Presson v. Russell

Action at law by Edward T. Russell and Clarence B. Mitchell, copartners as Edward T. Russell & Company, against David S. Presson, collector of customs for the port of Gloucester, to recover back certain duties paid under protest. The case was submitted on an agreed statement, and judgment was rendered for plaintiffs. Defendant then brought the case to this court on error.

This was an action to recover duties alleged to have been unlawfully assessed, and was tried by the circuit court, without a jury, upon the following agreed statement of facts: 'The plaintiffs, on the nineteenth day of January, 1888, imported from Montreal, Can., into the port of St. Albans, Vt., one hundred barrels of dry salted codfish consigned to John S. Story, to be by him entered at the customhouse at St. Albans, and thence to be immediately transported in bond to the port of Gloucester, Mass., consigned to the plaintiffs. The goods were entered at the customhouse at St. Albans on the nineteenth day of January, 1888, by Story, as 'one hundred barrels pickled cod,' and were immediately transported in bond to Gloucester and entered by the plaintiffs at the customhouse in Gloucester. The fish were imported in dry flour or sugar barrels, incapable of containing liquids, and had never been pickled, but had been cured with dry salt, and were not at the time of their importation what is known as 'pickled fish,' but were dry salted fish; each barrel contained two hundred and thirty-eight pounds of fish. The defendant, then collector of customs for said port of Gloucester, demanded and collected upon each pound of said fish a duty of one cent, amounting in the whole to the sum of two hundred and thirty-eight dollars, a sum which the plaintiffs claimed was not due and payable as duties, and exacted payment of the same from the plaintiffs, who made payment thereof to the said defendant under protest and in order to obtain possession of said merchandise.

'The plaintiffs, being dissatisfied with the decision of the collector assessing the said duty upon the said fish, gave to him due and seasonable notice thereof in writing, setting forth therein distinctly and specifically the grounds of their objection thereto, and duly and seasonably appealed to the secretary of the treasury, who affirmed the said decision of the said collector, and the plaintiffs seasonably brought this suit to recover the said sum of one hundred and nineteen dollars, so exacted and paid to the said defendant for customs duty upon said fish.

'The writ and pleadings may be referred to; also, annexed copy of protest, and copy of invoice also annexed.

'Upon the foregoing facts it is agreed that the court may enter such judgment as the law requires.' The protest read thus: 'We understand that you have assessed duties at the rate of one cent per lb. as 'pickled fish,' whereas they are 'dry fish,' and the duty should be but one-half cent per 1b. We hereby protest against your assessment of one cent per 1b.,' etc.

The invoice stated the actual cost of the fish at $523.60.

The circuit court held that salt fish in barrels were not subject to duty under the tariff act of 1883, and gave judgment for the plaintiff in the sum of $238, to review which this writ of error was brought.

Asst. Atty. Gen. Whitney, for plaintiff in error.

Frederic Cunningham, for defendants in error.

Mr. Chief Justice FULLER, after stating the facts in the foregoing language, delivered the opinion of the court.