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1. APPELLATE JURISDICTION.
(a) Jurisdiction of the Board of General Appraisers-In cases upon Reappraisement. The decision of the Board of General Appraisers is final as to the dutiable value of merchandise, and where the Board acts within the limits of their statutory power and in good faith, their decision is not subject to protest or review by a federal circuit court upon a question involving merely the valuation and not the classification or rate of duty (T. D. 13491; G. A. 899, 1548, 2097, 2622; Passavant vs. United States, 148 U. S., 214; in re Fassett, 142 U. S., 479).
In cases upon protest. Section 14 makes the collector's decision final unless appealed from, as to the rate and amount of duties chargeable upon imported merchandise," and the Board would seem to have power to review, upon protest, any error leading to the assessment of an excessive "amount" of duties as well as an error in the "rate" (G. A. 3025).
The Board is the creature of statute and a definition of its powers is to be found in section 12 and 14 of this Act of June 10, 1890, which confer judicial power, and the phraseology implies a court. The return made by the Board to the circuit court for review is to be considered substantially in the same manner as the report of a master is considered in that court, or as the record including the opinion of the court in an equity or admiralty suit is considered in an appellate court. The findings of fact by the Board will not be disturbed, unless wholly unsupported by evidence or manifestly wrong (in re Kursheldt, Ç. C. A., 49 Fed. Rep., 633; in re Stermann, C. C. A., 56 Fed. Rep., 478; in re Van Blankensteyn, C. C. A., 56 Fed. Rep., 477; Marine vs. Lyon et al., C. C. A., 62 Fed. Rep., 153; T. D. 15641), and with respect to their method of procedure they are vested with a certain discretion, which will be respected by the courts except in cases of manifest abuse thereof (Earnshaw vs. l'nited States, 146 U. S., 60; G. A. 1035).
The Board of General Appraisers cannot reconsider their decisions. Importers are bound to take notice of the Board's decisions without any special notice (G. A. 307).
The decisions of the Board of General Appraisers will take effect at the expiration of thirty days from the date thereof, unless, in the meantime, appeal has been taken under the provisions of section 15, post, on behalf of the United States, in which case officers of the customs will be duly advised. Action under the decisions from which appeals have been so taken will be suspended until the questions involved therein shall have been judicially determined (T. D. 10369).
(b) Jurisdiction of the Circuit Court. “The appeal provided for brings up for review in court only the decision of the Board of General Appraisers as to the construction of the law and the facts respecting the classification of imported merchandise and the rate of duty imposed thereon under such classification. It does not bring up for review the question of whether an article is imported merchandise or not, nor under section 15 is the ascertainment of that fact such a decision as is provided for.
Nor can the court of review pass upon any question which the Collector had not original authority to determine." (In re Fassett, 142 U. S. 479; Passavant vs. U. S., 148 U. S. 214; T. D. 13941, G. A. 2622).
"This section in express terms provides that the Circuit Court shall have jurisdiction to review, not merely questions of law and fact respecting the classification of imported merchandise and the rate of duty imposed thereon under such classification, but such
right of review extends to the decision of the Board upon all ques. tions and matters in respect to which an appeal will lie thereto under the provisions of section 14. In other words, the right of review by the Circuit Court is coextensive with the right of appeal to the Board as to all matters except the dutiable value of the imported merchandise, as to which the decision of the Board of General Appraisers is by section iz made conclusive. Under a proper construction of sections 14 and 15 of the act, it cannot be held that the right of review by the Circuit Court is limited and contined to the two subjects of classification and the rate of duty. The subjects of review by the Circuit Court provided for by section 15, extend to all questions of law and fact in respect to which the Board of General Appraisers have appellate jurisdiction except the decision of that Board as to the dutiable value of merchandise, which is provided for by section 13 and is made conclusive against all parties interested.' (U. S. vs. Klingenberg, 153 V. S. 102, dis. tinguishing In re Fassett, and Passavant vs. L. S., supri, G. A. 3025).
The Circuit Court for the district where the port of entry is situated has appellate jurisdiction, and not the Circuit Court of the district where the Board of Appraisers meet (In re llyman, 45 Fed. Rep., 469).
The right of appeal inheres in every successive case. Failure on part of the Government to appeal from the Board of Appraisers does not bar the right to submit to the Court any future case involving the same question (T. D. 11736).
(c) Jurisdiction of the Circuit Court of Appeals. The Circuit Court of Appeals has jurisdiction of an appeal from a judgment rendered by the Circuit Court in reviewing a decision of the Board of General Appraisers (Louisville, &c., Co. vs. Collector C. C. A., 49 Fed. Rep., 561, affirmed in U. S. vs. Hopewell, 51 Fed. Rep., 798. See also Act March 3, 1891, and note, post). 2. LIMITATION FOR APPEALS.
The thirty days' limitation for appeals applies only to appeals from the Board of Appraisers to the Circuit Court Appeals from the Circuit Court to the Circuit Court of Appeals are governed by the general law of appeals (Marine r’s. Lyon, C. C. A., 62 Fed. Rep. 153). 3. PARTIES TO THE SUIT.
It is the owner, importer, consignee, or agent of the merchandise who must protest and appeal, and he may maintain action. Devisees, representatives of deceased persons, assignees in bankruptcy or by operation of law, are not excluded from bringing suit, for they take by devolution, and are regarded as succeeding in interest to the original party (Hager vs. Swayne, 149 V'. S. 246), and a party who obtains an interest in the merchandise itself, by purchase from the importer while in bond, and pending an appeal, and after the decision of the appeal pays the duty to get possession of the goods, may maintain the suit. This case is plainly distinguished from an assignment of a mere naked claim as exemplified in Hager vs. Swayne, post, (Seeberger vs. Castro, 153 U. S. 34 ; see also T. D. 9489; G. A. 1069, 1181).
But where the plaintiff is a mere stranger and becomes the owner of claims by way of purchase and assignment of the bare right of action, from those who do not see fit to prosecute them themselves, he cannot maintain the action (Hager vs. Swayne, 149 U. S. 246). 4. Costs OF SUIT.
The rule is that the United States is not liable for costs;
costs are not a matter of right, but depend on statutory provisions and the right does not exist where the act under which suit is brought does not show that the United States have consented to pay costs if defeated. (Marine vs. Lyon, C. C. A., 62 Fed. Rep. 153; T. D. 12171, 14100, 15050.)
In proceedings under this section costs are recoverable against the United States, and where the United States are appellants, and decision is against them, the costs should be paid out of the proper fund, according to Revised Statute 1001. (U. S. vs. Davis, C. C. A., 54 Fed. Rep. 147.) 5. INTEREST ON JUDGMENTS AGAINST THE UNITED STATES.
The United States is not liable to pay interest on judgments in the absence of express statutory provisions to that effect. (T. D. 11616, opinion Attorney-General citing Angarica vs. Bayard, 127
('. S. 251.)
Special Regulations under this section, T. D. 14098, 14184, 14890.
Appraisers may examine importers as to dutiable value
or classification. Sec. 16. That the general appraisers, or any of them, are hereby authorized to adminster oaths and said general appraisers, the boards of general appraisers, the local appraisers or the collectors, as the case may be, may cite to appear before them, and examine upon oath any owner, importer, agent, consignee, or other person touching any matter or thing which they, or either of them, may deem material respecting any imported merchandise, in ascertaining the dutiable value or classification thereof; and they, or either of them, may require the production of any letters, accounts, or invoices relating to said merchandise, and may require such testimony to be reduced to writing, and when so taken it shall be filed in the office of the collector, and preserved for use or reference until the final decision of the collector or said board of appraisers shall be made respecting the valuation or classification of said merchandise, as the case may be. (See $2925 R. S., supra, Act September 30, 1890, post.)
Penalty for violation of preceding section. Sec. 17. That if any person so cited to appear shall neglect or refuse to attend, or shall decline to answer, or shall refuse to answer in writing any interrogatories, and subscribe his name to his deposition, or to produce such papers, when so required by a general appraiser, or a board of general appraisers, or a local appraiser or a collector, he shall be liable to a penalty of one hundred dollars; and if such person be the owner, importer, or consignee, the appraisement which the general appraiser, or board of general appraisers, or local appraiser, or collector, where there is no appraiser, may make of the merchandise, shall be final and conclusive; and any person who shall
willfully and corruptly swear falsely on an examination before any general appraiser, or board of general appraisers, or local appraiser, or collector, shall be deemed guilty of perjury; and if he is the owner, importer, or consignee, the merchandise shall be forfeited. (85292 R. S., supra)
Decisions of General Appraisers to be published. .SEC. 18. That all decisions of the general appraisers and of the boards of general appraisers, respecting values and rates of duty, shall be preserved and filed, and shall be open to inspection under proper regulations to be prescribed by the Secretary of the Treasury. All decisions of the general appraisers shall be reported forth with to the Secretary of the Treasury and to the board of general appraisers on duty at the port of New York, and the report to the board shall be accompanied, whenever practicable, by samples of the merchandise in question, and it shall be the duty of the said board, under the direction of the Secretary of the Treasury, to cause an abstract to be made and published of such decisions of the appraisers as they may deem important, and of the decisions of each of the general appraisers and boards of general appraisers, which abstract shall contain a general description of the merchandise in question, and of the value and rate of duty fixed in each case, with reference, whenever practicable, by number or other designation, to samples deposited in the place of samples at New York, and such abstract shall be issued from time to time, at least once in each week, for the information of customs officers and the public.
See Regulations, T. D. 14098, 14184.
imported merchandise. SEC. 19. That whenever imported merchandise is subject to an ad valorem rate of duty, or to a duty based upon or regulated in any manner by the value thereof, the duty shall be assessed upon the actual market value or wholesale price of such merchandise as bought and sold in usual wholesale quantities, at the time of exportation to the United States, in the principal markets of the country from whence imported, and in the condition in which such merchandise is there bought and sold for exportation to the United States, or consigned to the United States for sale, including the value of all cartons, cases, crates, boxes, sacks, and coverings of any kind, and all other costs, charges, and expenses incident to placing the merchandise in condition, packed ready for shipment to the United States, and if there be used for covering or holding imported merchandise, whether dutiable or free, any unusual
article or form designed for use otherwise than in a bona fide transportation of such merchandise to the United States, additional duty shall be levied and collected upon such material or article at the rate to which the same would be subject if separately imported. That the words “value" or “actual market value" whenever used in this act or in any law relating to the appraisement of imported merchandise shall be construed to mean the actual market value or wholesale price as defined in this section.
NOTE 1. Market value.
(b) non-dutlable charges ex2. Coverings.
amples. (a) usual coverings.
(C) charges added under duress. (b) unusual coverings.
(d) inland transportation charges. 3. Costs, charges and expenses.
(b) prorating charges. (a) dutiable charges -examples.
4. Remedies. 1. MARKET VALUE.
The object of the law. The present law was framed to simplify the whole business of appraisements, and to this end its purpose is to reach the market value of the merchandise in the complete condition, packed ready for exportation as it is ordinarily sold in market, and subsequently on its arrival in this country, as it is presented to the eye of the appraising officer (T. D. 10366; G. A. 89, 930).
Means of ascertaining the market value.-See Sectious 10, II, 16 and notes, of this act.
In the principal markets of the country" defined.-See note 6 to Section 10 of this act.
(a) Usual coverings.-The Statute requires that the value of coverings shall be included in the market value of the merchandise. Unless such coverings are of an unusual kind, (see note "e") the duty herein provided is in lieu of any other duty (G. A. 2849) and the statute applies only to imported merchandise which is subject to an ad valorem duty (G. A. 2812, 2859). The usual and necessary coverings of goods, subject to specific duties, are not dutiable, unless such coverings are directly provided for (U. S. vs. Legget et al, C. C. A., 66 Fed. Rep. 300).
Glass Bottles holding more than one pint, being specifically enumerated in the dutiable list (paragraph 88, Tariff Act 1894) they are excluded from the provisions of this section (19) if found to be usual coverings, and the value of the bottles should not be added to the value of the contents in the ascertainment of the dutiable value of the contents (G. A. 2849, 2869, 2952), But where bottles are excepted from the provisions of paragraph 88, such as bottles holding one pint or less, and those in paragraph 248 of the same Act, under the phrase “but no separate or additional duty shall be assessed on bottles containing Ginger Ale, etc.—they become subject to the provisions of this section (19) as coverings. The phrase separate and additional duties” refers to the duty on bottles as separate and distinct articles of merchandise, and has no reference to the duty under the provision of this section (Debary vs. Arthur, 93 U. S., 420; Schmidt vs. Badger, 107 V. S., 85 cited in decisions G. A. 2877, 2869).
It is immaterial whether the coverings are or are not necessary for the transportation of the goods, or were put about the goods