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December 1, 1863


ERROR to the Circuit Court for the District of Massachusetts. Iasigi & Goddard imported a cargo of wool from the Cape of Good Hope to Boston, which was invoiced, and, on the 16th March, 1860, entered at a price or value at the place of exportation of less than twenty cents per pound, and hence duty free under the act of 3d March, 1857.*fn1 Certain packages–the 'examination packages,' as they are called–were examined by the appraisers, and the invoice certified 'Right,' and sent to the collector. All but the examination packages were delivered to the importers under the general bond at once; that is to say, on the day of entry, March 16th; and the examination packages on the next day. Subsequently one of the general appraisers at New York having come to Boston, informed the collector there that there had been 'some neglect,' and in consequence of 'information' now given to him, the collector directed a reappraisement. A certain Crocker, 'one of the principal appraisers of the United States, at the port of Boston,' assisted by Mr. Bausch, a wool examiner, of New York, accordingly, went to work to reappraise the wool. They found it in the warehouse of the importers; and having put the word 'Not' before the word 'Right' on the original invoice, returned it to the collector, with the following direction for reappraisement. 'Add, to make market value at Port Elizabeth at date of exportation, on 186 bales, three farthings per pound; on 614 bales, 1/2d. per pound. CROCKER, Appraiser.' This addition brought the wool above twenty cents. A duty was accordingly imposed; and this being approved by the collector, notice was given to the importers of the reappraisement, with a demand for the redelivery of the wool under the bond. The importers declined to redeliver the wool, and having made protest, paid the duty, $16,571. The protest contained sixteen grounds of objection to what was done. Among them were these: 1. That the appraisement was not made as of the market value of the principal markets of the country from which the wool came (which statute requires it to be). 2. That it was not made (as statute also requires it to be) as of the date of exportation to the United States; a fact, however, upon which the court did not read the evidence as the counsel did. No objection was made, in terms, to the fact that the reappraisement was not made 'by the principal appraisers, or by three merchants;' in which way alone, it was contended, as will be seen hereafter, by the counsel of the importers, that it should have been made. But the protest did set forth and object that the appraisement was 'unauthorized by law and illegal in form and substance,' and that it was made 'under the influence, direction and dictation of a person not holding the office of an appraiser for the port of Boston or any other port, and who was not authorized by law to make any examination of the merchandise, or to make and direct any appraisement thereof.' Suit having been brought against the collector to recover the duties paid to him under protest, the court instructed the jury that, on the whole case, the plaintiffs were not entitled to recover; and the correctness of this instruction was the question on error here.

The opinion of the court was delivered by: Mr. Justice Nelson, after stating the chief facts, delivered the opinion of the court:

Mr. S. Bartlett, for the importers:

1. The first question raised is, whether, when an appraisement has been once made, and the merchandise surrendered to the importer, it can, in absence of fraud, afterwards, and for an indefinite time, be again subjected to appraisement, and the duties increased or levied anew?

The act of Congress of August 30, 1842,*fn2 providing revenue from imports, enacts that,

'It shall be lawful for the appraisers or the collector to call before them, and examine upon oath or affirmation, any importer or other person touching any matter or thing which they may deem material in ascertaining the true market value, or wholesale price, of any merchandise imported, and to require the production, on oath or affirmation, of any letters, accounts, or invoices in his possession relating to the same.'

This court, in commenting on the effect of an appraisement, after citing a former case, has said as follows:*fn3

'The appraisers are appointed with powers, by all reasonable ways and means, to appraise, estimate, and ascertain the true and actual market value and wholesale price of the importation. The exercise of these powers involves knowledge, judgment, and discretion. We hold, as was held in that case, that when power or jurisdiction is delegated to any public officer or tribunal over a subject-matter, and its exercise is confided to his or their discretion, the acts so done are in general binding and valid as to the subject-matter. The only questions which can arise between an individual and the public, or any person, denying their validity, are, power in the officer and fraud in the party. All other questions are settled by the decision made or the act done by the tribunal or officer, whether executive, legislative, judicial, or special, unless an appeal or other revision is provided for by some appellate or supervisory tribunal prescribed by law.'

So as to all questions of fact, even those which are to be derived from commercial information, this court has said:*fn4 'The appraisers are by law the tribunal to determine the question. Their decision is conclusive upon the importer as well as the government.'

The question, then, arises: Has the law provided for any 'appeal or revision,' at the instance of the collector, and if so, was the provision of law followed, or attempted to be followed, in this case?

An act of Congress, of May 28, 1830,*fn5 says as follows:

'If the collector shall deem any appraisement of goods too low, he shall have power to order a reappraisement, either by the principal appraisers, or by three merchants designated by him for that purpose, who shall be citizens of the United States, and cause the duties to be charged accordingly.'

But when may he do this? Clearly but upon the return of the appraisers, and before the collector's fiat that all is 'right,' before, in short, a permit and delivery has been made to the importer. Otherwise, and if the right is unlimited in point of time, innocent vendees into whose hands the goods have passed, may be subjected to an unjust levy.

Again, by the act of Congress last quoted, such new appraisal is to be made 'either by the principal appraisers or by three merchants.' In this case it was done by one appraiser only (Crocker), assisted by an examiner of wool, Bausch, from New York. Consequently, it was not done as the act requires, and was void. If the act of August, 1842, as well as the authorities, did not make it clear that one appraisement, confirmed and acted on, and surrender made of the goods to the importer, is final and conclusive against all parties, yet the entire policy of the revenue acts, sufficiently known without particular citation, which requires prompt action on the part of the importer to have his rights, in case of controversy, settled as against the government before the permit is granted and the property surrendered, demonstrates that nothing is intended to be left for revision or future action. Indeed, any view that should give the collector the right to order reappraisements, except as provided in the act of May 28, 1830, must include the power to exercise such right after duties have been paid and the merchandise distributed for consumption, if haply the collector can find them, as in this case, and of course being unlimited in time, might render the accuracy of such future appraisement wholly precarious.

2. But even if reappraisement, after permit and delivery, was authorized by law, the defects and irregularities of the reappraisement made in this case, ...

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