This case comes before the court upon a certificate of division in opinion between the judges of the circuit court of the United States for the district of Massachusetts.
It is an action for money had and received, brought by the plaintiffs, who are merchants, resident and doing business at Halifax, Nova Scotia, to recover of the defendant, the collector of customs for the port of Boston, money alleged to have been illegally exacted on payment of duties on fifty bags of cutch, shipped by the plaintiffs at Halifax, consigned to Messrs. Clark, Janes, and Co., of Boston.
The invoice was dated at Halifax, November 10, 1853, and the cutch was entered at the custom-house, Boston, on the 16th of the same month, at the invoice value.
The value of the cutch, as appraised by the United States appraisers, exceeded by ten per centum the invoice value; and the plaintiff appealed, and a reappraisement was had by two merchant's appraisers, and their appraisement also exceeded by ten per centum the invoice value; whereupon the defendant assessed a duty of ten per centum ad valorem on the appraised value, and also an additional duty or penalty of twenty per centum on the same value, under the 8th section of the tariff act of July 30, 1846.
It was proved that the cutch was the product of the East Indies only, and that Calcutta was the great market of the country of production. And it appeared on the trial that this fact was known to the appraisers when the appraisement was made. It was also proved that London and Liverpool were the principal markets of Great Britain, exclusive of India, for said article; and, so far as appeared at the trial, this cargo was the only one known to have been sold in, or exported from, Halifax.
It was also proved that the appraisers appraised the cutch at its market value in London and Liverpool, and not at Halifax or Calcutta, at the period of its exportation from the port of Halifax to the United States.
The case coming on to be tried, it occurred as a question:--
1. Whether the tariff act of March 3, 1851, repealed so much of all former laws as provided that merchandise, when imported from a country other than that of production or manufacture, should be appraised at the market value of similar articles at the principal markets of the country of production or manufacture, at the period of the exportation to the United States.
On which question the opinions of the judges were opposed.
2. Whether, in estimating the dutiable value of the cutch, the appraisers should have taken the value at the market of Calcutta, or London and Liverpool, or Halifax, at the period of the exportation from Halifax.
On which question the opinions of the judges were also opposed.
3. Whether, if the appraisements were legally made, the additional duty of twenty per centum, under the 8th section of the tariff act of July 30, 1846, was rightfully exacted by the defendant.
On which question the opinions of the judges were opposed.
Wherefore, upon the motion of the plaintiffs, the points were certified to this court for final decision.
The first question certified by the circuit court depends altogether upon the construction of the act of 1851, 9 Stats. at Large, 629.
The language of this act of congress is general, and embraces all importations of goods that are subject to an ad valorem duty; and directs that their value shall be estimated and ascertained by the wholesale price at the period of exportation to the United States, in the principal markets of the country from which they are imported. The time and the place to which the appraisers are required to look, when making their appraisement, are both distinctly specified in the law-the time being the period of exportation, and the place the country from which they were imported into the United States. It makes no reference to their value in the country of production, or the time of purchase. And as there is no ambiguity in the language of the act, and it embraces all goods subject to an ad valorem duty, the court would hardly be justified in giving a construction to it narrower than its words fairly import.