# Saltonstall v. Birtwell (164 U.S. 54)

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## Dissenting Opinion

    Fuller
United States Supreme Court
164 U.S. 54
Saltonstall v. Birtwell
In October, 1888, Joseph Birtwell brought an action in the circuit court of the United States for the district of Massachusetts against Leverett Saltonstall, collector of the customs for the revenue district of Boston, to recover excess of duties paid under protest on importations. The trial resulted in a judgment for Birtwell, which was brought on error to this court, where the same was reversed, and the case was returned to the circuit court for a new trial. 150 U.S. 417, 14 Sup. Ct. 169.
In June, 1894, the case was again called for trial in the circuit court (63 Fed. 1004), and again resulted in a judgment for Birtwell. The case then went by writ of error to the United States circuit court of appeals for the First circuit, which court affirmed the judgment of the circuit court. 14 C. C. A. 205, 66 Fed. 969.
In April, 1895, the cause was removed into the supreme court by virtue of a writ of certiorari. The return to the writ set forth a stipulation between the counsel for the respective parties that the certified copy of the record of the cause in the circuit court of appeals for the First circuit, on file in the supreme court, should be treated as the return to the writ. That record discloses that at the trial in the circuit court the following proceedings took place:
"It is hereby agreed that trial by jury may be waived in the above-entitled case, and that the same may be tried and determined by the court without the intervention of a jury, as provided in sections 649 and 700 of the Revised Statutes of the United States.
"J. P. Tucker,
"Attorney for Plaintiff.
"Sherman Hoar,
"Attorney for Defendant and United States Attorney.'
'Issue being joined, this cause came on to be heard by the court, the Honorable Le Baron B. Colt, Circuit Judge, sitting.
'On October 2, 1894, at the time of the hearing the following admission on the part of the defendant is filed:
"It is hereby admitted that the 432 pieces of iron and the 4 pieces of iron-the proper classification of which for duty under the tariff act of March 3, 1883, is in question in the above-entitled case-are for the purposes of this case, and for this case alone, 'manufactures not specially enumerated or provided for in' said 'act, composed wholly of iron,' within the meaning of Schedule C (paragraph 216, Treasury Compilation) of said act, and are subject to duty under said paragraph at the rate of forty-five per centum ad valorem.
"This admission as to the classification and nature of said pieces of iron is made to apply to this case, and to this case alone, and the United States and the defendant are not to be estopped or prejudiced thereby in any other case whatsoever.
"Sherman Hoar, United States Attorney.'
'At the same time the following motion for finding is filed by defendant:
"The defendant moves the court to rule that on all the evidence in this case, including the written admission of the defendant now on file in said case, the plaintiff has failed to prove his case, inasmuch as he has failed to show that he paid to the defendant under protest, and for the purpose of obtaining his merchandise, according to the provisions of law in force at the time of his importation, the duties he now seeks to recover.
"And said defendant moves the court to rule that on all the evidence in this case, including the aforesaid admission of the defendant, the plaintiff has failed to prove his case, inasmuch as be has failed to show that he complied with the provisions of law relative to protest in force at the time of his said importation.
"And said defendant moves the court to rule that on all the evidence in this case, including the aforesaid admission of the defendant, the plaintiff has failed to prove his case.
"And the defendant moves also that the court find generally for him.
"Sherman Hoar, United States Attorney.'
'Said motion is thereupon overruled by the court, and judgment ordered to be entered for the plaintiff.
'On the 13th day of October the following findings of fact are filed by the court:
'The court finds the following facts:
'(1) That on February 27, 1888, the plaintiff Joseph Birtwell imported, ex steamship Jan Breydel, from a foreign country into the port of Boston, and entered at the customhouse at said port, certain iron, described in the entry as '432 pieces in manufactures of iron for the third floor of the Boston courthouse,' drilled and fitted complete, as required by plan, and painted.
'(2) That on the 14th day of March, 1888, the said plaintiff imported, ex steamship Petre De Connick, from a foreign country into port of Boston, and entered at the customhouse in said Boston, certain iron, described in the entry as '4 riveted girders in iron, complete framing of third floor of Boston courthouse.'
'(3) That the defendant, collector of said port of Boston, estimated the duties on both of said importations under the provision of Schedule C of the tariff act of March 3, 1883, which reads as follows: 'Iron or steel beams, girders, joists, angles, channels, car-truck channels, TT, columns and posts, or parts or sections of columns and posts, deck and bulb beams, and building forms, together with all other structural shapes of iron or steel, one and one-fourth of one cent per pound.'
'(4) That on February 29, 1888, subsequently to said estimation of duties, for the purpose of obtaining said 432 pieces of iron, the plaintiff paid duties thereon at the rate exacted by the defendant, amounting to the sum of $2,889.29.
'(5) That on March 14, 1888, subsequently to said estimation of duties, for the purpose of obtaining said 4 pieces of iron, the plaintiff paid duties thereon at the rate exacted by the defendant, amounting to the sum of $166.75.
'(6) That the plaintiff actually obtained said 432 pieces of iron and said 4 pieces of iron at the time when he paid the estimated duties thereon, respectively.
'(7) That on the 4th day of April, 1888, the defendant collector liquidated the duties on said 432 pieces of iron at the same rate and under the same provisions of law at which he had estimated said duties; and on the 10th day of April, 1888, said collector liquidated the duties on said 4 pieces of iron at the same rate, and under the same provisions of law, at which he had estimated said duties.
'(8) That on the 4th day of April, 1888, the plaintiff filed with the defendant collector a protest in writing, setting forth distinctly and specifically the grounds of his objection to the rate of duty at which the duties on said 432 pieces of iron had been liquidated by the defendant collector; and on the 10th day of April, 1888, the plaintiff filed with the defendant collector a protest in writing, setting forth distinctly and specifically the grounds of his objection to the rate of duty assessed by the collector upon said 4 pieces of iron; and in each of said protests the plaintiff claimed that said 432 pieces of iron and said 4 pieces of iron, respectively, were dutiable under that portion of Schedule C of the tariff act of 1883, which is in the words following: 'Manufactures, articles or wares not specially enumerated or provided for in this act, composed wholly or in part of iron, steel, copper, lead, nickel, pewter, tin, zinc, gold, silver, platinum, or any other metal, and whether partly or wholly manufactured, forty-five per cent. ad valorem'; and these protests were the only written protests filed by the plaintiff with the defendant in this case.
'(9) The plaintiff took an appeal from the decision of the defendant collector on both the said importations to the secretary of the treasury within due time, and, the secretary of the treasury having sustained the defendant collector in both cases, the defendant brought this suit in due time, and filed with the attorney of the defendant a bill of particulars in compliance with the requirements of section 3012 of the Revised Statutes of the United States.
'(10) I find as a fact that, in connection with his testimony as to making entries of said importations, the plaintiff testified, 'I deposited what they demanded under protest.'
'(11) On the question of the nature and dutiable character of said 432 pieces of iron and said 4 riveted girders of iron, there being on record in said case an admission of the defendant in the following language:
"It is hereby admitted that the 432 pieces of iron and the 4 pieces of iron-the proper classification of which for duty under the tariff act of March 3, 1883, is in question in the above-entitled case-are for the purposes of this case, and for this case alone, 'manufactures not specially enumerated or provided for in' said 'act, composed wholly of iron,' within the meaning of paragraph 216 of said act, and are subject to duty under said paragraph at the rate of forty-five per centum ad valorem.
"This admission as to the classification and nature of said pieces of iron is made to apply to this case, and to this case alone, and the United States and the defendant are not to be estopped or prejudiced thereby in any other case whatsoever.' I find that said 432 pieces of iron and said 4 pieces of iron were dutiable at the rate of forty-five per centum ad valorem, as claimed by the plaintiff.
'(12) The value of said 432 pieces of iron was $2,647; the value of said 4 pieces of iron was $216; and the excess of duties paid over duties due is, on said 432 pieces of iron, $1,698.14, and on said 4 pieces of iron, $69.55.
'(13) The court finds that the plaintiff is entitled to recover the sum of $1,767.69 and interest from the date of the writ, and costs.
'Le Baron B. Colt, Circuit Judge.

## Notes

This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).
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