Stat. at Large, 270, §§ 8, 9; 1830, c. 147, 4 Stat. at Large, 409, §§ 1, 2, 3, 4; 1832, c. 227, 4 Stat. at Large, 583, §§ 7, 8, 15; 1833, c. 55, 4 Stat. at Large, 629, § 3; 1842, c. 270, 5 Stat. at Large, 548, §§ 16, 17, 21, 22, 23, 24; 1846, c. 74, 9 Stat. at Large, 42, §§ 1, 8, 11, schedule F.

And, by way of illustration, to the act of 1851, c. 38, 9 Stat. at Large, 629. And the Treasury Circular of the 27th of March, 1851, construing the same.

And the following authorities: Tappan v. The United States, 2 Mason, 396; Tappan v. The United States, 11 Wheat. 420 to 427; Tracy v. Swartwout, 10 Peters, 94, 95; Elliot v. Swartwout, Ib. 153-157; Marriott v. Brune, 9 Howard, 634, 635; Greely v. Thompson, 10 Howard, 225-241; Maxwell v. Griswold, Ib. 247 to 254; Reggio v. Greely, Mss. Mass. Circuit, June, 1851; Grinnell v. Lawrence, 1 Blatchford, 348-350.

To maintain his 8th and 9th points, the plaintiff in error refers to 1823, c. 21, 3 Stat. at Large, 729, §§ 16, 17; 1830, c. 147, 4 Stat. at Large, 409, § 3; 1832, c. 227, 4 Stat. at Large, 583, §§ 7, 8; 1842, c. 270, 5 Stat. at Large, 548, §§ 16, 17; 1848, c. 70, 9 Stat. at Large, 237.

And to Tappan v. The United States, 2 Mason, 403; Grinnell v. Lawrence, 1 Blatchford, 350; Tucker v. Kane, Mss. Md. Circuit; Reggio v. Greely, Mss. Mass. Circuit, June, 1851; Watson on Arbitrations, 59 Law Library, 36; Russell on Arbitrations, 63 Ib. 151; Tracy v. Swartwout, 10 Peters 95-96; Marriott v. Brune, 9 Howard, 634; Greely v. Thompson, 10 Howard, 229-238.

To maintain his 10th point he refers to the acts of 1799, c. 22, 1 Stat. at Large, 627, particularly §§ 56, 75, 76, 77, 78, 80, 81, 84; 1816, c. 107, 3 Stat. at Large, 310, § 4; 1818, c. 129, 3 Stat. at Large, 467; 1823, c. 21, 3 Stat. at Large, 729, §§ 28-37; 1830, c. 147, 4 Stat. at Large, 409, § 5; 1842, c. 270, 5 Stat. at Large, 548, §§ 12, 13, 15; 1846, c. 7, 9 Stat. at Large, 3, § 3; 1846, c. 84, 9 Stat. at Large, 53, §§ 1, 2; Treasury Circular of 12th June, 1847; Tremlett v. Adams, 13 Howard, 303.

The Attorney-General contended:

The said appraisement was final and conclusive upon the withdrawal of the appeal.

After enumerating the statutory provisions upon the subject, he said,

From the enactments of the statute, it is clear that the appraisement by the custom-house appraisers becomes final and conclusive upon either of these events; by the failure of the owner, importer, or consignee, to ask an appeal to merchant appraisers, or by withdrawing that appeal after taken, or by refusing to produce the letters or accounts relating to the goods imported.

The statute cannot be evaded by taking an appeal and then withdrawing it, with notice of an intent to bring the question of the true market value before the judicial tribunals; nor by taking an appeal, refusing to produce the letters and accounts required, and withdrawing the appeal under protest against the appraisement appealed from, with notice that the appellant means to contest the appraisement and present his documents, called for by the appraisers, before a tribunal other than the merchant appraisers.

The statute has provided the appellate tribunal to settle finally the question of the true market value of the goods when the importer, owner, or consignee is dissatisfied with the appraisement, by the custom-house appraisers. That final appellate tribunal is to consist of merchants, 'two discreet and experienced merchants, citizens of the United States, familiar with the character and value of the goods in question.' The ingenuity of the plaintiff cannot draw this question ad aliud examen.

The plaintiff says, 'In looking more carefully to the requisition of your appraisers of bark per St. Joseph, I find that I shall have to have copied and translated a mass of correspondence from January last, when it was shipped, to August, (for reference to it is made in all my letters from Pinto & Co., and Alsop & Co.); and in order the more fully to explain Pinto & Co.'s mode of invoicing their bark, I shall have to present a series of documents, commencing in 1847, with their contract with the Bolivian government, proving its actual cost to be about $60 per quintal: all these are necessary to make out my own case, and I am unwilling to present less than all the documents. I do not see, however, of what use they can be at present to the appraisers, who have already made up their valuation of the bark, and made a return to the collector. I shall therefore defer the presentation of my documents for another tribunal, and not lose more time in delivering the bark to the purchaser. I wish you to inform the collector that by my instructions your appeal is withdrawn, and that you are prepared to pay, under protest, whatever duties may be exacted on the bark. . . .. At leisure we can then test the question of this exaction.'

In plaintiff's second letter to his agents, he says: 'One reason I have for taking the course directed in my letter of this date is, that my counsel informs me that I can more easily get the bark case into court before the appeal appraisement be resorted to than afterwards. Some of our judges have held that an appeal appraisement is final and conclusive.'

The plaintiff professed not to see what use could be made of the letters and correspondence called for after the appraisement by the custom-house appraisers had been reported to the collector. It would have been useful evidence before the merchant appraisers if the plaintiff had not withdrawn his appeal rather than to produce those letters, accounts, and correspondence. They might have enlightened the merchant appraisers. They might have enlightened the custom-house appraisers to amend or correct their report to the collector, for the duties were not then fixed and imposted. Did the plaintiff conjecture that the merchant appraisers, to whom he had appealed, were to decide without hearing any evidence? That the government was debarred from introducing evidence to sustain the appraisement appealed from?

The pretences in the plaintiff's letter of inability to see the use to be made of the letters and correspondence called for; that he would 'defer the presentation of the documents for another tribunal' than the merchant appraisers, and that he could 'more easily get the bark case into court before the appeal appraisement be resorted to than afterwards,' cannot enable the plaintiff to evade the force and effect of the seventeenth section of the act of 1842.

The 'actual market value or wholesale price,' at the time when the article was purchased, in the principal markets of the country from which the same shall have been imported into the United States, is a question of fact, not of law.

The sixteenth and seventeenth sections of the act quoted plainly make the ascertainment of that fact an executive function; an administrative, not a judicial process. The particular executive and administrative jurisdiction and process are carefully specified in the law in a manner to exclude all other jurisdictions, and to make the ascertainment of the fact, by that particular jurisdiction, 'final and conclusive.'

The statute, if the owner, importer, or consignee be dissatisfied with the appraisement of the goods, has given a remedy by an appeal, 'forthwith,' to merchant appraisers: Expressio unius est exclusio alterius. The express mention of the one remedy is the exclusion of another. Co. Litt. 210; Broom's Legal Maxims, 515, 516; the King v. Cunningham, 5 East, 478, 480; the King v. the Justices of Surrey, 2 Durnf. & E. 510; Cates v. Knight, and same v. Mellish, 3 Durn. & E. 444.

The fact to be thus ascertained is of vital importance to the revenue. The means given are necessary to protect the revenue from diminution by evasions and frauds requiring promptitude. The Congress have intended that the fact shall be speedily ascertained and adjusted, finally and conclusively fixed 'forthwith,' as quickly as may be after the master of the vessel shall have made entry of the cargo, as it were velis levatis; for it is a fact preceding the computation and payment of the duties; in its nature, purpose, and effect, an executive and administrative business. The views and ends intended in this respect cannot be answered by the dilatory proceedings of the courts.

II. No drawback is recoverable of the penal duty of twenty per cent. in addition to the regular duty inflicted by law, and paid on one hundred and twenty-five seroons of bark afterwards re exported from the port of Baltimore to foreign parts.

The duty of fifteen per cent. ad valorem has been refunded upon the seroons of bark so re exported to foreign parts.

This question as to the penal duty is so plain, as to afford little room for argument. The twenty per cent. is a rated penalty, inflicted for an attempt to defraud the revenue by an invoice and entry of the goods at the custom-house at an undervalue.

After the fact committed, the fraud detected, and the penalty paid, the party cannot demolish the fact, wipe out the fraud, and claim that the penalty shall be remitted because he has found it for his interest to re export the merchandise to a foreign country. By such a construction of the statute, the law would be stripped of its sanction, and terror to offenders.

The construction given by the Secretary of the Treasury, (Mr. Walker,) in his circular of the 12th of June, 1847, to the collectors, pp. 36, 37, is, that this is a 'penal duty.'. . . 'This penal duty is not a subject of drawback, and cannot be returned on debenture:'. . . 'such penalty is never returned on exportation of such goods.'

On October 25, 1849, plaintiff applied to the Secretary of the Treasury (Mr. Meredith) for instructions to the collector to return 'the excess of duty above that which would have accrued on the original and true invoice of the bark,' pp. 13 to 15. To this the Secretary wrote to the collector the letter of February 14, 1850, p. 15, and to the plaintiff the letter of same date, p. 16, in which he instructed the collector, and answered the plaintiff, 'that the 'additional duty' imposed in all cases of undervaluation, to a certain extent, was intended, and must be considered as entirely distinct in character and object from the regular tariff rates of duty exclusively in view when the law regulating the drawback of duties was enacted; and that consequently no return of such 'additional duty' could be legally made as debenture. It is thought proper to add, that the practice heretofore pursued, under the instructions of the department, has been uniformly governed by these views.'The views above quoted are not binding on this court. As contemporaneous constructions of the department charged by law with superintending the collection of the revenue from customs, however, they will draw forth the serious deliberations of this court, and will be suffered to stand unless some good cause can be found to the contrary.

Mr. Justice CAMPBELL delivered the opinion of the court.