or may not include additions. But under § 2908, the penalty only attaches where the additions have been made, and is intended to reach an abuse of the privilege of making additions. It in substance says, that additions may be made to escape the penalty of undervaluation for slight differences between the appraised and invoice value, but if the difference is as much as ten per cent., then the penalty is imposed for this large addition made to the invoice value.1

Penalty under § 2909.-This penalty is entirely different from the others. It is imposed on a different amount and for a different offense. Under the act of 1846, the twenty per cent. penalty which we have noticed under § 2900, applied alone to the purchaser, but 17 of that act imposed a penalty on manufacturers or producers, where there was a difference between the appraised value and invoice value of ten per cent. This penalty was fifty per cent. on the duty on the importation. This section seems to be founded on § 17 of the act of 1846, but there is a slight difference. The penalty here is for variance, not between the appraised value and the invoice value, but between the invoice value and "the actual value to be appraised, estimated and ascertained as hereinbefore directed." This actual value which has been ascertained as hereinbefore directed, would be the dutiable value, for that was the object of the proceedings before directed. A difference, then, of ten per cent. between the dutiable value and the invoice value, imposes on the importer a penalty of twenty per cent. on the duty which would have been imposed if the goods had been fairly invoiced. There are three distinct penalties. The first, under § 2900, where there is a difference of ten per cent. between the entered value and the appraised value, of twenty per cent. on the appraised value. The second, under § 2908, where the additions made exceed the entered value by ten per cent., a penalty of twenty per cent. on the entered value. The third, under § 2909, where there is a difference of ten per cent. between the dutiable value and the invoice value, a penalty of twenty per cent. on the duty if the merchandise had been fairly invoiced. These penalties are collected just in the same manner as the duties assessed by the collector. There must be an actual appraisal before they are imposed. Goods were entered on the 2d of April, and before appraisal a corrected invoice was received from the producer. This was filed with the col

1 This seems to have been introduced in 1866, for the first time. 14 Stat. U. S. p. 330, 9. Exception as to carpet wools, 22 Int. Rev. Rec. 339, Treasury Circular No. 3007; Ibid. 297, Treasury Circular No. 2935.

2 Banneshall v. Redfield, 4 Blatch. C. C. 223; Bischoff v. Maxwell, 4 Blatch. C. C. 384; Belcher v. Lawrason, 21 How. 352; Stairs v. Peaslee, 18 How. 521; 21 Int. Rev. Rec. 91, instruction to collector at Boston.

lector on the 17th of April, with notice that the first invoice was made out in the absence of the owner. The difference between the two invoices being more than ten per cent., the twenty per cent. penalty was imposed. This was held to be error.1

§ 156. Revision of the Report of the Appraisers, Appeal therefrom, and from Decisions of the Collector.-It is the duty of the principal appraiser at the port to revise and correct the report of the assistant appraisers, and to report to the collector their decision thereon. If the collector deems the appraisement too low, he may order a re-appraisement, which may be made either by the principal appraisers, or by three merchants designated by him for that purpose, and the duties may be charged according to the re-appraisement.? There is no limit in the statute to the time within which this re-appraisement may be directed by the collector. The action of the collector was sustained in a case where the goods had been appraised once and delivered to the importer. The court say if from neglect, or want of proper evidence or information on the part of the appraisers, the appraisal is under the dutiable value, the collector should be permitted to correct the error under this power. No opinion was expressed as to the exercise of the power, if the goods had passed beyond the reach of the collector.

If the importer is dissatisfied with the appraisement, he may forthwith give notice to the collector, who selects one merchant to act with the general appraiser, or he may select two merchants. This tribunal then proceeds to examine the merchandise in the same manner as the appraisers did. If they do not agree, the collector, as an umpire, decides between them. The decision by this tribunal is final, and the value ascertained by them is the true value, and the duties are to be levied thereon.1

The latter part of this section is in seeming conflict with the view heretofore expressed, that in ascertaining the dutiable value under § 2907, if the importer is a purchaser we do not begin with the appraised value, but with the cost in the invoice. The language of § 2930 is sufficiently broad to include the case of a purchaser, but the distinction between a purchaser and one who procures his goods in some other manner, is a prominent feature of the customs laws from 1823 to 1857. The acts of 1842 and 1846, under which the appraised value was the basis of the dutiable value, was express in requiring charges and other items to be added to the appraised value, but

1 Howland v. Maxwell, 3 Blatch. C. C. 146. 3 Iasigi v. Collector, 1 Wall. 376.

2 R. S. U. S. § 2929.

4 R. S. U. S. § 2930.

§ 2907, in express words, requires the basis of the dutiable value to be either cost or actual wholesale price, and it is not to be supposed that in so important a matter as the basis of dutiable value, words whose meaning is well defined in the customs laws and the decisions thereon, would be used without reference to such laws and decisions.1

The merchant appraisers, or one merchant and a general appraiser, constitute a tribunal which exercises judicial functions. They are spoken of as quasi judges, or legislative referees. They constitute umpires between the permanent appraisers and the importer. A merchant appraiser cannot be removed, either by the collector or Secretary of the Treasury, except for misconduct; what misconduct would justify such action is not stated. But in that case the merchant appraiser was removed, because he wished time to be given to obtain further evidence upon which the tribunal could act. The removal was characterized as an act "that conflicted with all just notions of judicial independence or purity, and one which, if sanctioned as to a public referee, might shake confidence abroad as well as at home, in the administration of our revenue system as connected with commercial imports."

The report of this tribunal is treated as an award, and as a general rule, is to be attacked only for errors apparent on its face, so that even if it could be shown that the decision made was against the weight of evidence, it would not affect it. It cannot be attacked by matters dehors the report, except by showing misconduct in the appraisers, or that they did not decide the question referred to them. If it could be shown that they had merely ascertained the price paid for the article, and not its market value, that would make it a nullity. The rules and regulations made by the secretary under the acts of Congress cannot control the judgment of the appraisers. They are to act upon their judgment in the matter, from the evidence before them. If, however, the words of the report are doubtful in their meaning, parol testimony is admissible to explain the report. While the functions of this tribunal are undoubtedly judicial, the revenue department regards the duties of the persons composing the tribunal simply as those of experts, and in practice does not allow the examination to be conducted in judicial form, such as the appearance of the appellants by attorney, and cross-examination of witnesses. It is not even necessary that the re-appraisement should take place in the presence of the

1 21 Int. Rev. Rec. pp. 193, 194, 228, circulars of Secretary of Treasury. Greeley v. Thompson, 10 How. 234; Rankin v. Hoyt, 4 How. 327.

3 Tucker v. Kane, Taney's Decisions, 146.

4 Belcher v. Linn, 24 How. 508.

523 Int. Rev. Rec. 95; Treasury Circular, No. 2665.

importer. The merchant appraisers must be sworn by the collector or his deputy; it is not sufficient for them to be sworn by the general appraiser. If the proceedings of the merchant appraisers are regular, they are not at all affected by irregularities in the report of the government appraisers. Whether the appraisers have made the examination in accordance with the statute, is a question of fact to be determined by a jury.1

It is provided by statute that this re-appraisement shall be final and conclusive as to the true value of the articles imported, and the collector is to act upon it in imposing duties, and a remedy is provided by way of appeal from the decision of the collector. But the appraisement of the government appraisers is also final and conclusive unless the appeal provided for is taken in the mode prescribed. The powers of the appraisers require the exercise of knowledge, judgment and discretion, and "it is a general principle that when power or jurisdiction is delegated to any public officer or tribunal over a subjectmatter, 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 or fraud in the party; all other questions are settled by the decision made," unless an appeal or some other mode of revising the decision is provided. The appeal or notice of dissatisfaction with the report or decision of the government appraisers is a most important step to be taken by the importer, when the objection to the decision is not confined to a want of power to act, or a want of jurisdiction in the appraisers. Where the importer took an appeal, and after the appeal he was called upon by the appraisers for the production of his correspondence, which he refused to produce, but paid the duties under protest on the basis fixed by the appraisers, this was considered as a waiver of his appeal, and the decision of the appraisers was final.

The notice of appeal must be absolute, and not conditional. A notice to the collector that the appraisement is not satisfactory, and that, if desired, such evidence and statements would be produced to the collector as could be furnished to satisfy him of the correctness of the invoice value, is not sufficient. So where a written notice of dis

1 Bangs v. Maxwell, 3 Blatch. C. C. 135.

2 Vaccari v. Maxwell, 3 Blatch. C. C. 368; Schmaire v. Maxwell, 3 Blatch. C. C. 408. 3 Greeley's Administrator v. Burgess et al. 18 How. 413. 4 Ibid. 415.

5 U. S. v. Arredondo, 6 Peters, 69; Bartlett v. Kane. 16 How. 263, 273; Belcher v. Linn, 24 How. 508; Roller v. Maxwell, 3 Blatch. C. C. 142; McCall v. Lawrence, 3 Blatch. C. C. 360.

6 Bartlett v. Kane, 16 How. 263, 274.

Schmaire v. Maxwell, 3 Blatch. C. C. 408,

satisfaction was given, but on being asked if he desired an appraisement by merchant appraisers, the importer replied that he did not, or did not ask one, this was considered a qualification of the notice.1

The mere appeal does not set aside the report of the government appraisers. There must be a re-appraisement, and if the collector refuses to direct a re-appraisement, Justice Ingersoll thinks the only remedy of the importer would be a suit on the bond of the collector. The appraisement being final, the duties assessed thereon must be paid. Chief Justice Taney regards the exaction of duties by the coilector, on the basis of the report of the government appraisers, after an appeal and before re-appraisement, as illegal. Each of these cases make it the imperative duty of the collector to proceed to the re-appraisement on appeal being taken. The decision of the merchant appraisers is final not as to the importer alone, but the government also.'

The statute is express as to the right of the importer to appeal, but it does not point out when this right is to be exercised, but from the nature of the transaction it ought to be made at once. So soon as the importer has notice that the appraisement has been made, and that it differs from the invoice value, if he is not willing to abide by it, he should make it known. Unless he gives the notice of dissatisfaction, the collector proceeds to impose the penalty, if one has been incurred, and to estimate the duties which, prior to the general introduction of the warehouse and bond system, were required to be paid before the importer could take possession of his goods, or even unload them. He is entitled to the notice of the appraisement in order that he may exercise his right of appeal."

After the re-appraisement, or appraisement by merchant appraisers, as it is usually called, is completed, the collector then proceeds to estimate the duties on the goods imported. One of the guides of the collector, and a most important one, is the invoice. The importer produces at the time of his entry the original invoice, and the United States consul, who has one of the triplicates required to be made at the port of exportation, sends another to the collector of the port designated in the invoice as the destination of the merchandise. This invoice is required to be made out in the currency of the country of importation, and the first act on this subject fixed the relative value

1 Fielden v. Lawrence, 3 Blatch. C. C. 120.

Schmaire v. Maxwell, 3 Blatch. C. C. 408, 412.

3 Tucker v. Kane, Taney's Dec. 146.

5 Bartlett v. Kane, 16 How. 263, 273.

4

* Ibid. 146.

6 R. S. U. S. § 2838.