Under the proviso to the Act of March 3, 1857, 11 Stat. at Large
192, which act allows an importer to make additions to the value of
goods as given in the entry or invoice, and which proviso
provides
"That under no circumstances shall the duty be assessed upon an
amount less than the invoice or entered value, any law of Congress
to the contrary notwithstanding,"
and the act of the same day (
ib., 199), which enacts
that unmanufactured sheep's wool above the value of 20 cents shall
pay an
ad valorem duty of 24 percent, but if "of the value
o� 20 cents or less, at the place of exportation, shall be exempt
from duty," the invoice and entered value (which in this case was
the actual cost), and not any lower market value of the goods at
the date and place of exportation, is the value upon which the duty
is to be assessed.
Page 77 U. S. 437
The fifth section of an Act of March 3, 1857, [
Footnote 1] "reducing the duties on
importations and for other purposes," imposes an
ad
valorem duty of 24 percent on unmanufactured wool, but exempts
from duty such wool (being sheep's) "of the value of 20 cents per
pound or less at the place of exportation."
Another act of the same day, amendatory of an act of 1846,
allows the importer to make such addition in the entry to the cost
or value of the imports given in the invoice as in his opinion may
raise the same to the true market value in the country whence
exported. The collector is then to have them appraised, and if the
appraised value exceeds by 10 percent the value declared as above
on entry, a duty of 20 percent
ad valorem is to be added
to the duty imposed by law. And the act concludes:
"
Provided nevertheless that
under no
circumstances shall the duty be assessed upon an amount
less than
the invoice or entered value, any law
of Congress to the contrary notwithstanding."
This enactment and this proviso being in force, Mr. Cobb, then
Secretary of the Treasury, made in September, 1857, soon after the
passage of them, a decision thus:
"In estimating the foreign value of wool with reference to its
exemption from or liability to duty, the appraisers can determine
such value
independently of the invoice, by prices current
and other reliable means of information, of the value of the
article in foreign markets, such as they employ in ascertaining the
foreign values of other staple articles of import."
In this state of things, Kimball bought at Cape Town, Africa, a
quantity of wool of the sort above mentioned at 10 pence sterling
(somewhat more than 20 cents federal money) a pound. He did not,
however, ship it at once, but kept it on hand at Cape Town. Some
months, afterwards -- that is to say in June, 1861, he shipped it
to the United States, the price of wool at the date of shipment
having
Page 77 U. S. 438
fallen to 8 1/2 pence per pound (less than 20 cents federal
money). The wool, however, was invoiced in accordance with the
requirements of law at its actual cost, 10 pence sterling per
pound, and was entered according to the invoice value, which of
course made it dutiable at the rate of 24 percent
ad
valorem.
The appraisers reported upon the invoice:
"
Value correct in English weight, April 25, 1861."
This report was in accordance with a custom prevailing in their
department to make invoices in this manner, in which the price
stated is high enough to cover the market value, and the duties,
$15,651, were accordingly assessed upon it at this value.
After the appraisers had made their report and duties had been
estimated on the wool, but before payment of them by the importer,
the collector requested the appraisers to make a reexamination of
this wool and a formal appraisement of its value. The appraisers,
in reply, declined to make any appraisement of it at less than the
invoice price, giving as a reason that they could not do this by
law; but, at the collector's request, they made to him a statement
in writing, which they expressly declared was not an official
appraisement, in which they stated the market value of this wool in
the principal markets of the country from which it was exported, to
have been at the time of its exportation, 8 pence 3 farthings per
pound, less than 20 cents federal money, and a rate at which the
wool would, of course, have been duty free.
The decision of Mr. Cobb was not brought to the knowledge of the
appraisers at the time of their appraisement of this wool.
The importer having complied with all the technical and formal
requirements necessary to enable him to maintain an action under
the act of Congress against the collector for the recovery of
duties illegally exacted, brought the suit below to recover these,
it being agreed by the parties that if, upon the case stated, the
value of this wool, as far as the
Page 77 U. S. 439
laws of the United States were concerned, could be considered as
less than its invoice price, then judgment should be for the
importer; otherwise for the collector.
The court below gave judgment for the collector, and the
importer brought the case here, the question, and the only
question, being whether, taking into consideration the language of
the first statute of 1857 and also that of the proviso to the other
act of the same day, the collector should have allowed this wool to
be entered free when the price stated in the invoice was more than
20 cents and its actual value was less.
Page 77 U. S. 444
MR. JUSTICE CLIFFORD delivered the opinion of the Court.
Import duties, illegally exacted, if paid under written protest
"signed by the claimant," setting forth distinctly and specifically
the grounds of objection to the payment, may be recovered back in
an action of assumpsit against the collector. [
Footnote 2]
Recent enactments have annexed certain other conditions of a
very important character to the right of action in such cases, but
it is not necessary to enter into those details, as
Page 77 U. S. 445
none of the new provisions have any application in the case
before the court. [
Footnote
3]
Four hundred and ninety-one bales of wool were imported in the
month of June, 1861, into the port of Boston by the plaintiff or
his intestate, and the agreed statement shows that the wool was
duly entered at that port for consumption. Duties were assessed
upon the same to the amount of fifteen thousand six hundred and
fifty-one dollars and eighty cents, and the plaintiff or his
intestate paid the same, having first complied with all the formal
conditions to enable him to maintain the present action.
Wool unmanufactured, of the value of twenty cents per pound or
less at the port of exportation, was at that time entitled to be
admitted to entry free of duty, but wool unmanufactured, "imported
from abroad," of greater value than twenty cents per pound at the
port of exportation, was subject to an
ad valorem duty of
twenty-four percent, as imposed by the act reducing the duty on
imports and for other purposes. [
Footnote 4]
By the agreed statement it appears that the wool imported in
this case was shipped in the barque
Vatella, which sailed
from Cape Town on the twenty-fifth of April prior to the
importation, but it also appears that the wool was purchased by the
shippers at that place several months before the barque sailed.
They purchased it at ten pence sterling per pound, as stated in the
invoice, and the parties agree that the price given in the entry at
the custom house is the same as that given in the invoice, and that
both correspond with the actual cost of the wool at the place of
exportation.
American ships bringing goods from any foreign port into the
United States are required to have on board a manifest signed by
the master describing the goods and the vessel and giving the name
of the port where the goods were shipped and the name of the port
to which they are consigned. [
Footnote 5]
On arriving within four leagues of our coast, the master
Page 77 U. S. 446
of such ship is required, if the proper officer of the customs
comes on board, to produce such manifest to such officer for his
inspection, and he is also required, within twenty-four hours from
the time the vessel arrives at a port of the United States where an
officer of the customs resides, to report that fact to the
collector or chief officer of the customs at that port. [
Footnote 6]
Goods imported from any foreign port or place are required to be
landed in open day, and the act of Congress provides that such
goods shall not be landed or delivered from the ship without a
permit from the collector and naval officer, if any, for such
unlading and delivery. Authority to grant such a permit does not
exist, if the goods are intended to be entered for consumption,
until the duties are paid or secured to be paid, and the duties are
never paid nor are they ever secured to be paid in such a case
before the importation is complete and the goods are entered at the
custom house. Such an entry -- that is, an entry for consumption --
must be in writing and must be made by the owner, consignee, or
agent to the collector of the district within fifteen days from the
time the master reports the arrival of the vessel, and the person
making the entry must also produce to the collector the original
invoice or invoices, or other documents received in lieu thereof or
concerning the same, in the same state in which they were received,
with the bills of lading.
Examination of the entry, as presented by the owner, consignee,
or agent is usually made by the entry clerk, and if found to be
correct, the collector proceeds
to estimate the duties "on the
invoice value and quantity," and if the
estimated
amount of the duties is paid or
secured to be paid as
required by law, the collector is then authorized to grant a permit
for the discharge and landing of the cargo. Until those acts are
performed, no one has any authority to grant a permit or to remove
the hatches, but the inspector remains in charge of the vessel.
Page 77 U. S. 447
Import duties, it will be observed, are estimated in the first
place, if they are
ad valorem, on the invoice value and
quantity as shown in that document unless additions are made to the
same by the owner, consignee, or agent, in the entry at the custom
house, and in that state of the case the duties are estimated on
the invoice value and quantity together with those additions to the
same, but in either event the duties are estimated at that stage of
the proceedings without any appraisal.
Evidently it must be so, as the estimated duties are required to
be paid or to be secured to be paid before the permit is granted to
remove the hatches, and before the goods are landed from the
vessel.
Such duties so estimated may be paid at the time, or, what is
more usual, they may be secured to be paid by depositing the amount
in gold with the collector, subject to an equitable adjustment when
the duties are liquidated and the correct amount of the same is
ascertained by such subsequent proceedings as are prescribed by law
for that purpose.
Subsequent proceedings are essential to the ends of justice, as
computations based solely on the invoice value and quantity will
seldom prove to be correct, as the values expressed in the invoice
may be less than the true market value of such imports in the
principal markets of the country whence the importation was made,
or articles imported may have been omitted in the invoice, or
articles contained in the invoice may have been lost during the
voyage, or the actual quantities as ascertained by the weighers,
gaugers, or measurers may differ from those given in the invoice
and entry. Corrections of the kind are frequently necessary, but
they are never made until the goods are landed and appraised.
Collectors are required by law to cause the dutiable value of
imported goods subject to an
ad valorem rate of duty to be
appraised, estimated, and ascertained, and the provision is that if
the appraised value shall exceed by ten percentum the value so
declared in the entry, the goods are subject to a duty of twenty
percent
ad valorem on such appraised value
Page 77 U. S. 448
in addition to the rate imposed where no such undervaluation is
shown. [
Footnote 7]
Penalties of the kind, however, may be avoided if the
undervaluation in the invoice is corrected in the entry at the
custom house, as the same section provides that it shall be lawful
for the owner, consignee, or agent of imports which have been
actually purchased, or procured otherwise than by purchase, on
entry of the same to make such addition in the entry to the cost or
value in the invoice as in his opinion may raise the same to the
true market value of such imports in the principal markets of the
country whence the importation shall have been made.
Additions may be made to the cost or value of the goods as given
in the invoice to raise the same to the true market value, but the
additions, in order that they may have effect to avoid the
additional duty of twenty percent, must be made before or at the
time of the entry, as no such corrections can be made afterwards,
or, in other words, the additions, if any, must be made before the
permit is granted and before the goods are landed, because if they
are not made before those acts are performed the additions made to
the cost or value given in the invoice would not become a part of
the dutiable value in estimating the duties prior to the appraisal,
and if the appraisers should report that the invoice value was
correct the amount of the additions would escape taxation
altogether. Nothing remains to be done subsequent to the granting
of the permit and the landing of the goods except such acts as are
required by law to correct any errors in the invoice and to
liquidate the duties, as the express provision in the principal
collection act is that all the duties on goods, wares, and
merchandise shall be paid or be secured to be paid before a permit
shall be granted for landing the same. [
Footnote 8]
Before the permit is granted, it is the duty of the owner,
consignee, or agent to present the invoice to the collector and
make the entry in the form required by law, and thereupon
Page 77 U. S. 449
the collector certifies the invoice and grants the permit in due
form for the discharge and landing of the cargo, first designating
the packages, at least one in ten, to be sent to the public store,
and marks the same on the entry, invoice, and permit. [
Footnote 9]
Packages intended for examination by the appraisers are usually
sent to the public store for that purpose, but cumbrous articles
may be examined on the wharf where they were landed, and samples
may, in certain cases, be used for the same purpose instead of the
packages from which they were selected by the sampler.
Pursuant to the usual practice the goods in this case were
entered for consumption according to the invoice value, to-wit, at
ten pence sterling per pound, expressed in decimals, which made the
wool dutiable at the rate of twenty-four percent
ad
valorem.
Tested by the facts of the case as given in the agreed
statement, it is clearly to be inferred that the preliminary
proceedings were correct; that the invoice was seasonably presented
to the collector; that the entry of the goods was regularly made
for consumption; that the duties were properly estimated on the
invoice value and quantity; that the duties as thus estimated were
duly paid or secured to be paid before the permit was granted; that
the permit was subsequently granted in due form for the landing of
the goods, and that one in ten of the packages was ordered to the
public store for the examination of the local appraisers. Prior to
that stage of the proceedings, the appraisers have no jurisdiction
of the case, and they have no duty to perform in the premises.
Beyond doubt, the collector may direct that all packages shall
be examined, but he is required to designate on the invoice at
least one package of the same, and one package at least of every
ten packages of the importation, and the direction is that he shall
order the same to the public stores to be opened, examined, and
appraised. All those requirements
Page 77 U. S. 450
having been fulfilled, the appraisers are furnished with the
original invoice which contains the marks of the collector,
designating the packages sent to the public stores for their
examination.
Briefly stated, their duty is to appraise, estimate, and
ascertain the true market value of such imports in the principal
markets of the country whence such importation was made, and to
report their doings to the collector. They examined the packages
sent to the public stores, and the agreed statement shows that they
reported upon the invoice "value correct," in accordance with the
prevailing custom to mark invoices in that manner in cases where
the price given in the invoice was high enough to cover the market
value.
Complaint is made that the custom does not allow the appraisers
to reduce the invoice value when it is greater than the true market
value, but the decisive answer to that complaint is that the act of
Congress authorizing the appraisal of the importation expressly
provides "that under no circumstances shall the duty be assessed
upon an amount less than the invoice or entered value" of the
importation. Where the entered value is the same as the invoice
value the legal effect of the requirement is the same as it was in
the prior act which did not contain the words entered value, but in
cases where the owner, consignee, or agent makes additions to the
value expressed in the invoice to avoid the penalty of twenty
percent, the words "entered value" have a special application, and
in those cases the duty cannot be assessed upon an amount less than
the entered value, which includes the value expressed in the
invoice and the additions made thereto by the owner, consignee, or
agent before or at the time the goods were entered at the custom
house.
Ten pence sterling per pound was the actual cost of the wool at
the time it was purchased, and the price actually paid for the wool
is the value expressed in the invoice, and the same value is given
in the entry made by the consignee, and the agreed statement shows
that the appraisers reported that the invoice value was correct,
and if the matter had
Page 77 U. S. 451
stopped there the case would be too plain to admit of any
controversy, as it would show that every requirement of law had
been followed without the least departure, and that nothing had
been done to which the plaintiff or his intestate objected at the
time the act was performed, as he made the entry and gave therein
the value expressed in the invoice as the true market value of the
imports in the principal markets of the country whence the
importation was made. [
Footnote
10]
"Value correct," was the report of the appraisers when they
returned the invoice to the collector, and the duties were
liquidated and assessed upon that amount as the true dutiable value
of the goods, but before the duties were paid by the consignee as
liquidated, the collector requested the appraisers to make a
reexamination of the wool and "a formal appraisement of its value,"
but they declined to make any appraisement of it at less than the
invoice price, giving as a reason that they could not do so by law,
evidently referring to the provision in the appraisement act that
under no circumstances shall the duty be assessed upon an amount
less than the invoice or entered value. At the collector's request,
however, they made a statement to him in writing, "which they
expressly declared was not an official appraisement, in which they
stated" that the market value of the wool at the time it was
exported, in the principal markets of the country where it was
purchased, was eight pence and three farthings per pound, at which
rate the wool would have been entitled to entry free of duty.
Prices of wool had declined at that port subsequent to the purchase
in this case and before the barque sailed, so that the wool might
have been purchased at the time it was exported at the reduced
price named by the appraisers.
Ad valorem duties were always estimated, prior to the
act of the 20th of April, 1818, by adding a prescribed percentage,
including charges and commissions, to the actual cost of the goods
at the place where the same were purchased and exported, the actual
cost being ascertained by the invoice. [
Footnote 11]
Page 77 U. S. 452
Whenever, in the opinion of the collector, there was just ground
to suspect that goods subject to an
ad valorem duty, and
imported into his district, had been invoiced below the true value
of the goods in their actual state of manufacture at the place from
which they were imported, the collector, by the act last cited, was
authorized to direct that the goods should be appraised in the
manner prescribed in the ninth section of that act, which was the
first authority of the kind conferred in the acts of Congress in
cases where the entry was accompanied by the invoice, as required
by law. Such duties were required to be estimated, by the Act of
the first of March, 1823, by adding all charges except insurance
and a prescribed percentage to the actual cost of the goods if the
same were purchased, or by making the same additions to the actual
value of the goods if they were procured otherwise than by
purchase, or by making the same additions to the appraised value of
the goods if the same were appraised, except in cases where the
goods were subject to a certain penalty, and the express provision
was that the rates of duties should be estimated on such aggregate
amount. Goods imported from foreign countries could not be admitted
to entry unless the invoice accompanied the entry, nor unless the
invoice was verified by oath, and neither the act under
consideration nor the first collection act gave the collector or
the appraisers any authority to reduce the price or value of the
goods as expressed in the invoice. [
Footnote 12]
Dutiable values of imported goods, subject to an
ad
valorem rate of duty, were required by the act of the
thirtieth of July, 1846, to be estimated and ascertained by
appraisement, adding costs and charges as therein prescribed, but
the provision was that under no circumstances "shall the duty be
assessed upon an amount less than the invoice value." [
Footnote 13]
Costs and charges, except insurance, were also required to be
added to the appraised value by the act of the third
Page 77 U. S. 453
of March, 1851, but the act vested no authority either in the
collector or the appraisers to reduce the valuation of the goods
below the invoice or entered value, and no such authority,
applicable in this case, is found in any act of Congress passed
prior to the time when the entry before the court was made at the
custom house. [
Footnote
14]
On the contrary, the act of Congress under which the appraisers
acted in this case expressly provides, as before explained, that
under no circumstances shall the duty be assessed upon an amount
less than the invoice or entered value, the substance of which
provision has been in force for a quarter of a century. [
Footnote 15]
Importers are required to make an entry of their importations,
which should always be accompanied by the invoice, duly verified by
oath, and when the entry is made and the permit granted the
packages for appraisement are designated on the invoice by the
collector who orders one in ten of them to the public store for the
purpose of appraisal. Examination of the selected packages is then
made by the appraisers, who report their doings to the collector,
and if no appeal is taken from their appraisement, either to the
general appraisers or to the Secretary of the Treasury, their
decision in the premises is final and conclusive as to the dutiable
value of the importation. [
Footnote 16]
Appraisers, it is said, are to appraise, estimate, and ascertain
the true market value of such imports, whether of greater or less
value than that expressed in the invoice and entry; but the
decisive answer to that suggestion is that their duties are
regulated by the act of Congress under which they act, and inasmuch
as it is provided that the duties shall not under any circumstances
be assessed upon an amount less than the invoice or entered value,
it is clear that the appraisers have no authority to make any such
appraisement as that which they were requested to make by the
collector. Redress for such a grievance, if it be one, must be
Page 77 U. S. 454
sought in Congress, as Congress and not the courts possesses the
power to lay and collect taxes, duties, imposts, and excises, and
to pass all laws which shall be necessary and proper to carry that
power into execution.
Extended remarks respecting the case of
Rankin v. Hoyt
[
Footnote 17] need not be
made, as the statement of the fact shows that the appraisers in
that case added to the value expressed in the invoice, and the
decision was founded upon the act of the fourteenth of July, 1832,
which did not contain the provision that the duties should not
under any circumstances be assessed upon an amount less than the
invoice or entered value, and consequently it is not an authority
which controls the present case.
Comment upon the fifth section of the tariff act under which the
goods were imported in this case may also be omitted for reasons of
a like character, as the section must be construed in view of the
proviso of the amendatory act passed on the same day, which
prohibits both the appraisers and the collector from making any
reduction in the invoice or entered value in the assessment of
ad valorem duties.
Judgment affirmed.
[
Footnote 1]
11 Stat. at Large 192, 199.
[
Footnote 2]
5 Stat. at Large 727;
The Assessor v.
Osbornes, 9 Wall. 571;
Nichols v. United
States, 7 Wall. 126;
Philadelphia v.
Collector, 5 Wall. 731.
[
Footnote 3]
13 Stat. at Large 214.
[
Footnote 4]
11 Stat. at Large 192, 194.
[
Footnote 5]
1 Stat. at Large 644.
[
Footnote 6]
1 Stat. at Large 649.
[
Footnote 7]
1 Stat. at Large 673.
[
Footnote 8]
11 Stat. at Large 199.
[
Footnote 9]
Waring v.
Mayor, 8 Wall. 119; Gen.Reg. 1857, 145.
[
Footnote 10]
11 Stat. at Large 199.
[
Footnote 11]
1 Stat. at Large 41, 673; 3
id. 436.
[
Footnote 12]
3 Stat. at Large 732.
[
Footnote 13]
9
id. 43;
Shelton v. Austin, 1 Clifford
389.
[
Footnote 14]
9 Stat. at Large 630.
[
Footnote 15]
11
id. 199.
[
Footnote 16]
Belcher v.
Linn, 24 How. 521;
Bartlett v.
Kane, 16 How. 272;
Rankin v.
Hoyt, 4 How. 327;
Stairs
v. Peaslee, 18 How. 524.
[
Footnote 17]
45 U. S. 4 How.
327.