By the Tariff Act of 1842, the custom house appraisers are
directed to ascertain, estimate and appraise by all reasonable ways
and means in their power the true and actual market value of goods
&c., and have power to require the production, on oath, of all
letters, accounts, or invoices relating to the same. If the
importer shall be dissatisfied with the appraisement, he may appeal
to two merchant appraisers.
Where there was an importation of Peruvian bark, and the
appraisers directed a chemical examination to be made of the
quantity of quinine which it contained, although the rule may have
been inaccurate, yet it did not destroy the validity of the
appraisement.
The importer having appealed, and the appraisers having then
called for copies of letters &c., the importer withdrew his
appeal without complying with the requisition. The appraisement
then stands good.
The appraisers having reported the value of the goods to be more
than ten percent above that declared in the invoice, the collector
assessed an additional duty of twenty percent under the eighth
section of the Act of 1846, 9 Stat. 43. This additional duty was
not entitled to be refunded, as drawback, upon reexportation.
This case was an action brought by Bartlett against Kane, who
was the collector of the port of Baltimore, for the refunding of
certain duties alleged to be illegally exacted upon the importation
of Peruvian bark.
The circumstances of the case are fully stated in the opinion of
the court.
Page 57 U. S. 269
MR. JUSTICE CAMPBELL delivered the opinion of the Court.
This suit was commenced by the plaintiff as consignee of six
hundred and fourteen seroons of Peruvian bark imported into the
port of Baltimore and entered at the custom house for an excess of
duties charged by the defendant as collector and paid under
protest. Two hundred seroons of the first quality were entered for
consumption, and the remainder for warehousing. On the 4th of
October, 1849, the appraisers of the custom house reported the
value of the invoice to be ten percent and more above the value
declared by the agents of the plaintiff who made the entry, and in
consequence the collector, besides the legal duty of fifteen
percent
ad valorem, assessed an additional duty of twenty
percent under the eighth section of the Act of 1846, 9 Stat. 43, c.
74, for undervaluation. On the 6th of October, 1849, the plaintiff
duly protested against the appraisement and requested that the case
might be submitted to merchant appraisers as provided by law. After
notice of the appeal, the same day, the permanent appraisers
required the plaintiff
"to produce all their correspondence, letters, and accounts
relative to the shipment and to make a deposition that the
documents furnished were all that he had concerning the
shipment."
In reply to this, some five days after, the plaintiff instructed
his agents that it would be tedious and difficult to comply with
the requisition in consequence of the volume of the correspondence,
says he cannot understand what use the appraisers could make of
them, as they had made their report, that he should defer their
presentation for another tribunal, and that he withdraws his
appeal, and will pay the duties under protest. He still insists
upon the overvaluation, but offers to settle at that rate provided
the additional duty is not charged. He says that this exaction is
illegal, and they can test it at their leisure. That he had been
advised that an appeal appraisement might interfere with his rights
in a court of justice.
These letters of the plaintiff were submitted to the permanent
appraisers, who replied they could make no alteration of their
estimate, and the appeal of the plaintiff was withdrawn. The
plaintiff paid the entire duties exacted upon the appraised value
of the entire import, including those entered for consumption
as
Page 57 U. S. 270
well as warehousing, and an additional duty of twenty percent
for undervaluation. These sums were paid under protest. A portion
of the bark was exported, and upon this the plaintiff became
entitled to drawback, which was paid to the extent of the regular
duty, but the additional duty was not refunded.
The complaint of the plaintiff is that the appraisers, instead
of estimating the value of the Peruvian bark according to the cost
price in the markets of its production, under the directions of the
Secretary of the Treasury caused a chemical analysis of samples to
be made to ascertain the quantity of sulphate of quinine it
contained, and, having ascertained its relative intrinsic value
with other imports of the same article, regulated its appraised
value by a comparison with the cost of such imports. The facts and
the complaint were submitted to the Secretary of the Treasury, who
replied as follows:
"It appears from the report of the United States appraisers
dated 20 October last that the dutiable value of the article in
question having been estimated and sustained by them in conformity
with law, it was found that the appraised value exceeded, by ten
percent or more, the value declared in the entry, and that an
appeal from this appraisement, entered by the importer, was
subsequently withdrawn by him. Under these circumstances, it
necessarily follows that the original appraisement, made by the
United States appraisers, is to be taken as final and conclusive in
determining the dutiable value, and that such value, exceeding by
ten percent or more the value declared in the invoice and entry,
the 'additional duty' of twenty percent, as provided in the eighth
section of the Tariff Act of 1846, is chargeable under the law in
addition to the regular tariff rate of fifteen percent
ad
valorem levied on the enhanced value of the article in
question. A supplemental question in reference to this importation
having been submitted to the department, under date of 7th instant
-- namely whether the importer is not entitled to the return of
that portion of the 'additional duty' paid on that part of the
importation withdrawn from warehouse by the importer and exported
from the United States -- I have to advise you that upon a careful
examination of the subject, it is the opinion of the department
that the 'additional duty' imposed in all cases of undervaluation,
to a certain extent, was intended and must be considered as
entirely distinct in character and object from the regular tariff
rates of duty exclusively in view when the laws regulating the
drawback of duties were enacted, and that consequently no return of
such 'additional duty' could be legally made as debenture. It is
thought proper to add that the practice heretofore pursued under
the instructions of the department has been uniformly governed by
these views. "
Page 57 U. S. 271
Much evidence was given at the trial to prove that the value
declared by the agents of the consignee at the time of the entry
was strictly accurate, and that the rule of valuation adopted at
the custom house was deceptive, and injurious to the importer.
The conclusions of the Secretary of the Treasury, as before set
forth, were sustained in the circuit court, and form the subject
for examination in this Court.
By the sixteenth section of the Tariff Act of 1842, 5 Stat. 563,
c. 270, it is prescribed to the appraisers, 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, any
invoice or affidavit thereto to the contrary notwithstanding, of
the said goods, wares, and merchandise at the time purchased and in
the principal markets of the country wherever the same shall have
been imported into the United States, with the proviso that
whenever the same shall have been imported into the United States
from a country in which the same have not been manufactured and
produced, the foreign value shall be appraised and estimated
according to the current market value, or wholesale price of
similar articles at the principal markets of the country of
production or manufacture at the period of the exportation of said
merchandise to the United States. The seventeenth section of the
act authorizes the appraisers to call before them and examine upon
oath the owner, importer, consignee, 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 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 respectively authorized to administer oaths
and affirmations, and if any person so called shall neglect or
refuse to attend, or shall decline to answer, or shall, if
required, refuse to answer in writing any interrogatories or
produce such papers, he shall forfeit and pay to the United States
the sum of one hundred dollars, and if such person be the owner,
importer, or consignee, the appraisement which the said appraisers
. . . may make of the goods, wares, and merchandise, shall be final
and conclusive, any act of Congress to the contrary
notwithstanding. . . ."
"Provided that if the importer, owner, agent, or consignee of
any such goods shall be dissatisfied with the appraisement and
shall have complied with the foregoing requisitions, he may
forthwith give notice to the collector, in writing, of such
dissatisfaction, on the receipt of which the collector shall select
two discreet and experienced merchants, citizens of the United
Page 57 U. S. 272
States familiar with the character and value of the goods in
question to examine and appraise the same agreeably to the
foregoing provisions, and if they shall disagree, the collector
shall decide between them, and the appraisement thus determined
shall be final and deemed and taken to be the true value of the
said goods, and the duties shall be levied thereon accordingly, any
act of Congress to the contrary notwithstanding."
The plaintiff contends that the rule of appraisement by which
the dutiable value of the said goods was raised, and the importer
was subjected to the additional duty prescribed by the eighth
section of the act of 1846, was illegal and void, and the duties
thus claimed and paid under said appraisement were illegally
exacted. It may be admitted that the rule, if strictly applied,
would in many cases lead to erroneous results and could not be
relied upon as a safe guide in any case, but this admission does
not establish the nullity of the appraisement. The appraisers are
appointed "with powers, by all reasonable ways and means, to
ascertain, estimate, and appraise the true and actual market value
and wholesale price" of the importation. The exercise of these
powers involves knowledge, judgment, and discretion. And in the
event that the result should prove unsatisfactory, a mode of
correction is provided by the act. It is a general principle 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 binding and valid as to
the subject matter. The only questions which can arise between an
individual claiming a right under the acts done, 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 is provided for
or other revision by some appellate or supervisory tribunal is
prescribed by law.
United States v.
Arredondo, 6 Pet. 691.
The interference of the courts with the performance of the
ordinary duties of the executive departments of the government
would be productive of nothing but mischief, and we are satisfied
that such a power was never intended to be given to them.
Decatur v.
Paulding, 14 Pet. 499.
The interposition of the courts in the appraisement of
importations would involve the collection of the revenue in
inextricable confusion and embarrassment. Every importer might feel
justified in disputing the accuracy of the judgment of the
appraisers, and claim to make proof before a jury, months and even
years after the article has been withdrawn from the control of the
government and when the knowledge of the
Page 57 U. S. 273
transaction has faded from the memories of its officers. The
consignee, after he has been notified of the appraisement, is
authorized to appeal, and pending the appeal we can see no reason
why he may not negotiate with the officers of the customs to
correct any error in their judgment. We do not perceive a reason
for holding that their control of the subject is withdrawn by the
fact of the appeal. The appeal is one of the reasonable ways and
means allowed to the importer for ascertaining the true and
dutiable value, paramount in its operation to any other when
actually employed, but until employed not superseding those
confided to the officers. We think, therefore, that the permanent
appraisers under the sanction of the collector, which is to be
presumed, when informed that their decision was contested, had the
right to call for the production of the correspondence, and that
the plaintiff could not have prosecuted the appeal without a
compliance with the requisition.
In this case, the plaintiff neither complied with the
requisition nor prosecuted the appeal, but withdrew it and settled
the duties on the basis of the appraisement of the permanent
appraisers. After this, we think he could not dispute the exactness
of the appraisement. In
Rankin v.
Hoyt, 4 How. 327, being the case of a disputed
appraisement, the jury found the invoice to be correct, and it was
urged that the collector could not be justified in following the
higher valuation of the appraisers. The Court said
"that 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. The propriety of
following it cannot in such a 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, before paying the duty, an
appeal and further hearing before another tribunal."
In the case before us, the plaintiff withheld the information
which might have satisfied the officers of the government after a
legal requisition upon him. He abandoned the claim for a hearing
before "persons familiar with the character and value of the goods
in question," "discreet and experienced merchants," and preferred a
tedious and vexatious litigation. We think, as was said by the
Court in the case above cited, "he cannot with much grace, complain
afterwards that any overestimate existed."
Page 57 U. S. 274
We shall now inquire whether, upon the re exportation of the
Peruvian bark entered for warehousing, the plaintiff was entitled
to a return of the twenty percent of additional duty charged upon
the portion so exported.
An examination of the revenue laws upon the subject of levying
additional duties, in consequence of the fact of an undervaluation
by the importer, shows that they were exacted as discouragements to
fraud, and to prevent efforts by importers to escape the legal
rates of duty. In several of the acts, this additional duty has
been distributed among officers of the customs upon the same
conditions as penalties and forfeitures. As between the United
States and the importer, and in reference to the subject of
drawback and debenture, it must still be regarded in the light of a
penal duty.
The provision for the return of the duty upon a reexportation
formed a part of the system of regulations for importation and
revenue from the earliest period of the government, and has always
been understood to establish relations between the regular and
honest importer and the government.
It does not include in its purview any return of the forfeitures
or amercements resulting from illegal or fraudulent dealings on the
part of the importer or his agents. Those do not fall within the
regular administration of the revenue system, nor does the
government comprehend them within its regular estimates of supply.
They are the compensation for a violated law, and are designed to
operate as checks and restraints upon fraud and injustice. A
construction which would give to the fraudulent importer all the
chances of gain from success and exonerate him from the
contingencies of loss would be a great discouragement to rectitude
and fair dealing. We are satisfied that the existing laws relating
to exportations, with the benefit of drawback, do not apply to
relieve the person who has incurred, by an undervaluation of his
import, this additional duty from the payment of any portion of
it.
Our conclusion is there is no error in the record, and the
judgment of the circuit court is
Affirmed.
Order
This cause came on to be heard on the transcript of the record
from the Circuit Court of the United States for the District of
Maryland, and was argued by counsel. On consideration whereof, it
is now here ordered and adjudged by this Court that the judgment of
the said circuit court in this cause be, and the same is hereby
affirmed with costs.