SALTONSTALL, Collector, v. RUSSELL et al.

The case having been submitted to the circuit court upon a statement of facts agreed by the parties, or case stated, upon which the court was to render such judgment as the law required, all questions of the sufficiency of the pleadings were waived, and the want of an answer was immaterial, and no finding of facts by the court was necessary. Willard v. Wood, 135 U. S. 309, 314, 10 Sup. Ct. 831; Bond v. Dustin, 112 U. S. 604, 607, 5 Sup. Ct. 296.

It is conceded that the duties complained of were illegal, in view of the decision of this court in Oberteuffer v. Robertson, 116 U. S. 499, 6 Sup. Ct. 462; and that the only question in the case is whether protest should have been made, under sections 2931 and 3011 of the Revised Statutes, within 10 days after the liquidation of the duties at Eastport.

By the customs acts of the United States, except as otherwise expressly provided, duties on imported goods are to be assessed and paid at the first port of entry. U. S. v. Vowell, 5 Cranch, 368; Meredith v. U. S., 13 Pet. 486, 494; Hartranft v. Oliver, 125 U. S. 525, 8 Sup. Ct. 958. For the purpose of encouraging and facilitating commerce by exempting the importer from the payment of duties until he is ready to bring his goods into market, provision has been made by which the goods may be entered for warehousing and deposited in a bonded warehouse in the district of entry, and may be transported to a bonded warehouse in any other collection district, and the payment of duties postponed until the goods are withdrawn; and they may be withdrawn for consumption within one year from the date of original imporation on payment of the duties and charges to which they may be subject by law at the time of such withdrawal, or after that time, and within three years from such date, on payment of the duties assessed on the original entry and charges, and 10 per cent. additional. Rev. St. §§ 2962, 2970, 3000, 3001; Tremlett v. Adams, 13 How. 295, 303; Fabbri v. Murphy, 95 U. S. 191; Westray v. U. S., 18 Wall. 322. For the same purpose provision has been made by which merchandise imported at certain ports, appearing to be consigned to one of the ports afterwards named in the statute, may be entered for warehouse and immediate transportation, and examined, and the duties estimated at the port of first arrival, but the appraisement and liquidation of duties made at the port of destination. Rev. St. §§ 2990-2997; Acts June 10, 1880, c. 190 (21 Stat. 174); February 23, 1887, cc. 215, 218 (24 Stat. 411, 414). But the goods in question were not deposited in or withdrawn from a bonded warehouse; nor is Eastport one of the ports at which goods can be imported and shipped through without appraisement. It follows that articles 721-725, 740, and 743 of the treasury regulations of 1884, cited by the importers, have no application to the case; and that the assessment at Eastport was the final ascertainment and liquidation of the duties upon these goods. That such was the opinion of the treasury department appears from its having addressed its letter of instructions for the correction of the assessment, not to the defendant, but to the Eastport collector, as well as from the reasons which it gave for disallowing the appeal of the importers. And we have been referred to no act of congress, treasury regulation, or judicial decision, which warranted a new assessment of the duties upon these goods by the defendant at Boston. See Spring v. Russell, 1 Low. 258, Fed. Cas. No. 13,261.

But this suit of the importers against him clearly comes within section 3011 of the Revised Statutes, as amended by the act of February 27, 1877 (chapter 69), which provides that 'any person who shall have made payment, under protest, and in order to obtain possession of merchandise imported for him, to any collector, or person acting as collector, of any money as duties, when such amount of duties was not, or was not wholly, authorized by law,' may maintain an action 'to ascertain the validity of such demand and payment of duties, and to recover back any excess so paid;' but that 'no recovery shall be allowed in such action, unless a protest and appeal shall have been taken as prescribed in section 2931.' 19 Stat. 247.

By section 2931, here referred to, 'the decision of the collector of customs at the port of importation and entry, as to the rate and amount of duties to be paid' on merchandise, and the dutiable costs and charges thereon, 'shall be final and conclusive against all persons interested therein,' unless the importer 'shall, within ten days after the ascertainment and liquidation of the duties by the proper officers of the customs, as well in cases of merchandise entered in bond as for consumption, give notice in writing to the collector on each entry, if dissatisfied with his decision, setting forth therein, distinctly and specifically, the grounds of his objection thereto, and shall, within thirty days after the date of such ascertainment and liquidation, appeal therefrom to the secretary of the treasury.'

By virtue of this section, Eastport being 'the port of importation and entry' of these goods, the decision of the collector at that port as to the rate and amount of duties to be paid was 'the ascertainment and liquidation of the duties by the proper officers of the customs;' and the plaintiffs, not having given notice in writing of their objection to that decision within 10 days thereafter, cannot maintain an action to recover back the whole or any part of the duties paid.

This conclusion, which appears to be required by the terms of the statutes, is the only one consistent with the decision of this court in Merritt v. Cameron, 137 U. S. 542, 11 Sup. Ct. 174.

It was suggested, in the brief in behalf of the importers, 'that the collector had no jurisdiction or power to assess a duty upon the coverings; the liquidation was void, just as if the collector undertook to assess a duty upon domestic goods; the appraisement was void; and in such a case section 2931 of the Revised Statutes does not apply, and no protest is necessary, because there has been no valid liquidation.' In support of this suggestion were cited Oberteuffer v. Robertson, 116 U. S. 499, 6 Sup. Ct. 462; Badger v. Cusimano, 130 U. S. 39, 9 Sup. Ct. 431; Robertson v. Frank Bros. Co., 132 U. S. 17, 24, 10 Sup. Ct. 5; U. S. v. Thurber, 28 Fed. 56.

But U. S. v. Thurber was an action by the United States to recover duties, and not an action against the collector to recover them back. In Badger v. Cusimano, and in Robertson v. Frank Bros. Co., protests had been made in due form. In Oberteuffer v. Robertson, it was distinctly recognized that the proper remedy of the importer was by protest and appeal; and the statutes, as has already been seen, make such protest and appeal essential prerequisites to recovery in an action brought to ascertain the validity of the demand and payment of duties, and to recover back any excess so paid. See, also, Lawrence v. Caswell, 13 How. 488, 496; Nichols v. U. S., 7 Wall. 122; Arnson v. Murphy, 109 U. S. 238, 3 Sup. Ct. 184; Id., 115 U. S. 579, 6 Sup. Ct. 185.

Judgment reversed, and case remanded to the circuit court, with directions to render judgment upon the agreed statement of facts for the defendant.