Ensenada Estates, Inc. v. Hill

24 P.R. 462

• Court: Supreme Court of Puerto Rico
• Decided: July 28, 1916
• Docket: No. 1329
• Status: Published

Opinions

Mu. Justice HutchisON

delivered the opinion of the court.

Sections 1 to 5, inclusive, of an Act entitled “An Act providing for the payment of taxes under protest, establishing a procedure for the recovery thereof, and for other purposes,” approved March the 9th, 1911, read as follows:

“Section 1. — That in all cases in which an officer charged by law with the collection of revenue due the Government of Porto Rico, shall institute any proceeding or take any steps for the collection of the same, alleged or claimed by such officer to be due from any person. the party against whom the proceeding or step is taken shall, if he conceives the same to be unjust or illegal, or against any statute, pay the same under protest.

“Section 2. — Be it further enacted that, upon his making such payment, the officer or collector shall pay such revenue into the Treasury of Porto Rico, giving notice at the time of the payment to the Treasurer, that the same was paid under protest.

“'Section 3. — Be it further enacted that, the party paying said revenue under protest may, at any time within thirty days after making said payment, and not longer thereafter, sue the said Treasurer for said sum, for the recovery thereof in the court having competent jurisdiction thereto; and if it be determined that the same was wrongfully collected as not being due from said party to the Government, for any reason going to the merits of the same, tlie court trying the ease may certify of record that the same was wrongfully paid, and ought to be refunded, and thereupon the Treasurer shall repay the same, which payment shall be made in preference to other claims on the Treasury. Either party to said suit shall have the right of appeal to the Supreme Court.

“Section 4. — Be it further enacted that there shall be no other remedy in any case of the collection of revenue, or attempt to collect revenue illegally.

“Section 5. — Be it further enacted that no writ for the prevention of the collection of any revenue claimed, or to hinder and delay the collection of the same, shall in anywise issue, either supersedeas, prohibition, or any other writ or process whatever; but in all cases in which, for any reason, any person shall claim that the tax so collected was wrongfully or illegally collected, the remedy for said party shall be as above provided, and none other.”

Plaintiff, appellant, sues under this act and alleges, among other things:

“4. That the plaintiff is and has been for some time past the owner of, and seized and possessed of, certain lands, and is and has been the owner of certain machinery, buildings and other property in the Island of Porto Rico upon which the Government of Porto Rico has levied certain taxes. That said property is located in the ■municipal district of Guánica, Porto Rico.

“5. That heretofore and between the months of January and August, 1913, both inclusive, in attempted compliance with' the provisions of the statute in such case made and provided, the said defendant, as Treasurer of Porto Rico, assessed the property of the plaintiff for the fiscal year beginning the first day of July, 1913, and ending the thirtieth day of June, 1914. That for the purpose of such assesment said defendant, acting under the provisions of such statute, required and demanded that the plaintiff furnish him a verified statement covering all of the property owned by the plaintiff in the Island •of Porto Rico, together 'with its true and actual value. That the plaintiff, in compliance with such requirement and demand, furnished to the Treasurer of Porto Rico verified statements of its real and personal property together with the true and actual value thereof, which said statements were accepted and retained by the said defendant as Treasurer of Porto Rico.

“6. That a large part of the business of the plaintiff consists in grinding and extracting the juice from sugar cane grown in the Island of Porto Rico and converting the same into centrifugal or raw sugar. That for the said purposes it has erected upon its real property in the said municipal district of Guánica a sugar mill fully equipped for grinding and extracting the juice of sugar cane and converting the same into sugar.

“7. That a complete list of all of the machinery and other apparatus, parts and accessories used in said mill and the true and actual value thereof was given to the said defendant, as Treasurer of Porto Rico, on his request and demand in a printed paper furnished to the plaintiff by the defendant and known and designated as ‘Exhibit 5, Sugar Factory,’ to which reference is made for the contents thereof. That this said exhibit was a part of the verified statement heretofore referred to, and plaintiff alleges that it was and is a true, full, correct and complete inventory of the machinery, equipment, parts and accessories of said sugar mill and contains a true, correct and complete, actual and full valuation of each and every part of said mill; and plaintiff alleges that the value of said mill as so given at the time of furnishing such verified statement, and more particularly said paper marked ‘Exhibit 5, Sugar Factory’ was the true and actual present value at the time of the assessment of the property of the plaintiff hereinbefore and hereinafter more particularly mentioned.

‘ ‘ 8. That no other information was obtained, or other examination made, or other means of ascertaining the value of- said sugar mill of the plaintiff pursued by the defendant, as Treasurer of Porto Rico, or by the assessors or sub-assessors appointed for the purpose of aiding the said defendant in such assessment other than the examination of the said ‘Exhibit 5, Sugar Factory,’ and other than the table of valuations hereinafter more particularly referred to.

“9. That thereafter during the month of August, 1913, the said defendant, as Treasurer of Porto Rico, alleging that he was acting under and pursuant to the statute in such case made and provided, assessed the plaintiff on account of its said sugar mill upon a valuation of $1,800,000, and that thereafter on or about the 29th day of August, 1913, the plaintiff received a notice purporting to be a notice of such assessment together with others, to which notice reference is made for the contents thereof.

“10. That upon receipt of such notice and within the proper time thereafter the plaintiff duly caused to be served upon the Board of Equalization and Review, as required by law, its protest against such assessment, to which said protest reference is made for the contents thereof. That in said notice of assessment and in- said notice of protest the property of the plaintiff as mentioned therein included the said sugar mill.

‘ ‘ 11. That the valuation fixed by the plaintiff upon the items mentioned in said ‘Exhibit 5, Sugar Factory’ was $1,203,891, being approximately $600,000 less in amount than the valuation fixed by the said defendant, as Treasurer of Porto Rico, for purposes of assessment. That the plaintiff through its proper officer requested the said defendant to inform it what items had been increased in said ‘Exhibit 5, Sugar Factory,’ in order that it might ascertain the points of difference between said valuations and be prepared to take the matter up with the Board of Equalization and Review. That the said defendant, as Treasurer of Porto Rico, through the person then officiating as Acting Treasurer of Porto Rico in the absence of the defendant, refused to furnish said information, stating that the valuation of the mill was fixed as a whole.

“12. That the said Board of Equalization and Review heard the protest of the plaintiff, at which hearing the plaintiff was represented by its proper officer, and thereafter and on a date unknown to the plaintiff the said Board of Equalization and Review determined the protest of the plaintiff and continued the valuation and assessment of the plaintiff’s sugar mill at $1,800,000.

“13. That subsequently and on or about the 17th day of April, 1914, the plaintiff received a notice, to which reference is made for the contents thereof, which said notice, signed by the defendant as President of the Board of Equalization and Review, purported to give the true valuation of the plaintiff’s property as fixed by the said Board of Equalization .and Review, and upon which valuation plaintiff was subsequently compelled to pay taxes.

“14. That subsequently thereto and on or before the 27th day of April, 1914, the plaintiff received a notice from the said defendant, as Treasurer of Porto Rico, sent by one M. J. Harrison, Collector of Taxes, purporting to give the amount of the tax levied as a result of such assessment for the fiscal year 1913-14, and the sum mentioned therein Was $2.8,380.10, which said sum is the amount of said tax on plaintiff’s real and personal property in the Island of Porto Rico, which includes a tax at the rate of 1.2 per cent per annum on a valuation of the said sugar mill hereinbefore described of $1,800,000, to wit, the sum of $'21,600.

“15. That the said taxes were due and payable immediately and that as to all amounts not paid before June 1, 1914, a penalty of 1 per cent of the amount thereof would be levied for each and every month of non-payment, and that the said defendant, as Treasurer of Porto Rico, acting pursuant to the statute in such cases made and provided, and through his proper assistants and agents, threatened to embargo the property of the plaintiff, in case the taxes were not paid, whereupon the plaintiff on or about the 28th day of April, 1914, paid said taxes under protest, in accordance with the provisions of the Act' of March 9, 1911, by means of a check to the order of the Treasurer of Porto Rico, upon which cheek was endorsed ‘Paid under protest and in accordance with the Act of March 9, 1911,’ and which said check was accompanied by a letter dated April 24, 1914, setting out the grounds of said protest, to which letter reference is made for the terms thereof.

“16. That the said valuation and assessment upon the plaintiff’s sugar mill of $1,800,000 is grossly excessive and does not represent the true value of the said property; that the true and correct value of the said sugar mill is the sum of $1,203,891. That said true and correct valuation is the valuation given in said ‘Exhibit 5, Sugar Factory,’ and that said exhibit was the only legal source of information as to the actual value in Porto Rico of said sugar mill, machinery, equipment and accessories at the time of making such assessment by the defendant and at the time of the revision of such assessment by the Board of Equalization and Review.

“17. That the said defendant, as Treasurer of Porto Rico, and the said Board of Equalization and Review adopted a method, illegal, void, unjust and discriminatory in fixing the valuation of the plaintiff’s sugar mill and in assessing the tax upon the basis of such valuation. That the method of such assessment and valuation is as follows:

“The said defendant, as Treasurer of Porto Rico, caused to be made a certain schedule or table of values upon which he placed certain figures representing the alleged value of the sugar mills of certain corporations owning and operating sugar factories in the Island of Porto Rico. That these were approximately twenty-three in number; that he caused to be set down figures showing the previous assessed valuation and an estimated value of the cost of the various parts of the machinery, including boilers, centrifugals, clarifiers, vacuum pans and other equipment and accessories; that the .total of said figures representing the alleged cost of said machinery in each mill was divided by the number of tons of cane capable of being ground in each mill per day; that the'figures so obtained for each mill were added and the result- divided by the number of mills averaged, thus forming together with other elements of transportation, erecting and overhead expense an alleged average of the cost of sugar machinery per ton per day; that such so-called unit so found was approximately $500.

“18. That upon this alleged basic unit the said sugar mill of the plaintiff with a capacity of 3,700 tons per* day -would have a valúation of $1,850,000, but because of drought conditions and other elements, and to make a round figure the assessment of the plaintiff was fixed at $1,800,000.

“19. That this said alleged unit is by no means a true and correct criterion of the value of any of the sugar mills in Porto Rico and much less so in the ease of said-sugar mill of the plaintiff; that the capacity of the said sugar mill of the plaintiff is about double that of the next largest sugar mill on the island and is about five or six times as large as the average mill; that the cost of machinery for the mill owned by the plaintiff is very different from that of many other mills in the island; and that the taking of such a large unit valuation results in an entirely erroneous and incorrect valuation; and that such assessment is contrary to law and to the Constitution of the United States and the Fifth and Fourteenth Amendments thereto, and to the Act of Congress of the United States approved April 12, 1900, entitled ‘An Act temporarily to provide revenues and a civil government for Porto Rico, and for other purposes/ which provides that taxes and assessments shall be made and levied on property, and which said taxes and assessments must be based upon the valuation of said property.

“20. That the said valuation so made by the said defendant and by the Board of Equalization and Review is not only excessive as to plaintiff’s present mill but that it is possible to erect an entirely new mill, complete in every particular, similar in design but superior in operating efficiency to the sugar mill now in operation, including all costs of transportation, overhead and erection for an amount very much less than $1,800,000.

“21. That the difference between the value of the plaintiff’s mill as assessed, to wit, $1,800,000, and the true and actual value thereof, $1,203,891 is $596,109. That the tax on said sum at the rate of 1.2 per cent per annum amounts to $7,153.31, which said tax has been paid under protest and for the reason hereinbefore mentioned.”

The prajmr is for a certificate of record “that the said assessment was excessive and illegal beyond the sum of $1,203,891, and that the sum of $7,153.31 was wrongfully paid and ought to be refunded, aud for a judgment that the Treasurer of Porto Rico repay the same, said payment to be made in preference to other claims on the Treasury.”

•The trial court on demurrer held that the facts stated do not constitute a cause of action and dismissed the complaint.

No opinion was filed below but appellee seeks to sustain the judgment by an extended argument in support of the following propositions:

“I.A valuation fixed by the Board of Review cannot be judicially attacked on the ground that it is excessive.

“1. No action at law will lie to recover back the amount of taxes alleged not to have been due because of excessive valuation.

“2. In a suit by the Government to collect taxes the excessiveness of the assessment cannot be set up as a complete or partial defense.

“3. The fact that the Board of Review and Equalization fixed an excessive assessment is no ground for an injunction to restrain the collection of the tax.

“4. No writ of certiorari or other extraordinary remedy lies to attack the excessiveness of the valuation.

“5. The conclusiveness of the decision of the Board as to matters of valuation is based upon thoroughly established principles of legislative government.

“II. Even though the valuation has been reached by the adoption of economically erroneous principles it cannot be upset. A rule is not illegal because not economically perfect.

“III. The complaint does not establish that the criterion adopted by the Board is economically or legally erroneous, nor that it was erroneously applied to the complainant’s mill.

“IV. In a suit under the Act of March 9, 1911, the excessiveness of the valuation fixed by the Board cannot be relied on.

“Y. The complaint does not establish that the mill is assessed at less than its taxable value as property.”

We shall refer briefly to the authorities upon which most reliance is placed by appellee.

In the case of Supervisors v. Stanley, 105 U. S. 305, 15 Fed. 483, 121 U. S. 535—

“Stanley recovered a judgment against the Board of Supervisors of the County of Albany, for taxes exacted and paid under legal process on shares of the stock of the National Albany Exchange Bank. A large number of the shareholders of the bank, who had paid this tax made an assignment of their claims to him, and the judgment was for the sum of $61,991.20, with interest and costs.

“The ground of this recovery was that the statute of New York, under which the shares were assessed, was void, because it did not permit the shareholder to make deduction of the amount of his debts from the valuation of his shares of stock, in ascertaining the amount for which they should be taxed.”

On the second appeal the Supreme Court, speaking-through Mr. Justice Field, said:

“Intelligent men constantly differ in their estimate of'the value of such property, and the stock market shows almost daily changes. Presumptively, the nominal value is the true value, any increase from profits going, in the natural course of things, in dividends to the stockholders. This method, applied to all banks, national and state, comes as near as practicable, considering the nature of the property, to securing, as between them, uniformity andi equality of taxation; it cannot be considered as discriminating against either. Both are placed on the same footing. In Mercantile National Bank of New York v. The State of New York, 120 U. S. 138, 155, recently decided, this court said: ‘The main purpose, therefore, of Congress in fixing-limits to state taxation on investments in the shares of national banks was to render it impossible for the State, in levying such a tax, to create and foster an unequal and unfriendly competition, by favoring individuals or institutions carrying on a similar business and operations and investments of a like character. The language of the Act of Congress is to be read in the light of this policy. ’

“The method pursued could in no respect be considered as adopted in hostility to the national banks. It must sometimes place the estimated value of their shares below their real value; but such a result is not one of which the holders of national bank shares can complain. It must sometimes lead also to overvaluation of the shares; but, if so, no ground is thereby furnished for the recovery of the taxes collected thereon. It is only where the assessment is wholly void, or void with respect .to separable portions of the property, the amount collected on which is ascertainable, or where the assessment has been set aside as invalid, that an action at law will lie for the taxes paid, or for a portion thereof.

‘ ‘ Overvaluation of property is not a ground of action at law for the excess of taxes paid beyond what should have been levied upon a just valuation.. The courts cannot, in such cases, take upon themselves the functions of a revising or equalizing board. Newman v. Supervisors, 45 N. Y. 676, 687; National Bank of Chemung v. Elmira, 53 N. Y. ; Bruecher v. The Village of Portchester, 101 N. Y. 240, 244; Lincoln v. Worcester, 8 Cush. 55, 63; Hicks v. Westport, 130 Mass. 478; Balfour v. City of Portland, 28 Fed. Rep. 738.

“In nearly all the states, probably in all of them, provision is made by law for the correction of errors and irregularities of assessors in the assessment of property for the purposes of taxation. This is generally through boards of revision or equalization, ns they are often termed, with sometimes a right of appeal from their decision to the courts of law. They are established to carry into effect the general rule of equality and uniformity of taxation required by constitutional or statutory provisions. Absolute equality and uniformity are seldom, if ever, attainable. The diversity of human judgments, and the uncertainty attending all human evidence, preclude the possibility of this attainment. Intelligent men differ as to the value of even the most common objects before them — of animals, houses, and lands in constant use. The most that can be expected from wise legislation is an approximation to this desirable end; and the requirement of equality and uniformity found in the constitutions of some states is complied with, when designed and manifest departures from the rule are avoided.

‘ ‘ To these boards of revision, by whatever name they • may be called, the citizen must apply for relief against excessive and irregular taxation, where the assessing officers had jurisdiction to assess the property. Their action is judicial in its character. They pass judgment on the value of the property upon personal examination and evidence respecting it. Their action being judicial, their judgments in cases within their jurisdiction are not open to collateral attack. If not corrected by some of the modes pointed out by statute, they are conclusive, whatever errors may have been committed in the assessment. As said in one of the cases cited, the money collected on such assessment cannot be recovered back in an action at law, any more than money collected on an erroneous judgment of a court of competent jurisdiction before it is reversed.”

Maish v. Arizona, 164 U. S. 599, was a suit to recover delinquent taxes under an Arizona statute. The opinion by Mr. Justice Brewer opens and concludes as follows:

“The statute, as will be seen, authorizes any one interested in any of the property to defend against the taxes sought to be charged thereon, ‘specifying in writing the particular cause of objection,’ and requires the court, when such defense is made, to ‘hear and determine the matter in a summary manner, without pleadings,’ and to 'pronounce judgment, as the right of the case may be.’- The statute also provides that the delinquent tax list is prima facie evidence that the ‘taxes therein are due against the property.’

# * # ' * * # ■ «

“A final objection is that the assessment was grossly unfair, and that there was a fraudulent discrimination in favor of the Southern Pacific Railroad Company. It appears that the assessment of ordinary range cattle was fixed by the territorial board at $7.42, while one witness testified that their value was from $6 to $6.50 per head. It also appears that the territorial board valued the railroad property at $6,811.14 per mile, while there was testimony that to duplicate the roadbed and track alone would cost from $21,000 to $22,000 per mile; and appellants offered to prove that the railroad company stated to the board that if the valuation was fixed at about the rate which was fixed it would pay the taxes; if much higher, it would resist collection in the courts; and that the board concluded that it was better to get some taxes out of the railroad company than none, and therefore fixed the valuation at the sum named.

“There is nothing tending to show that the board, in fixing the value of cattle at $7.42, acted fraudulently or with any wrongful intent, or that that valuation was not the result of its deliberate judgment upon sufficient consideration and abundant evidence, and it would be strange, indeed, if an assessment could be set aside because a single witness is found whose testimony is that the valuation was excessive. No assessment could be sustained if it depended upon the fact that all parties thought the valuation placed by the assessing board was correct. Something more than an error of judgment must be shown, something indicating fraud or misconduct. Neither is the fact that an officer of the railroad company came before the board and declared its willingness to pay taxes on a certain valuation and its intention to resist the payment of taxes on any higher valuation sufficient to impute fraudulent conduct to the board, although it finally fixed the valuation at the sum named by the railroad company. It appears from the testimony of one of the members of the equalization board that it was guided largely by the valuation placed in other States and Territories upon railroad property, and that from such valuation, as well as from that given by the railroad company, it made the assessment at something like the average of the valuation of railroads in the various States and Territories named.. It is unnecessary to determine whether this board erred in its judgment as "to the value of this property, whether it would not have been better to have made further examination and taken testimony as to the cost of construction, present condition, etc. Matters of that kind are left largely to the discretion and judgment of the assessing and equalizing board, and if it has acted in good faith its judgment cannot be overthrown. Pittsburgh, Cincinnati, etc., Railway v. Backus, 154 U. S. 421-435. ’ ’

We quote from the opinion by Mr. Justice Holmes in -Chicago, B. & Q. Ry. Co. v. Babcock, 204 U. S. 585:

“These are bills to declare void assessments of taxes made by the State Board of Equalization and Assessment for the year 1904, and to enjoin the collection of the same beyond certain sums tendered. The bills allege that the board, coerced by political clamor and its fears, arbitrarily determined in advance to add about nineteen million dollars to the assessment of railroad property for the previous year, and then pretended to fix the values of the several roads by calculation. They allege that the assessments were fraudulent, and void for want of jurisdiction, and justify these general allegations by more specific statements. * *

. ‘‘ The dominant purport of the bills is to charge political duress, so to speak, and a consequent scheme of fraud, illustrated by the specific wrongs alleged, and in that way to make out that the taxes were void. As the cases come from the Circuit Court, other questions beside that under the Constitution are open, and, therefore, it is proper to state at the outset that the foundation for the bills has failed. The suggestion of political duress is adhered to in one of the printed briefs, but is disposed of by the finding of the trial judge, which there is no sufficient reason to disturb. The charge of fraud, •even if adequately alleged, Missouri v. Dockery, 191 U. S. 165, 170, was very slightly pressed at the argument, and totally fails on the facts. Such charges are easily made and, it is to be feared, often ■are made.without appreciation of the responsibility incurred in making them. # * *.

“When we turn to the evidence there is equal ground for criticism. The members of the board were called, including the Governor of the State, and submitted to an elaborate cross-examination with regard to the operation of their minds in valuing and taxing the roads. This was. wholly improper. In this respect the ease does not differ from that of a jury or an umpire, if we assume that the members of the board were not entitled to the possibly higher immunities of a judge. Duke of Buccleuch v. Metropolitan Board of Works, L. R. 5 H. L. 413, 433. Jurymen cannot be called, even on a motion for a new trial in the same case, to testify to the motives and influences that led to their' verdict. Mattox v. United States, 146 U. S. 140. So, as to arbitrators. Duke of Buccleuch v. Metropolitan Board of Works, L. R. 5 H. L. 418, 457, 462. Similar reasoning was applied to a judge in Fayerweather v. Ritch, 195 U. S. 276, 306, 307. A multitude of cases will be found collected in 4 Wigmore, Evidence, sections 2348, 2349. All the often repeated reasons for the rule as to jurymen apply with redoubled force to the attempt, by exhibiting on cross-examination1 the confusion of the members’ minds, to attack in another proceeding-the judgment of a lay tribunal, which is intended, so far as may be, to be final, notwithstanding mistakes of fact or law. See Coulter v. Louisville & Nashville R. R. Co., 196 U. S. 599, 610; Central Pacific R. R. Co. v. California, 162 U. S. 91, 107, 108, 117; S. C. 105 California, 576, 594; State Railroad Tax cases, 92 U. S. 575; Cleveland, Cincinnati, Chicago & St. Louis Ry. Co. v. Backus, 133 Indiana, 513, 542. In Fargo v. Hart, 193 U. S. 490, 496, 497, there was no serious' dispute as to what was the principle adopted.

“Again, this board necessarily kept and evidently was expected’ by the statutes to keep a record. That was the best evidence, at least, of its decisions and acts. If the roads had wished an express ruling' by the board upon the deductions which they demanded, they could have asked for it and could have asked to have the action of the board or its refusal to act noted in the record. It would be time enough to offer other evidence, when such a request had been made and refused. See Fargo v. Hart, 193 U. S. 490, 498; Cleveland, Cincinnati, Chicago & St. Louis Ry. Co. v. Backus, 133 Indiana, 513, 542; Havemeyer v. Board of Review, 202 Illinois, 446. * *

“The board expressed its result in another vote. ‘Having given full and due consideration to the returns furnished said board by the several railroad companies, and having taken into consideration the main track, side track, spur tracks, warehouse tracks, roadbed, right of way and depot grounds, and all water and fuel stations, buildings and superstructures thereon, and .all machinery, rolling stock, telegraph lines and instruments connected therewith, all material on-hand and supplies, moneys, credits, franchises and all other property of said railroad companies, and having taken into consideration the gross and net earnings of said roads, the total amount expended in operation and maintenance, the dividends paid, the capital stock of each system or road and the market value thereof and the total amount of secured and unsecured indebtedness (we) do hereby ascertain and fix for the purposes of taxation the full actual value, the average value per mile, and the assessable value per mile of the several roads as follows’: with a list. * * *

“Evidently the board believed that the figures furnished by the roads were too favorable and were intended to keep the taxes as low as they could be kept. Evidently also the members or some of them used their own judgment and their own knowledge, of which they could give no very good account on cross-examination, but which they had a right to use, if honest, however inarticulate the premises. It would seem from the testimony, as might have been expected, that -the valuations fixed were a compromise and were believed by some members to be too low, as they seemed to one too high. It is argued to us, on expert testimony, that they are too low. The result of the evidence manifests the fruitlessness of inquiries, which, as we have said, should not have been gone into at all. We have adverted more particularly to the case of the Union Pacific, but that of the Chicago, Burlington and Quincy Bailroad stands on similar and no stronger ground, and what we have said disposes of the main 'contention of both. If the court below had found the other way it would have been difficult to say that the finding was sustained by competent evidence. There certainly is no sufficient reason for disturbing the finding as it stands. * *

“Various arguments were addressed to us upon matters of detaib which would afford no ground for interference by the court, and which we do not think it necessary to state at length. Among them is the suggestion of arbitrariness at different points, such as the distribution of the total value set upon the Chicago, Burlington and Quincy system, among the different roads making it up. But the action does not appear to have been arbitrary except in the sense in which many honest and sensible judgments are so. They express an intuition of experience which outruns analysis and sums up many unnamed and tangled impressions; impressions which may lie beneath consciousness without losing their worth. The board was created for the purpose of using its judgment and its knowledge. State Railroad Tax cases, 92 U. S. 575; State v. Savage, 65 Nebraska, 714, 768, 769; In re Cruger, 84 N. Y. 619, 621; San José Gas Co. v. January, 57 California, 614, 616. Within its jurisdiction, except, as we have said, in the case of fraud or a clearly shown adoption of wrong principles, it is the ultimate guardian of certain rights. The State has confided those rights to its protection and has trusted to its honor and capacity as it conñdes the protection of other social relations to the courts of law. Somewhere there must be an end. We are of opinion that whatever grounds for uneasiness may be perceived nothing has been proved so clearly and palpably as it should be proved, on the principle laid down in San Diego Land and Town Co. v. National City, 174 U. S. 739, 754, in order to warrant these appeals to the extraordinary jurisdiction of the Circuit Court.”

In Hilton v. Merrit, 110 U. S. 97, referred to by appellee as “an illuminating ease based upon a situation entirely analogous” and as “practically conclusive” of the question at issue herein, the Supreme Court, after setting forth the Federal Statutes involved, says:

“The provisions of the statute law show with what care Congress has provided for the fair appraisal of imported merchandise subject to duty, and they show also the intention of Congress to make the appraisal final and conclusive. When the value of the merchandise is ascertained by the officers appointed by law, and the statutory provisions for appeal have been exhausted, the statute declares that the 'appraisement thus determined shall be final and deemed to be the true value, and the duties shall be levied thereon accordingly.’ This language would seem to leave no room for doubt or construction.

' “The contention of the appellants is, that after the appraisal of merchandise has been made by the assistant appraiser, and has been reviewed by the general appraiser, and a protest has been entered against his action by the importer, and the collector has appointed a special tribunal, consisting of a general and merchant appraiser, to fix the valúe, and they have reported each a different valuation to the collector, who has decided between them and fixed the valuation upon which the duties were to be laid, that in every such ease the importer is entitled to contest still further the appraisment and have it reviewed by a jury in an action at law to recover back the duties paid. After Congress has declared that the appraisement of the customs officers should be final for the purpose of levying duties, the right of the importer to take the verdict of a jury upon the correctness of the appraisement should be declared in clear and explicit terms. So far from this being the ease, we do not find that Congress has given the right at all. If, in every suit brought to recover duties paid under protest, the jury were allowed to review the appraisement made by the customs officers, the result would be great uncertainty and inequality in the collection of duties on imports. It is quite possible that no two juries would agree upon the value of different invoices of the same goods. The legislation of Congress, to which we have referred, was designed, as it appears to us, to exclude any such method of ascertaining the dutiable value of goods. This court, in referring to the general policy of the laws for the collection of duties, said in Bartlett v. Kane, 16 How. 263, ‘The interposition of the courts in the appraisement of importations would involve the collection of the revenue in inextricable confusion.’ And, referring to section 3 of the Act of March 3d, 1851, which is reproduced in section 2930, Revised Statutes, this court declared in Belcher v. Linn, 24 How. 508, that, in the absence of fraud, the decision of the customs officers ‘is final and conclusive, and their appraisement,' in contemplation of law, becomes, for the purpose of calculating and assessing the duties due to the United States, the true dutiable value of the importation.’ To the same effect see Tappan v. United States, 2 Mason, 393, and Bailey v. Goodrich, 2 Cliff. 597.

“The appellants contend, however, that the right to review the appraisement of the customs officers by a jury trial is given to the importer by sections 2931 and 3011 of the Revised Statutes. The first of these sections provides that on the entry of any merchandise the decision of the collector as to the rate and amount of duties shall be final and conclusive unless the importer shall, within two days after the ascertainment and liquidation of the proper officers of the customs, give notice in writing to the collector on each entry, if dissatisfied with his decision, setting forth distinctly and specifically the grounds of his objection thereto, and shall within thirty days after such ascertainment and liquidation appeal therefrom to the Secretary of the Treasury, and the decision of the Secretary in such appeal shall be final and conclusive, and such merchandise shall be liable to duty accordingly, unless suit shall be brought within ninety days after such decision of the Secretary of the Treasury. Section 3011 provides that any person who shall have made payment under protest of any money as duties, when such amount of duties was not, or was not wholly, authorized by law, may maintain an action, which shall be triable by jury, to ascertain the validity of such demand and payment of duties, and to recover back any excess so paid; but no recovery shall be allowed in such action unless a protest and appeal shall have been taken as prescribed in section 2931.

‘ ‘ The argument is that, by these sections the appraisement which had been declared final by section 2930 is opened for review by a jury trial. Such is not, in our opinion, a fair construction of this legislation. Considering the acts of Congress as establishing a system, and giving force to all the sections, its plain and obvious meaning is that the appraisement of the customs officers shall be final, but all other questions relating to the rate and amount of duties may, after the importer has taken the prescribed steps, be reviewed in an action at law to recover duties unlawfully exacted. The rate and amount of duties depends on the classification of the imported merchandise, that is to say, on what schedule it belongs to. Questions frequently arise whether an enumerated article belongs to one section or another, and section 2499 of the Revised Statute provides that there shall be levied on every non-enumerated article which bears a similitude either in material, quality, texture, or the use to which it may be applied to any enumerated article chargeable with duty, the same rat'' of duty which is levied and charged on the enumerated .article which it most resembles in any of the particulars before mentioned. In determining the rate and amount of duties, the value of the merchandise is one factor, the question what schedule it properly falls under is another.

‘1 Congress has said that the valuation of the customs officers shall be final, but there is still a field left for the operation of the sections on which the plaintiffs in error rely. Questions relating to the classification of imports, and consequently to the rate and amount of duty, are open to review in an action at law. This construction gives effect to both provisions of the law. If we yield to the contention and construction of plaintiffs in error, we must strike from the statute the clause which renders the valuation of dutiable merchandise final.

“We are of opinion, therefore, that the valuation made by the customs officers was not open to question in an action at law as long as the officers acted without fraud and within the power conferred on them by the statute. * * •*.”

In the matter of Baumgarten (N. Y. 1899), 39 App. Div. 174, the court had under consideration section 16 of Chapter 686 of the laws of 1892, set forth in full in Ríos v. Richardson, just decided. The court held that “the taxes paid by the petitioner were not illegally or improperly assessed,” within the meaning of that section, and, among other things, said:

“Section 16 of the statute above quoted relates to the ‘correction of assessments and returning and refunding of illegal taxes,’.and it authorizes ‘to be refunded to any person the amount collected from him of any tax illegally or improperly assessed or levied’; and it seems to me to follow conclusively that a tax legally assessed cannot be ordered by the county court to be refunded. A tax which is legally assessed by officers having jurisdiction is not improperly assessed. In case the property of A. is unequally assessed and at a higher proportionate rate than other property in the tax district, there is no jurisdiction in the county court to correct such unequal assessment. Relief for such an assessment must be sought under section 250, chapter 908, Laws of 1896. (5 R. S. [Banks’ 9th ed.] 3309). But in such a case relief must be first sought on grievance day. It is not asserted that the petitioner ever appeared before the assessors of her tax district on grievance day and asserted that the whole or part of her realty was exempt from taxation by reason of having been paid for, in whole or in part, with pension money.”

After reviewing a number of cases the opinion proceeds:

“It is said to be a good rule of construction that ‘when ,an act of parliament begins with words which describe things or persons of an inferior degree, and concludes with general words, the general words shall not be extended to any thing or person of a higher degree’; that is, ‘when a particular class is spoken of, and general woi'ds follow, the class first mentioned is to be taken as the most comprehensive, and the general words treated as referring to matters ejusdem generis with such class.’ ” (Matters of Hermance, 71 N. Y. 487.) (For other cases illustrating this rule, see Endlich Interp. Stat. §§ 186, 4.05, 411, and cases there cited.)

“Section 16 relates to the correction of manifest clerical or other error in the assessment. The same language was used in the act of 1871, and it was held in Matter of Hermance (supra) that this language did not include the errors of assessors in making the assessment, they having jurisdiction, but was confined to the assessment or return made to the board of supervisors. The application in the case at bar was not to correct assessments, but to compel a return of taxes illegally or improperly assessed. The head line of the section limits its scope to the refunding of ‘ illegal taxes, ’ and the word ‘ improperly, ’ used in the body of the section, does not, as before shown, extend the effect of the particular word ‘illegally.’ The word ‘improperly’ in this statute cannot be given its broad and general meaning — inap-pro'priately, unseemly, unbecomingly — but must be restricted in its, meaning by the preceding particular word ‘illegally.’ ”