Under the act of 1832, the collector had power to direct wool to
be appraised for the purpose of ascertaining whether or not it was
entitled to be imported free from duty, the exemption depending
upon its value not exceeding eight cents per pound at the place of
exportation.
Although it was necessary for the collector to request the
appraisers to act, and no such request appears in the record, yet
the legal presumption is that the collector and appraisers did
their duty, he requesting their action and they complying. And the
collector's subsequent adoption of the proceedings of the
appraisers is tantamount to having requested them.
It was the duty of the collector to be guided by such an
appraisement, and a subsequent verdict of a jury, finding that the
value of the wool was under eight cents per pound, cannot be
considered as rendering his acts illegal.
The importer had a right to appeal to another board of
appraisers, differently constituted, and if he did not choose to
resort to them, he cannot with much grace afterwards complain that
an overestimate existed.
This was an action brought by the plaintiffs in error,
transacting
Page 45 U. S. 328
business as co-partners, in the City of New York under the name
of Smith, Thurger & Co., for the return of duties which they
alleged to have been illegally exacted upon several importations of
wool by Hoyt, the collector of New York.
The acts of Congress which bear upon the case are the
following.
By the act of 14 July, 1832, entitled "An act to alter and amend
the several acts imposing duties on imports," by the first clause
of the second section, 4 Lit. & Brown's ed. 583, it is
enacted
"That wool unmanufactured, the value whereof at the place of
exportation shall not exceed eight cents per pound, shall be
imported free of duty, and if any wool so imported shall be fine
wool, mixed with dirt or other material and thus reduced in value
to eight cents per pound or under, the appraisers shall appraise
said wool at such price as in their opinion it would have cost had
it not been so mixed, and a duty thereon shall be charged in
conformity with such appraisal; on wool unmanufactured the value
whereof at the place of exportation shall exceed eight cents shall
be levied four cents per pound and forty percentum
ad
valorem."
By the seventh section of the same act it is enacted
"That in all cases where the duty which now is or hereafter may
be imposed on any goods, wares, or merchandise imported into the
United States shall, by law, be regulated by or be directed to be
estimated or levied upon the value of the square yard, or of any
other quantity or parcel thereof, and in all cases where there is
or shall be imposed any
ad valorem rate of duty on any
goods, wares, or merchandise imported into the United States, it
shall be the duty of the collector within whose district the same
shall be imported or entered to cause the actual value thereof, at
the time purchased and place from which the same shall have been
imported into the United States, to be appraised, estimated, and
ascertained, and the number of such yards, parcels, or quantities,
and such actual value of every of them as the case may require, and
it shall in every such case be the duty of the appraisers of the
United States and every of them, and every other person who shall
act as such appraiser, by all the reasonable ways or means in his
or their power to ascertain, estimate, and appraise the true and
actual value, any invoice or affidavit thereto to the contrary
notwithstanding, of the said goods, wares, or merchandise, at the
time purchased, and place from whence the same shall have been
imported into the United States, and the number of such yards,
parcels, or quantities, and such actual value of them as the case
may require, and all such goods, wares, and merchandise, being
manufactures of wool or whereof wool shall be a component part
which shall be imported into the United States in an unfinished
condition shall in every such appraisal, be taken, deemed, and
estimated by the said
Page 45 U. S. 329
appraisers, and every of them, and every person who shall act as
such appraiser, to have been, at the time purchased, and place from
whence the same were imported into the United States, as of great
actual value as if the same had been entirely finished, provided
that in all cases where any goods, wares, or merchandise subject to
ad valorem duty or whereon the duty is or shall be by law
regulated by or be directed to be estimated or levied upon the
value of the square yard or any other quantity or parcel thereof
shall have been imported into the United States from a country
other than that in which the same were manufactured or produced,
the appraisers shall value the same at the current value thereof,
at the time of purchase, before such last exportation to the United
States in the country where the same may have been originally
manufactured or produced."
And by the eighth section it is further enacted
"That it shall be lawful for the appraisers to call before them
and examine upon oath any owner, importer, consignee, or other
person touching any matter or thing which they may deem material in
ascertaining the true value of any merchandise imported, and to
require the production on oath to the collector, or to any
permanent appraiser, of any letters, accounts, or invoices in his
possession relating to the same, for which purpose they are hereby
authorized to administer oaths, and if any person so called shall
fail to attend or shall decline to answer or to produce such papers
when so required, he shall forfeit and pay to the United States
fifty dollars, and if such person be the owner, importer, or
consignee, the appraisement which the said appraisers may make of
the goods, wares, or merchandise shall be final and conclusive, any
act of Congress to the contrary notwithstanding, and any person who
shall swear falsely on such examination shall be deemed guilty of
perjury, and if he be the owner, importer, or consignee, the
merchandise shall be forfeited."
By the third section of the Act of 28 May, 1830, 4 Lit. &
Brown's ed. 409, entitled "An act for the more effectual collection
of the impost duties," it is enacted
"That if the owner, importer, or consignee, or agent for any
goods appraised shall consider any appraisement made by the
appraisers, or other persons designated, too high, he may apply to
the collector in writing, stating the reasons for his opinion and
having made oath that the said appraisement is higher than the
actual cost and proper charges on which duty is to be charged, and
also that he verily believes it is higher than the current value of
the said goods, including said charges at the place of exportation,
the collector shall designate one merchant skilled in the value of
such goods, and the owner, importer, consignee, or agent may
designate another, both of whom shall be citizens of the United
States, who, if they cannot agree in an appraisement, may designate
an umpire, who shall also be a citizen
Page 45 U. S. 330
of the United States, and when they or a majority of them shall
have agreed, they shall report the result to the collector, and if
their appraisements shall not agree with that of the United States'
appraisers, the collector shall decide between them."
This last enactment was not repealed by the act of 1832, and it
was under this last act, as modified by the compromise act of 1833.
4 Lit. & Brown's ed. 629, that the cause came on to be tried at
the November term, 1842.
The plaintiffs in error made three several importations of wool
in the year 1838,
viz.:
April, by the Sarah Sheafe, 25 bales.
May, by the Josephine, 21 bales.
November, by the Renown, 19 bales.
The whole of the duties paid upon these several importations
were claimed in this one action.
The jury found a special verdict of the following facts,
viz., that the plaintiffs in error were co-partners; that
Hoyt was collector of the customs; that the three importations
above mentioned were made and the original invoices produced; that
in each invoice the value of the wool was stated to be seven and
one-half cents per pound; that the wool was all unmanufactured; and
then proceeded as follows:
"And the jurors aforesaid, upon their oaths aforesaid, further
find that upon the importation of the said three several invoices
of wool as aforesaid and upon the several entries thereof, the said
wool was examined and appraised by the appraisers of the United
States for the collection district of New York, and that the said
appraisers did upon such examination appraise the said wool and
each and every part and parcel thereof as of the value, at the
places of exportation thereof, of nine cents per pound, which
appraisements were by said appraisers reported to the collector,
and from which said appraisements, or either of them, no appeal was
made by the said plaintiffs."
"And the jurors aforesaid, upon their oath aforesaid, further
say that the said appraisers found the said several parcels of wool
to be unmixed and of the same quality."
"And the jurors aforesaid, upon their oath aforesaid, further
find that the said collector claimed and insisted that the said
wool was subject to the payment of duties to the United States
according to the valuation of the appraisers, so reported to him,
and refused to deliver the said wool to the plaintiffs except upon
payment by them of the duties claimed by the defendant to be due
thereon as aforesaid."
The special verdict then went on to find that the plaintiffs in
error insisted that the wool was free from and not subject to the
payment of any duties to the United States, and protested
against
Page 45 U. S. 331
the right of Hoyt to require payment of any duties; that they
paid, under this protest and a notice that they would bring an
action to recover it back, the sum of $1,909.93, and that the
interest thereon, from the time of payment until 29 November, 1842,
amounted to $577.22, the aggregate of the principal and interest
being $2,487.15; that the duties charged by Hoyt were calculated
and charged upon the value of the wool, as appraised by the
appraisers, and that the wool mentioned in the three several
invoices, and each and every part and parcel thereof, at the place
of exportation, was of the value of seven and one-half cents per
pound and no more.
Under this special verdict, the court, on 23 December, 1843,
ordered a judgment to be entered in favor of Hoyt, the defendant,
and a writ of error brought the case up to this Court.
MR. JUSTICE WOODBURY delivered the opinion of the Court.
The right of the plaintiffs to recover in this case, and
consequently to have a reversal of the judgment rendered in the
circuit court, must depend on the legality of the course pursued by
the defendant.
No question has been made by counsel that an action in this
particular form cannot be maintained against a collector of the
customs if the course pursued by him was illegal, or that the
protest against paying the duties should have been in writing,
points which have arisen in similar controversies and led to
special legislation
Page 45 U. S. 332
by Congress, but, not being made here, it is not necessary now
to consider them.
See on them
Elliott v.
Swartwout, 10 Pet. 138,
35 U. S. 158;
Bond v.
Hoyt, 13 Pet. 267;
Carey v.
Curtis, 3 How. 236;
Swartwout
v. Gihon, 3 How. 110; Act of February 26, 1845.
The illegality imputed to the proceedings of the collector is
supposed to have consisted in this -- that he possessed no power in
cases of this kind to call on the appraisers to estimate the value
of the wool, and if he did possess it, that they do not appear to
have acted here by his request. These objections, if well
sustained, are material because by the appraisal the true value of
the wool was reported to be nine cents per pound, and then, by the
act of July 14, 1832, a duty on it was "levied of four cents per
pound, and forty percentum
ad valorem." 4 Lit. &
Brown's ed. 583. Whereas if the appraisal was unauthorized and the
invoice should have been the only guide, the value of the wool was
but seven and a half cents per pound, and by the same act it ought
then to have been allowed to "be imported free."
The legal power of the collector to call on the appraisers to
estimate the value of this wool rests on the construction which
ought to be given to the second and seventh sections of the act
aforesaid, both of which are extracted at length in the statement
of this case. The plaintiffs contend that the seventh section,
authorizing an appraisal where the duty may be regulated by the
value, or imposed at a rate
ad valorem, is not applicable
to any importations which, like these, if looking to the invoice
alone, are not dutiable, and that the second section, regulating
the appraisement of wool "mixed with dirt or other material," is
the only one applicable to wool which, like this, was valued so low
in the invoice as to be free; but did not in this case authorize
the action of the appraisers in respect to these particular
importations, as these; by the verdict of the jury, afterwards,
were found not to have been so mixed.
In the first place, we so far coincide with the views of the
plaintiffs as to be satisfied that the second section does not
justify the course pursued by the defendant in the present case.
But we dissent from the argument that it is the only section
applicable to importations like these, and hold that the seventh
section, though open to different constructions on this subject, is
plainly susceptible of one which embraces it, and that the spirit
of the section, as well as of the whole system of appraisement
under the revenue laws, seems not only to justify but require the
application of its provisions to importations like those now under
consideration. It ought, then, to be so construed, since this Court
has recently decided that acts imposing duties are not, as has
often been done, to be construed strictly against the government
like penal laws, but so as "most effectually to accomplish the
intention of the legislature in passing them."
Taylor
v. United States, 3 How. 210.
Page 45 U. S. 333
By the words of this last section, so far as material to the
present inquiry, it is provided that if the duty
"imposed on any goods, wares, or merchandise . . . shall by law
be regulated by, or be directed to be estimated or levied upon, the
value of the square yard, or of any other quantity or parcel
thereof, and in all cases where there is or shall be imposed any
ad valorem rate of duty,"
&c., "it shall be the duty of the collector" "to cause the
actual value thereof, at the time purchased," &c., "to be
appraised, estimated, and ascertained," &c., by appraisers.
Under the Act of May 19, 1828, a duty partly specific and partly
ad valorem had been imposed on all wool imported from
abroad. No doubt can exist that the power to have appraised the
value of any wool, imported under that act, had it remained
unaltered in 1838, would have existed in the collector, because a
duty in all cases was imposed and was in some degree
regulated
by the value, though it was not wholly an
ad valorem
rate of duty. But by the Act of July 14, 1832, an amendment was
made in the rate on one description of wool, so as to admit it free
if its value did not exceed eight cents per pound, and the argument
for the plaintiff is that as such wool no longer paid an
ad
valorem duty, the collector would no longer call on the
appraisers to estimate its value. It is to be noticed, however,
that this exemption did not make wool, as an article, cease to be
dutiable. Nor did it become, after this change, any less important,
in
regulating the duty which was proper to be imposed on
any wool, to ascertain the true value of it in all cases, so as to
levy thereon four cents per pound and forty percent
ad
valorem, if the value turn out to be above eight cents per
pound, and nothing if at or below eight cents.
See the
first section, 4 Lit. & Brown's ed. 583.
This act may then be considered to authorize the use of
appraisers not merely when an article imported pays an
ad
valorem rate of duty, but whenever the duty is
regulated by the value -- or in other words, as we
construe the provision, whenever a duty may exist or cease
according to the value, as well as whenever it may increase or
diminish, according to it. The language of the seventh section is
broad enough under this view to justify the course that was adopted
by the collector in the present case. But if we look to the spirit
of that section and of the whole act of which it forms a part in
respect to the policy both of employing appraisers and
discriminating in the duties imposed on wool, any remaining doubt
as to the propriety of considering this case as coming within the
seventh section must be removed. If the appraisers could not be
called on to estimate the true value of the wool when imported at
low prices, but the value in the invoice was alone to guide, the
revenue on all wool was manifestly liable to be lost, or the
Treasury greatly defrauded, by the article being put in the invoice
at a price below the actual value in order to introduce it free.
Any incidental
Page 45 U. S. 334
protection, contemplated from the duty, to the growth of finer
and more valuable wools in this country would also be thus exposed
to total defeat by the importation of this last kind at a valuation
so low as to escape any duty whatever.
The utility of appraisers in such a case is even more apparent
and important than in most others, because the value of wool is
uncertain, fluctuating, and liable to be concealed by many
ingenious devices -- lowering the prices in the invoice, and others
putting different qualities of wool in the same bale, or bringing
it in mixed with dirt and burrs. It is on this last account, and
not, as argued for the plaintiffs, because it is the only case in
which the appraisers were authorized to act in respect to wool,
that the second section requires them, in estimating its value, if
mixed, to appraise it as high as if not mixed. In like manner, the
act of 1832, as well as 1828, requires wool imported on the skin to
be taxed according to its "weight and
value," as in other
cases. And instead of either of these provisions' appearing to
exclude the use of appraisers generally for ascertaining the true
value of low-priced wool, they both seem to contemplate or imply
their employment in such imports, knowing that the duty was to be
affected or regulated by the value, and proceeding therefore merely
to lay down specific rules for ascertaining it in cases where the
wool is found to be mixed or on the skin.
It is not a little confirmatory of this view that the Sct of
August 30, 1842, which imposes some duty on all kinds of wool, and
thus confessedly authorizes an appraisement in every importation,
repeats substantially the provisions in former acts for guiding the
appraisers in estimating the value of mixed wool, thus showing with
absolute certainty that such provisions do not in other acts
exclude -- or can probably in the present case be meant to exclude
-- the employment of appraisers in ascertaining the true value of
wool, however low it is put in the invoice and however unmixed it
may be with other materials.
The only adjudged case which has been alluded to by the
plaintiffs as supporting their views is that of
Curtis v.
Martin, 3 How. 106.
There, the article in question, being gunny bags, had not, at
the time the duty was levied, been specified in the tariff laws, as
subject to any duty whatever in any form or value. The effort by
the collector was to impose a duty on it under another name, such
as cotton bagging. But in the present case, the article in dispute
had been made by Congress dutiable in express terms, and no kinds
of it were exempt unless of a particular value, and the object and
the effect of the appraisement were not, as has been contended, to
make the article of wool dutiable when it was not before dutiable
by law, but to see whether a particular import of the article
Page 45 U. S. 335
was actually of so small value per pound as by law to be
entitled to exemption from duty.
The other leading objection urged in this case is more easily
disposed of. In saying that the appraisers had no right to act
without the previous request of the collector and that no such
request appears in the evidence, nothing is stated beyond the
truth. But in the absence of testimony to the contrary, the legal
presumption is that the appraisers and collector both did their
duty, he requesting their action, as by law he might, and they
complying.
Beside this, it is conceded that he adopted their doings, and
such a subsequent ratification of them is undoubtedly tantamount to
having requested them. An incidental exception taken in the
argument is that as the jury has found the value in the invoice to
be correct, the collector could not be justified in following the
higher valuation of the appraisers. But an appraisal, made in a
proper case, must be followed or the action of the appraisers would
be nugatory and their appointment and expenses become unnecessary.
Tappan v. United States, 2 Mason's 404. The propriety of
following it cannot in such case be impaired by the subsequent
verdict of the jury differing from it in amount, as the verdict did
not exist to guide the collector when the duty was levied, but the
appraisal did, and must justify him, or not only the whole system
of appraisement would become worthless, but a door be opened to a
new and numerous class of actions against collectors, entirely
destitute of equity. We say "destitute of it" because, in case the
importer is dissatisfied with the valuation made by the appraisers,
he is allowed, by the Act of Congress of May 28, 1830, before
paying the duty, an appeal and further hearing before another
tribunal constituted in part by persons of his own selection.
See second section, 4 Lit. & Brown's ed. 409.
These persons have been aptly denominated a species of
"legislative referees," 2 Mason 406, and if the importer does not
choose to resort to them, he cannot with much grace complain
afterwards that any overestimate existed.
The judgment below is affirmed.
