United States v. M. Rice & Co.

delivered the opinion of the court.

This case involves the sufficiency of a protest necessary to justify a suit against the United States for duties illegally exacted. The Board of General Appraisers found the protest defective and refused relief.» The Court of Customs Appeals on appeal reversed this action and gave judgment for the importer. 10 Cust. App. 165. The case comes here by certiorari under § 195 of the Judicial Code, as amended August 22, 1914, c. 267, 38 Stat. 703 .

The subject of importation was immortelles. They were entered April 3, 1916, at the port of Philadelphia, and the duty was liquidated June 8, 1916. The Collector levied duty on them at 60 per cent, ad valorem under paragraph 347 of the Tariff Act of October 3, 1913, c. 16, 38 Stat. 114 , 148. The protest of the importer of July 7, 1916, set forth that the immortelles were' dutiable “ at the rate of 25% ad valorem under the first clause of paragraph 210 as palms or cut flower^r preserved or fresh.” 38 Stat. 114 , 133.

The question as to the proper classification of the immortelles was settled by a decision of the Court of Customs. Appeals in Bayersdorfer v. United States, 7 Cust. App. 66, and the legal duty is conceded to be 25 per cent. ad valorem by resemblance to the articles named in paragraph 210. The sole question here is whether under the form of protest presented the importer could rely upon the similitude clause (paragraph 386) of the statute and claim that the immortelles were taxable at the rate fixed

Paragraph N of the Tariff Act of 1913, 38 Stat. 114 , 187, provides:

“ That the decision of the collector as to the rate and amount of duties chargeable upon imported merchandise . . . shall be final and conclusive against all persons interested therein, unless the owner, importer, consignee, or agent of such merchandise . . . shall, within thirty days after but not before such ascertainment and liquidation of duties, ... if dissatisfied with such decision imposing a higher rate of duty, . . . file a protest or protests in writing with the collector, setting forth therein distinctly andxspecifieally, and in respect to each entry or payment, the reasons for his objections thereto. ...”

The relevant part of paragraph 386 of the same act provides:

“That each and every imported article, not enumerated in this section, which is similar, either in material, quality, texture, or the use to which it may be applied, to any article enumerated in this section as chargeable with duty, shall pay the same rate of duty which is levied orí the enumerated article which it most resembles in any of the particulars before mentioned. . . .”

The point here raised has long been in dispute. In Hahn v. Erhardt, 78 Fed. 620 (1897), the Circuit Court of Appeals of the Second Circuit held that mention, in the protest of the paragraph fixing the duty on specifically described articles, without more, would not give the collector reason to suppose that the importer claimed the importation came under such paragraph by virtue of the similitude clause, and therefore was defective. In In re Guggenheim Smelting Co., 112 Fed. 517 (1901), the Circuit Court of Appeals held á protest sufficient to justify recovery which claimed classification under a

The protest and similitude clauses have appeared in all tariff acts since 1842 in substantially the same form as in paragraph N and paragraph 386 of the Tariff Act of 1913, so that the authorities construing other tariff acts have application to the present question.

A protest must be distinct and specific enough to show that the objection taken at the hearing or trial was at the time of filing the protest in the mind of the importer and sufficient to notify, the collector of its true nature and character to the end that he might then ascertain the precise facts and have adequate opportunity to correct mistakes and cure defects. Heinze v. Arthur’s Executors, 144 U. S. 28 , 34; Schell’s Executors v. Fauché, 138 U. S.

Does a claim in a protest under a particular paragraph, with.no more, adequatély indicate to the collector that the importer intends to claim the article imported may come under thq specified paragraph either directly, or by resemblance to articles therein described?

In Arthur v. Fox, 108 U. S. 125 , this court said:

'“ If an article is found not enumerated in the tariff laws, then the first inquiry is whether it ‘ bears a similitude, éither in ipaterial, quality, texture, or use to which it may be applied, to any article enumerated ... as chargeable as with duty.’ If it does, and the similitude is substantial, then, in the language of the court in Stuart v. Maxwell [ 16 How. 150 ] * it is to be deemed the same, and to be charged accordingly.’ In other words, although not specifically enumerated, it is provided for under the name of the article it most resembles.”

The part of paragraph 386 under consideration, prescribes a rule of construction applicable to every paragraph of the tariff, imposing duty on specifically described articles. If is a general provision intended to enlarge the scope of each paragraph to include articles not specifically described but resembling articles specified. The collector

The quoted words of paragraph 386 mention no specific rate. Any reference to them in a protest would be meaningless unless accompanied by mention of some taxing paragraph. It is the latter which taxes the article under the general rule of interpretation which these words furnish.

It is said thereby that resemblance is a question of fact, but it is one not very different from that involved in the classification of articles within the specific description of the paragraph. The object of the protest is to put the collector on inquiry not alone as to the law but also as to the facts which make the law applicable. The reasoning of the Court of Customs Appeals meets our approval and the judgment is

Affirmed.