Presson v. Russell/Opinion of the Court

by Melville Fuller

United States Supreme Court

152 U.S. 577

Presson  v.  Russell

Schedule G of the act of March 3, 1883 (22 Stat. 488, 503, 504, c. 121), contained, under the heading 'Fish' these paragraphs:

'Salmon, pickled, one cent per pound; other fish, pickled, in barrels, one cent per pound.

'Foreign caught fish, imported otherwise than in barrels or half barrels, whether fresh, smoked, dried, salted, or pickled, not specially enumerated or provided for in this act, fifty cents per hundred pounds.'

'Salmon, and all other fish, prepared or preserved, and prepared meats of all kinds, not specially enumerated or provided for in this act, twenty-five per centum ad valorem.'

These fish were entered as 'pickled cod,' and were in barrels, and the collector assessed them under the first of the above three paragraphs, but as it was admitted on the trial that the fish had never been pickled, but had been cured with dry salt, this must be treated as erroneous; and, being in barrels, they were not within the second paragraph, which applied only to fish 'imported otherwise than in barrels or half barrels.'

As, however, the fish were preserved by being dry salted, we are of opinion that they came within the third paragraph, and were subject to the ad valorem duty there specified.

But the action cannot be maintained if the statutory requirements in respect of notice were not complied with. Rev. St. §§ 2931, 3011. While such protest need not be technically precise, it must 'definitely and specifically' set forth the grounds of the importer's objections, to the end that the collector may have seasonable opportunity to remove them, and that the importer may not raise other objections than those on which he acted, after the business is closed and the money paid into the treasury. Herrman v. Robertson, 14 Sup. Ct. 686.

This involves the designation in substance, though exact accuracy is not required, of the provision under which the importer insists the goods are dutiable, so as to comprehensively indicate the grounds of alleged error and afford the means of rectification. The importers assumed to do this here, and objected that the fish were not 'pickled fish' liable to a duty of one cent per pound, but were 'dry fish' dutiable at one-half cent per pound; or, in other words, the inference from the duty specified was that the collector should have assessed them under the second paragraph above quoted, and not under the first. The collector, who had classified the fish in accordance with the entry, was thus notified that he should have classified them under a clause which was in terms inapplicable. It was only from the connection of the words 'dry fish' with the rate named that the collector could have inferred that the importers meant that the fish were cured by being dried; but the clause did not apply, and he was left to conjecture as to whether the fish might not have been originally pickled, and become subsequently dry. We do not say that the protest need necessarily have stated that the fish had never been pickled, but it was essential to its sufficiency that it should amount to a notification that the importers claimed that the fish were cured by being dried or salted, and not by being pickled. Had the second paragraph applied, the protest might be treated as definite enough; but, as the case stands, it must be held to have been insufficient.

The judgment is reversed, and the cause remanded, with a direction to enter judgment for the defendant.

Mr. Justice JACKSON did not hear the argument, and took no part in the consideration and decision of the case.

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