Judges: Deady
Filed Date: 12/29/1882
Status: Precedential
Modified Date: 11/3/2024
This action is brought to recover from the defendant the sum of $423.96, alleged to have been unlawfully collected by him from the plaintiff as duties on certain merchandise entered at this port by the latter. It is alleged in the complaint that on September 20, 1879, the plaintiff entered at the custom-house in Portland 148 boxes of merchandise," weighing 11,684 pounds, of the value of $367.20, as sago flour, an article exempt from duty under the laws of the United States, upon which the defendant, as collector of said port, imposed and collected a duty of $423.96, which the plaintiff was thereby compelled to pay, and that the plaintiff duly appealed from the decision of the defendant to the secretary of the treasury,
A number of similar cases were pending against the defendant, and one — Tond Duck Chung v. Kelly — had been tried by the court, with a finding for the plaintiff on April 23, 1879, and afterwards retried with a jury, with a verdict for the plaintiff on January 13, 1880. The court not deeming the evidence produced on the trial by either party, as to the identity of the article in question, as satisfactory as it should be, for want of some known or admitted sample of sago flour with which to make a microscopic comparison of the granules of the former, postponed the consideration of the motion for a new trial until the trial of one of the other pending cases, before which it was expected that the parties would procure some samples of sago from Singapore, the place where the plaintiff claims that his flour came from, as a standard of comparison. Since then the case of Chung Yune v. Kelly, has been tried with a. jury, and a verdict found for the defendant on December 8, 1882.
On the trial of this latter case it satisfactorily appeared, from the testimony of a witness sent to Singapore by the treasury department during the past summer, that sago flour is made in Singapore from the pith of the sago palm, (sagus Rumphii,) grown there on plantations for that purpose; and that a root flour is made there from the root of a species of the genus manihot, also grown there on plantations for that purpose. The flour made from this root is called by the Chinese, who are principally employed in the plantations and factories, ling fane, root, or wood flour. It is also known in the books and in commerce as cassava meal, from which is made the tapioca of commerce, sometimes called Brazilian arrow-root, from the fact that it is probably indigenous to Brazil, from whence it has been introduced into other parts of tropical America, Florida, Africa, and the Bast Indies. Amer. Cyelo.- “ CassavaNat. Dis. Stille & Maisch, “Tapioca.” Its early use and origin is suggested by a provision con
In the present case, as well as that of Chung Yune v. Kelly, the issue to be tried arose upon the allegation of the plaintiff that the article imported was sago flour, and the denial of the same by the defendant.
The goods were entered by the plaintiff as sago flour, and he protested against the payment of duties upon that ground alone. His right to maintain this action at all depends upon the statute, (section 3011, Eov. St.,) and he cannot recover under it unless he protested in writing against the payment of the duties, stating therein, “distinctly and specifically,” the grounds of such protest. Nichols v. U. S. 7 Wall. 126; Mason v. Kane, Taney, 176; Thomson v. Maxwell, 2 Blatchf. 385; Warren v. Peaslee, 2 Curt. 235.
The burden of proof is upon the plaintiff, and before he can recover lie must prove the truth of his allegation and protest that this article is sago flour. And therefore it is that it is of no avail to the" plaintiff in this action that it now appears that this article is not dutiable, and ought not to have been charged with duty, because root flour, tapioca, and cassava are all on the free list as well as sago. Rev. St. 488, 489.
This answer is undoubtedly according to the law and the fact. This “ling fune” or “root flour,” like the flour of wheat, corn, rye, rice, and other starch-bearing plants, is largely composed of starch granules, and maybe used as starch. But it is not “made” or manufactured starch, or known to commerce as such.
It appears to be imported to this coast from Hong Kong, by the Chinese, as an article of food, though some small proportion of the quantity imported is used as starch in the laundries, to give a degree of luster and stiffness to the clothes which is said not to be attainable by the use of the ordinary starches. ^
The preparation of starch granules “made ” or manufactured from the flour of farinaceous plants, for the purpose of being used in the arts as starch, sizing, or stiffening, and not food, is the starch of commerce, and the article upon which the clause in the statute imposing a duty on starch applies. It would be just as far-fetched and unreasonable to construe the statute as authorizing a duty on wheat flour because of its starchy nature, as on root or sago flour. Both are for the greater part composed of starch granules, and may be used for starch.
But it matters not what are the component parts of the root flour, or for what purpose it is used. Congress, by the act of June 6, 1872,
The evidence introduced on the trial of this ease was conflicting and unsatisfactory, because of the want of a known standard with which to compare the article. The weight of it may have been with the plaintiff, but that is not enough to justify a verdict for him. Leaving out of consideration the evidence of the defendant, the evidence of the plaintiff as to the identity of the article was open to question and doubt; and while the court might not feel authorized to set aside a verdict obtained upon it, for a stronger reason it would feel less so in case the verdict was against it.
But in the light of the evidence and verdict in the case of Chung Yune v. Kelly, it would be useless to grant a new trial in this case, as it would be followed, so far as can be seen, by another verdict for the defendant.
The motion is denied.