United States v. Loeb

99 F. 723, 1900 U.S. App. LEXIS 4186

Opinion

TOWNSEND, District Judge.

In 1898, Messrs. Loeb & Schoenfeld imported certain embroideries, which were appraised by the local appraiser at a valuation considerably in advance of their invoice value. Under the provisions of section 18 of the customs administrative act of June 10, 1890, they applied for a reappraisement, and the general appraiser reduced the valuation. Thereafter, on August 20th, the collector transmitted the invoice and papers appertaining thereto to the board of three general appraisers, with an indorsement as follows:

“in view of the department’s order of August 17, 1898, I hereby order a reappraisement by the board of three general appraisers of the merchandise covered by this reappraisement.”

On October 7th he made a new indorsement as follows:

“I hereby appeal from the decision of the general appraiser in this ease, and, under the provisions of and in accordance with section 13 of the act of June 10, 1890, transmit the invoices to the board of general appraisers for a reappraisement of the merchandise covered thereby.”

This indorsement was pasted above the original one. To this reappraisal the importers objected, claiming that said board had no jurisdiction of the proceedings, because the collector did not deem the- appraisement too low. Said board entertained jurisdiction, and examined and decided the cases, and the collector liquidated the entries in accordance with the valuation found by said board. The importers thereupon protested under section 14 of said act, and the papers were duly transmitted to the board of three general appraisers acting as a board of classification. The question presented is whether said board of classification and this court have jurisdiction to review the action of the board of three general appraisers in reviewing the appraisement of the single general appraiser. The chief contention of the importers is based upon the following provision of section 13 of said customs administrative act:

“The decision of the appraiser * * * shall be final and conclusive as to 1lie dutiable value of-such merchandise, * « * unless the collector shall deem the appraisement of the merchandise too low,” etc.

Counsel for the importers duly appeared before said reviewing board of three general appraisers, and asked that the testimony of the collector might be taken as to the question whether he in fact deemed said appraisal too low. The board replied that it was cofnpetent for the collector to change his opinion within a reasonable time, and declined to hear such testimony, slating that the record showed that the collector did deem said appraisement loo low. At the hearing before the board of classification, however, said evidence and other evidence bearing upon the same question was received, from which it appeared that in the official correspondence between the collector of customs and the secretary of the treasury the collector wrote to the secretary of the treasury on August 16, 1898, as follows:

“1 am satisfied that the appraisements made by the general appraiser are not too low, although considerably loss than those of the local appraiser; and I have no good reason that would justify the opinion on my part that the reappraisements as made are too low. Hence I am constrained to deny the request of the appraiser that I order a reappraisement on the 120-odd invoices by the board of three Tnited States general appraisers, unless otherwise instructed by the department.”

The deportment replied as follows:

“The department has given due consideration to your letter of the 16th inst, in which you set forth the conclusions which you have reached in regard to the reappraisement cases covering Swiss embroideries. While due weight is given to the arguments you present against the expediency of an appeal from the decision of the general appraiser, the department believes that a proper adjudication of the questions involved requires the final verdict of the board of general appraisers. Much evidence has recently been obtained through the reports of Special Agent Whitehead, which has been transmitted to the board, and it is in a position to settle this vexatious matter equitably and finally. The department has, therefore, to request you that you make due application for reappraisement by the hoard.”

The collector further testified before the hoard that the statement in said official letter that lie did not consider the appraisement too low was true when he made it, and that he had not since changed his opinion.

The contention of the counsel for the government,* inter alia, is that the secretary of the treasury has the authority to direct or request the collector to take an appeal from the appraisement of a general appraiser irrespective of the opinion of the collector; that the evidence that the collector did not deem the appraisement too low is incompetent and immaterial; that the hoard of general ap-

praisers - on classification passed upon no question except that of jurisdiction; that the orily question here is whether the board had or had not jurisdiction, .there being no claim that the board of general appraisers on valuation did any illegal act, or made any error in their decision; and, further, that the action of the collector from which this appeal is taken is not a decision as to the rate and amount of duties under section 14 of said act, but is a mere computation, based upon the valuation made by the board of general appraisers. Counsel for the importers claim that it is a condition precedent to the right to review the appraisal of the single general appraiser that the collector shall deem the appraisement too low, that the secretary of the treasury has no power to direct the collector in regard to such appeals, and that said appeal was taken by the collector under the coercion of the secretary of the treasury. It is unnecessary to discuss all the contentions presented in the ingenious, forcible, and exhaustive argument of counsel for the government. If the evidence that the collector did not deem the appraisement too low is admissible, the decisive question is whether the secretary of the treasury had authority to direct the collector to take said appeal irrespective of his (the collector’s) opinion. Counsel for the government, in support of his claim that said evidence was inadmissible, cited the following/cases: Cornett v. Williams, 20 Wall. 226-249, 22 L. Ed. 254; McNitt v. Turner, 16 Wall. 366, 21 L. Ed. 341; Bank v. Dandridge, 12 Wheat. 70, 6 L. Ed. 552; Ward’s Lessee v. Barrows, 2 Ohio St. 247. These cases only apply the settled maxim, “Omnia prtesumuntur rite et solemniter esse acta donee probetur in contrarium.” When it is essential to the right of a public officer tp act that a certain state of facts should exist, there is a presumption of the existence of such facts. But it is well settled that such presumptions may be rebutted by proof of lack of jurisdiction. Especially is this so in cases where the question arises as to the legal rights of importers. Greely v. Thompson, 10 How. 225, 13 L. Ed. 397; U. S. v. Passavant, 169 U. S. 16, 18 Sup. Ct. 219, 42 L. Ed. 644. The question here is not like that in Muser v. Magone, 155 U. S. 240, 15 Sup. Ct. 77, 39 L. Ed. 135, where the court stated that appraisers or other officers could not be interrogated as to their mental processes in making a decision on questions of value, provided they acted within their statutory powers, and without fraud. Nor is this a question between a superior and an inferior officer, in which the orders and regulations of the superior officer are binding upon his subordinate. In Oelbermann v. Merritt, 128 U. S. 356, 8 Sup. Ct. 157, 31 L. Ed. 164, the question arose whether a certain merchant appraiser was “familiar with the character and value of the goods” appraised, as provided by section 2930 of the Bevised Statutes, and whether his incapacity could be proved by his own evidence. The Court says:

“In regara to the question whether Mr. Bates was a competent witness to prove that he was not familiar with the character and value of silk velvets, we are of opinion that his evidence on that subject was admissible. As the question of his familiarity with the article and with its value necessarily depended upon the nature, and, to some degree, at least, upon the extent, of his experience in connection with the article, no one could know wliat that expe rience was so well as himself. If he is to be excluded as a witness on the subject, when offered by either side, the court and the jury and the parties would be deprived of the best testimony within reach. There is no ground of public policy which forbids that the merchant appraiser should be a witness to the extent above indicated. The brief of the solicitor general does not urge that the witness was not a competent witness to that extent.”

The question, therefore, is whether the secretary of the treasury had the right to order the reappraisement. The word “deem,” used in this connection, necessarily involves the exercise of discretion on the part of the collector. His calling and the nature of Ms business place him in a position where he is necessarily familiar with the value of imported merchandise, and wiih the facts hearing upon questions of appraisal. In sncli a determination he exercises his discretion judicially. “It is not consistent with the idea of judicial action that it should he subject to the direction of a superior in the sense in which that authority is conferred upon the head of an executive department in reference to his subordinates.” Butterworth v. Hoe, 112 U. S. 50, 5 Sup. Ct. 25, 28 L. Ed. 656. The law as to ministerial functions, where nothing is left to the discretion of a person, and where he may he forced to perform a certain act, does not apply to the exercise of such judicial functions. Association v. Zumstein, 15 C. C. A. 153, 67 Fed. 1000. It may he true, as urged by counsel for the government, that there is a defect in the tariff laws, in that the secretary of the treasury has not been specifically empowered to order a reappraisement in such cases, as he is alternatively empowered to do under section 15, where he is dissatisfied with the decision of the board of general appraisers on classification; but this is not a matter to be remedied by judicial legislation. The decision of the board of classification sustaining the protests is affirmed.