[257 U.S. 536, 537] Mr. Assistant Attorney General Hoppin, for the United States.
Mr. J. Stuart Tompkins, of New York City, for respondents.
Mr. Chief Justice TAFT 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 Ct. Cust. App. 165. The case comes here by certiorari under section 195 of the Judicial Code, as amended August 22, 1914, 38 Stat. 703 (Comp. St. 1186).
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, Schedule N, of the Tariff Act of October 3, 1913, 38 Stat. 114, 148 (Comp. St. 5291). The protest of the importer of July 7, 1916, set forth that the immortelles were dutiable 'at the rate of 25 per cent. ad valorem under the first clause of paragraph 210 as palms or cut flowers, 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 Ct. 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, Schedule G. The sole question here is whether under the form of protest presented the importer could rely upon the similitude clause ( paragraph 386, Schedule N), of the statute and claim that the immortelles were taxable at the rate fixed [257 U.S. 536, 538] in paragraph 210, because of their resemblance to articles therein described.
Paragraph N of the Tariff Act of 1913, 38 Stat. 114, 187 (Comp. St. 5595), provides:
The relevant part of paragraph 386 of the same act provides that--
The point here raised has long been in dispute. In Hahn v. Erhardt, 78 Fed. 620, 24 C. C. A. 265 (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 Re Guggenheim Smelting Co., 112 Fed. 517, 50 C. C. A. 374 (1901), the Circuit Court of Appeals held a protest sufficient to justify recovery which claimed classification under a [257 U.S. 536, 539] named paragraph, although the article imported could only be so classified by virtue of the similitude clause. In United States v. Dearberg, 135 Fed. 245, the same point arose in the Circuit Court, S. D., New York, and the board of general appraisers was sustained in holding the protest sufficient under the authority of the Guggenheim Case. 135 Fed. 245. This was reversed by the Circuit Court of Appeals, 143 Fed. 472, 74 C. C. A. 226 (1905) without opinion, on the authority of the Hahn Case. Thereafter the board of general appraisers, in this and others cases, has by a majority vote, followed the Hahn Case. In the case of United States v. Snellenburg, 9 Ct. Cust. App. 59, the Court of Customs Appeals held a protest sufficient which mentioned a special paragraph without more, although the article imported could only be brought under the paragraph by virtue of a similitude paragraph. The Court of Customs Appeals, in the judgment here under review, followed the Snellenburg Case and sustained the protest, one member of the court dissenting. It is because of this somewhat exceptional contrariety of opinion existing among general appraisers, Circuit Courts of Appeals and Judges of the Court of Customs Appeals, that this court has granted a certiorari herein.
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 tarriff 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 , 12 S. Sup. Ct. 604; Schell's Executors v. Fauche, 138 U. S. [257 U.S. 536, 540] 562, 11 Sup. Ct. 376; Arthur v. Morgan, 112 U.S. 495, 501 , 5 S. Sup. Ct. 241; Arthur v. Dodge, 101 U.S. 34 , 37; Greely's Administrator v. Burgess, 18 How. 413, 416. But no special form is required.
Does a claim in a protest under a particular paragraph, with no more, adequately indicate to the collector that the importer intends to claim the article imported may come under the specified paragraph either directly, or by resemblance to articles therein described?
In Arthur v. Fox, 108 U.S. 125 , 2 Sup. Ct. 371, this court said:
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. It is a general provision intended to enlarge the scope of each paragraph to include articles not specifically described but resembling articles specified. The collector [257 U.S. 536, 541] must be taken to be familiar with the general provisions of the Tariff Act. When an importer specifies in his protest a paragraph under which he claims his importation should be classified, the collector should inquire not only whether the article comes within the paragraph named, but also whether it so resembles the articles specifically described therein as to require it to be classified thereunder. After satisfying himself that the article does not come within the specific description of the named paragraph, its resemblance to articles which do should be his 'first inquiry.'
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