EARNSHAW v. U S 146 U.S. 60 (1892)

Action against Alfred Earnshaw to recover duties alleged to be due on certain imports of iron ore. A demurrer to the answer was sustained by the district court. 12 Fed. Rep. 283. Subsequently a trial was had, and the court directed a verdict for the United States. A motion for judgment in favor of the defendant non obstante veredicto was overruled, and judgment entered on the verdict. 30 Fed. Rep. 672. On March 1, 1891, a demurrer to new matter in the answer was sustained. 45 Fed. Rep. 782. The judgment was affirmed by the circuit court, and the defendant brings error. Affirmed.

Statement by Mr. Justice BROWN: [146 U.S. 60, 61]   This was an action by the United States against Earnshaw in the district court for duties upon 11 consignments of iron ore imported by him into the port of New York in 1882. At the entry of the different consignments their values were declared, and to each of these values the appraiser made an addition.

From this appraisement Earnshaw appealed, and demanded a reappraisement, and a day was fixed for the hearing in June, 1883. Earnshaw, as well as the general appraiser and the merchant appraiser, attended upon that day, and the government asked for a postponement. The proceeding was adjourned, but the day was not named, and Earnshaw was told that he would be notified.

Upon March 19, 1884,-nine months after the adjournment,-the defendant, who lived in Philadelphia, was notified by letter from the general appraiser that the appraisement would take place at his office in New York at noon on March 20th. At that time, however, defendant was in Cuba, and his brother, who was also his clerk, wrote the general appraiser in his name that he was out of the country, and would not be back before the beginning of May, and asked a postponement of the hearing until that time. The appraiser telegraphed in reply: 'Your cases adjourned to Tuesday, March 25th, 12 M.' On March 31st, in the absence of Earnshaw, and with no one acting for him, the reappraisement was made, and for the [146 U.S. 60, 62]   difference between the amount he had paid and the amount thus ascertained this action was brought.

Upon the trial the defendant, having read the statute authorizing the demand for a reappraisement, read the following regulation of the treasury department, to show that he was entitled to notice to be present at the reappraisement that he might tender evidence:

'Art. 466. On the receipt of this report the collector will select one discreet and experienced merchant, a citizen of the United States, familiar with the character and value of the goods in question, to be associated with an appraiser at large, if the attendance of such officer be practicable, to examine and appraise the same according to law. Rev. St . 2930. ... The appraiser at large will be notified of the appeal, of the time fixed for reappraisement, and of the name of the merchant appraiser. The importer will be notified of the time and place, but not of the name of the merchant selected to assist in the appraisement. ... The importer or his agent will be allowed to be present, and to offer such explanations and statements as may be pertinent to the case.'

The defendant relied solely upon the want of proper notice of the reappraisement, and asked the court to instruct the jury as follows:

'(1) If the defendant attended on the day appointed for the appraisement by the merchant chant appraiser, and the United States not being ready to go on, the hearing was postponed indefinitely, the defendant was entitled to such reasonable notice of the time and place of holding the appraisement as would enable him to attend.

'(2) If the United States failed to move in the matter after the adjournment from June, 1883, until March, 1884, and the defendant was then temporarily absent from home, he was entitled to a reasonable time to enable him to return and attend at the appointment.

'(3) If the United States insisted on proceeding with the reappraisement in the absence of the defendant, under the circumstances, as shown by the testimony, the reappraisement is not a valid merchant's appraisement.' [146 U.S. 60, 63]   The judge declined to instruct as requested, and charged the jury that such notice was given to the defendant as is contemplated by the regulations of the department and the rules of law governing reappraisements; that the reappraisement was valid; and that the plaintiff was entitled to recover a verdict for the amount of the claim, $1,611.20, with interest. This was the amount claimed over and above the amount paid, and for this amount the jury returned a verdict, upon which judgment was entered accordingly. 30 Fed. Rep. 672.

The circuit court affirmed this judgment upon a writ of error, whereupon the defendant sued out a writ of error from this court.

R. C. McMurtrie, for plaintiff in error.

[146 U.S. 60, 66]   Asst. Atty. Gen. Maury, for the United States.

Mr. Justice BROWN, after stating the facts in the foregoing language, delivered the opinion of the court.

It is conceded in this case that the reappraisement was binding, provided it was properly conducted, (Rev. St. 2930; Rankin v. Hoyt, 4 How. 327, 335; Bartlett v. Kane, 16 How. 263, 272; Sampson v. Peaslee, 20 How. 571; Hilton v. Merritt, 110 U.S. 97 , 3 Sup. Ct. Rep. 548;) and the sole defense made upon the trial was that Earnshaw did not receive a reasonable notice of the time when the reappraisement was to be made. [146 U.S. 60, 67]   The facts being undisputed, the reasonableness of the notice with respect to time was a question of law for the court, and was properly withdrawn from the consideration of the jury. Hill v. Hobart, 16 Me. 164; Blackwell v. Fosters, 1 Metc. (Ky.) 88; Seymour v. McCormick, 16 How. 480, 491; Luckhart v. Ogden, 30 Cal. 547, 557; Holbrook v. Burt, 22 Pick. 546; Insurance Co. v. Allen, 11 Mich. 501. By Rev. St. 2899-2902, provision is made for the appraisement of imported merchandise under regulations prescribed in the succeeding sections; and by section 2930, if the importer is dissatified with such appraisement, he may give notice to the collector, upon the receipt of which the latter 'shall select one discreet and experienced merchant, to be associated with one of the general appraisers wherever practicable, or two discreet and experienced merchants, citizens of the United States, familiar with the character and value of the goods in question, to examine and appraise the same, agreeably to the foregoing provisions; ... and the appraisement thus determined shall be final, and be deemed to be the true value, and the duties shall be levied thereon accordingly.' No provision is expressly made by statute for notice to the importer, but by article 466 of the treasury regulations of 1884 'the importer will be notified of the time and place, but not of the name of the merchant selected to assist in the appraisement.' The board of appraisers thus constituted is vested with powers of a quasi judicial character, and the appraisers are bound (section 2902) 'by all reasonable ways and means in his or their power to ascertain, estimate, and appraise the true and actual market value and wholesale price ... of the merchandise at the time of exportation,' etc. No reason is perceived for excluding this board of appraisers from the benefit of the general rule applicable to such officers that some presumption is to be indulged in favor of the propriety and legality of their action, and that with respect to their methods of procedure they are vested with a certain discretion which will be respected by the courts, except where such discretion has been manifestly abused, and the board has proceeded in a wanton disregard of justice or of the rights of the importer. [146 U.S. 60, 68]   The general principle is too well settled to admit of doubt that, where the action of an inferior tribunal is discretionary, its decision is final. Giles' Case, Strange, 881; King v. Proprietors, 2 W. Bl. 708; Henderson v. Moore, 5 Cranch, 11; Insurance Co. v. Young, Id. 187; Same v. Hodgson, 6 Cranch, 206.

It was decided at an early day in this court that the refusal of an inferior court to continue a case cannot be assigned as error, (Woods v. Young, 4 Cranch, 237;) and yet there are doubtless cases to be found which hold that where, under the recognized practice, a party makes a clear case for a continuance, it is an abuse of discretion to refuse it. Thus, in Rose v. Stuyvesant, 8 Johns. 426, the judgment of a justice of the peace was reversed, because he had refused an adjournment of a case on account of a child of the defendant being dangerously sick; and in Hooker v. Rogers, 6 Cow. 577, the verdict was set aside by the appellate court upon the ground that the circuit judge refused to put off the trial of the cause upon proof that a material witness was confined to his bed by sickness, and unable to attend court. See, also, Trustees v. Patchen, 8 Wend. 47; Ogden v. Payne, 5 Cow. 15. So, in Frey v. Vanlear, 1 Serg. & R. 435, where arbitrators adjourned to a day certain, and did not meet on that day, but met on a subsequent day, examined the witnesses in the absence of the opposite party, and without notice of the meeting, and made an award, it was held that their proceedings were irregular, and the judgment was reversed. The question in all these cases is whether, in respect either to the notice of the trial, adjournments, allowance of pleas, the reception of testimony, or other incidental proceedings, the court has or has not acted in the exercise of a sound and reasonable discretion. The subject is fully discussed in People v. Superior Court, 5 Wend. 114.

The tribunal in this case was created as a part of the machinery of the government for the collection of duties upon imports, and, while its proceedings partake of a semijudicial character, it is not reasonable to expect that in notifying the importer it should proceed with the technical accuracy neces- [146 U.S. 60, 69]   sary to charge a defendant with liability in a court of law. The operations of the government in the collection of its revenue ought not to be embarrassed by requiring too strict an adherence to the forms and modes of proceeding recognized in courts of law, so long as the rights of its taxpayers are not wantonly sacrificed. In this case notice was given to the defendant by letter and telegram, but, as these notices were actually received at his office, he has no right to complain that they were not served personally. Jones v. Marsh, 4 Term R. 464; Johnston v. Robins, 3 Johns. 440; Walker v. Sharpe, 103 Mass. 154; Clark v. Keliher, 107 Mass. 406; Blish v. Harlow, 15 Gray, 316; Wade, Notice, 640.

The first day fixed for the hearing was in June, 1883, when the defendant and the appraisers attended, but the government was not ready to proceed, and the hearing was adjourned indefinitely, with an understanding that the defendant should be notified of the day when the case would be again taken up. Nine months elapsed without any action, when on March 18, 1884, the general appraiser at New York addressed a letter to the defendant at Philadelphia, notifying him that the reappraisement would take place at his office on the 20th day of March, at noon. Defendant at that time was in Cuba, but the letter was received by his brother, a clerk in his office, who wrote the appraiser in Earnshaw's name that Mr. Earnshaw was out of the country, and was not expected back before the beginning of May, 'and I must, therefore, ask you to be kind enough to postpone the said reappraisement.' In reply to this a telegram was sent, to the effect that the case was adjourned to March 25th, at noon,-a postponement of five days from the time originally fixed. To this telegram no attention was paid, and it appears that the reappraisement was not held until the 31st, nearly a week after the day fixed in the telegram. On the 10th of May, when the defendant returned, he received a demand for payment of the duties according to the reappraisement.

The amount of business done by the defendant does not distinctly appear, but, considering that this suit is brought to collect the difference in duties upon 11 different importations [146 U.S. 60, 70]   of iron ore from a single foreign port during the latter half of 1882, it is but fair to infer that it was of considerable magnitude. Defendant knew, before leaving for Cuba, that proceedings were pending for a reappraisement of duties upon these cargoes, and were liable to be called up in his absence. Under such circumstances, the appraiser might reasonably expect that he would leave some one to represent him, or at least that his clerk would act upon his notification to appear on the 25th, and ask for a further postponement on the ground of the defendant's continued absence, if the personal presence of the latter were in fact important. Had he done so, and his application been refused, a much stronger case would have been presented by the defendant. He did not do so, however, but neglected to appear, or to request a further postponement, and practically allowed the hearing to take place by default. In view of the neglect of the defendant to make any provision for the case being taken up in his absence, and of his clerk to appear and ask for a further postponement of the hearing, we cannot say that the appraisers acted unreasonably in proceeding ex parte, and imposing the additional duties, without a waiting the return of the defendant. Indeed, if a court of justice should fix a day for the trial of a case, though the court were informed that a party could not be present on that day, and the attorney of the party refused to appear and demand a further postponement, we should be unwilling to say that it would constitute such an abuse of discretion as to vitiate the judgment.

There was no error in the ruling of the court below, and the judgment is therefore affirmed.