When the government takes no appeal from the action of the board
of
appraisers upon an importer's protest, made under the Act of
June 10, 1890, c. 407, it is bound by that action, and in case the
importer appeals from that action and subsequently abandons his
appeal, the government cannot claim to be heard, but it is the duty
of the court to affirm the decision of the appraisers.
This case comes here by virtue of a writ of certiorari, issued
to the Circuit Court of Appeals for the Second Circuit. It arose
out of a conflict of views between the collector and the importers
as to the manner of classification and the rate of duty to be
imposed upon an importation of tobacco.
The importers had imported through the port of New York a
certain amount of leaf tobacco, which was classified for duty by
the collector of that port, a portion at 75 cents and another
portion at 35 cents per pound, under paragraphs 246 and 247 of
Schedule F of the Tariff Act of March 3, 1883, 22 Stat. 488, 503,
c. 121. As the decision herein does not turn upon those provisions,
they are not set forth.
The importers were dissatisfied with the matter of
classification, and with the duties imposed, and therefore,
pursuant to section 14 of "An act to simplify the laws in relation
to the collection of revenues," approved June 10, 1890, c. 407, 26
Stat. 131, 137, gave notice in writing to the collector,
setting
Page 170 U. S. 629
forth therein, by way of protest, distinctly and specifically
the reasons for their objections. Section 15 of the same act
provides for a further review.
The sections of the act, so far as material, are set forth in
the margin.
*
Page 170 U. S. 630
The protest made by the importers was a detailed and
comprehensive statement, and it was evidently intended to cover all
possible objections and claims upon the subject of the proper
duties to be collected from and the classification of the
tobacco.
The board of appraisers, on the 18th July, 1893, decided the
various questions raised by the protest of the importers, and held,
among other things, that the bales of tobacco had been properly
opened and examined by the appraiser, although only one bale in ten
had been examined; that a fair average had been made under section
2901 of the Revised Statutes, and, while the examination might not
have furnished a precise description of the goods, the board held
there was no reason to suppose that it was not as favorable to the
importer as to the government. All the questions were decided
against the importer, with the exception that the decision of the
board closed as follows:
"In the absence of the merchandise and of any evidence to impugn
the returns of the appraiser or to show the character of the
tobacco, we find that the returns were correct, and, in accordance
therewith, we hold that, in the reliquidation, the lots must be
prorated according to such returns -- that is to say, that the
proportion of the aggregate weight of the total number of bales
examined in a lot, to be dutiable at 75 cents or 35 cents a pound,
shall be estimated according to the proportion of the number of
bales examined and returned by the appraiser as containing upward
of 85 percent
Page 170 U. S. 631
or less of wrapper tobacco. To this extent, the protests are
sustained; otherwise, the decisions of the collector are
affirmed."
It is now claimed by the government that the direction in regard
to the reliquidation, as above quoted, and which was favorable to
the importer, was erroneous, and that the result of prorating, as
directed in the decision, will be to reduce the amount of the
duties to be collected on account of the tobacco.
The importers were dissatisfied with the decision of the board
in overruling their protest as to the rate and amount of duty
chargeable on the tobacco, and therefore, on August 15, 1893, they
applied to the circuit court of the United States, sitting in the
City of New York, for a review of the questions of law and fact
involved in such decision. The government made no application of
any kind, although the order of the board showed upon its face that
in respect to prorating it altered the decision of the collector,
and to the extent of the alteration, it was favorable to the
importers. The circuit court, upon reading and filing the
application of the importers, made an order that the board of
appraisers should return to that court the record, together with a
certified statement of facts in the case and their decision
thereon, and, in pursuance of that order, the board made return of
the record, etc., and, after such return had been made, the
importers filed a petition stating their desire to present further
evidence in the matter, and an order was entered that it be
referred to General Appraiser Sharpe to take and return to the
court such further evidence as might be offered.
The only evidence taken before the general appraiser was
"the entry in this case by the Rotterdam, June 30, 1890, entry
number 104,642, and the invoice and other papers accompanying the
same or thereto attached, with the exception of the protest."
No further proceedings were taken in the circuit court until the
19th of December, 1895. At that time, the importers had become
convinced that they could not succeed upon their appeal, and, as
appears from the order of the court when the case came on for
hearing and determination before it, they
Page 170 U. S. 632
"conceded in open court that there was no error in said decision
of the Board of General Appraisers, and it having been contended on
behalf of the collector and Secretary of the Treasury that the said
decision of the Board of General Appraisers should be reversed for
manifest error therein, and the court having ruled that the
collector and Secretary of the Treasury, or either of them, could
not be allowed to impeach or in any way object to the said decision
of the Board of General Appraisers, because they had not proceeded
under the statute to seek a review of such decision of the said
Board of General Appraisers; . . . it is ordered, adjudged, and
decreed that the decision of the Board of General Appraisers be,
and the same is hereby, in all things affirmed."
It appeared in the record that no application, pursuant to
section 15 of the act above mentioned, for a review of the decision
of the Board of General Appraisers, had been made by the collector
or the Secretary of the Treasury.
An appeal having been taken by the government to the United
States Circuit Court of Appeals for the Second Circuit from the
judgment of the circuit court, the judgment appealed from was in
all things affirmed. 74 F. 546. Upon the application of the
government, a writ of certiorari from this Court was issued, and
the case brought here for review.
MR. JUSTICE PECKHAM, after stating the facts in the foregoing
language, delivered the opinion of the Court.
The circuit court of appeals held that the circuit court was
right in refusing the request of the government to reverse the
order of the Board of General Appraisers. The ground of the refusal
of the circuit court was that the United
Page 170 U. S. 633
States had not proceeded in accordance with the provisions of
section 15 of the act above quoted in order to have the right to
ask for such reversal, and that, when the importers, who had sought
the review pursuant to the statute, conceded the correctness of the
decision of the Board of General Appraisers and withdrew further
opposition, it was the duty of the court to affirm the decision of
the board, and the government could not be heard to ask for a
reversal of the order in the absence of an appeal by it.
The act of 1890 (above cited), under which reviews in relation
to revenue decisions are to be taken, was passed "to simplify the
laws in relation to the collection of the revenues." It provides a
particular system of procedure for obtaining a review of the
decisions of the collector and of the Board of General Appraisers
in revenue matters. Compliance with the provisions of the act is
necessary in order that a review may be had on the part and for the
benefit of the government, as well as on that of the importers.
Under section 14, the decision of the collector is final and
conclusive unless the owner, if dissatisfied with the decision,
give notice in writing to the collector setting forth therein
distinctly and specifically his objections. If such notice be
given, the collector transmits the invoice and all the papers and
exhibits connected therewith to the Board of General Appraisers,
which then examines and decides the case thus submitted, and the
decision of the board, or that of a majority, is final and
conclusive upon all persons interested therein except in cases
where an application is filed in the circuit court within the time
and in the manner provided for in the following (fifteenth)
section.
In that section, provision is made not only for a review by the
importer, but it expressly includes the case where the collector or
the Secretary of the Treasury shall be dissatisfied with the
decision of the board, and it provides that the importer or the
collector, or the Secretary of the Treasury, may, within in 30 days
after the decision, and not afterwards, apply to the Circuit Court
of the United States for a review of the questions of law and fact
involved in such decision.
Page 170 U. S. 634
The section provides further that the application shall be made
by filing in the office of the clerk of the circuit court a concise
statement of the errors of law and fact complained of, and by
serving a copy of such statement on the collector in the case of a
review on the part of the importer, and, in case of a review on the
part of the collector, this copy is to be served on the importer,
consignee, or agent, as the case may be.
If, therefore, the government, through the collector or the
Secretary of the Treasury, seeks to review a decision made by the
Board of General Appraisers because either of such officers may
think such decision is in any or all of its provisions too
favorable to the importer, the section (15) provides the way, and
the only way, in which that review is to be obtained. If neither
officer should take the proceedings so provided for by applying for
a review and filing with the clerk the statement of the errors of
law and fact of which he complains and by serving a copy upon the
importer, then the officer could not ask for a reversal of the
decision, for it is clear that the appeal on the part of the
importer would not give the government that right. What would be
the purpose of the provision for filing and serving this paper
defining the errors of law and fact complained of if, without it,
the decision or any part of it made by the board could be reversed
upon the application of the government made on the appeal of the
importer? The plan of the statute evidently contemplates action by
both parties if both are dissatisfied.
We do not think the act can be fairly construed as meaning that
where one party takes an appeal and files his statement of the
errors of law and fact complained of by him and serves the same
upon the opposite party, the latter can, without himself making any
application for a review and without filing or serving any
statement of errors complained of, seek a reversal of the decision
of the board upon any ground whatever. The fact that one party
appeals furnishes no reason for holding that the other can obtain
all the benefits of an appeal himself without complying in any
particular with the statute giving an appeal. There would be no
reason
Page 170 U. S. 635
or fairness in so providing, and we are of opinion the statute,
properly construed, does not so provide.
When, therefore, the case is before the circuit court upon the
sole application of the importer, and he then admits that his
appeal cannot be supported in law, and concedes that the decision
of the Board of General Appraisers should be affirmed, the court
ought to affirm that decision, and the government cannot be heard
to claim that the decision of the board or any part thereof should
be reversed.
It is said that the circuit court, when the case was called and
the importer conceded that the decision of the Board of General
Appraisers was right, should have dismissed the case and that it
ought not to have affirmed the judgment of the board. The
proceedings up to the time when the case was called in the circuit
court had been regular, and the case was properly pending in that
court for the purpose of a review upon the appeal of the importer.
It lost no jurisdiction to proceed because of the confession of the
importer that his appeal was without merit, but, on the contrary,
when the confession was made, it amounted to the same thing as if
after opposition the court had so decided, and in that case, of
course, the judgment would be affirmed.
When section fifteen provides that the circuit court shall
"proceed to hear and determine the questions of law and fact
involved in such decision," it means the decision of the Board of
General Appraisers, which was properly brought before the court by
virtue of an application regularly filed to obtain such review by
the party against whom the decision was made, and we do not think
it was ever intended to permit the court to reverse the decision at
the instance of a party who had asked for no review and taken no
proceedings to obtain it. This would be neither just nor fair, and
it would result in erasing from the statute the provision for
filing and serving the statement of the questions of law and fact
complained of, and a review of which was the object of the
application. The statute ought not to be so construed as to permit
such a review unless its language plainly demands it, which is not
the case in this instance.
Page 170 U. S. 636
In the case of
In re Crowley, 50 F. 165, the circuit
court for the Southern District of New York decided this principle,
only in that case it was against the importer. The collector sought
a review of the decision of the Board of General Appraisers, and
the court affirmed the decision as made, but declined the
importer's request to examine the question whether the board had
correctly determined certain other matters for the reason that the
importer had made no statement of any error of law or fact
complained of touching that decision, and had made no application
for a review of the decision in that particular. We think the same
rule applies here.
Whether the collector has any right to reliquidate for the
purpose of assessing higher duties under some sections of the
Revised Statutes, where an error is alleged to have been discovered
in the original liquidation, it is not necessary to here determine.
He has no right under this statute to a reversal of the decision of
the Board of General Appraisers.
The cases cited by the learned counsel for the government in
relation to the California land titles,
United
States v. Ritchie, 17 How. 525, and
Grisar v.
McDowell, 6 Wall. 363, we think, have no
application, and do not aid in the proper construction of the act
before us.
Although the circuit court has, upon the application of the
parties, power to take further testimony after the case is brought
before it, and to that extent it may be regarded as something in
the nature of a new proceeding, yet the proper procedure in
deciding the appeal is in no wise altered thereby, and unless a
party has appealed, and filed and served his statement as above
mentioned, the court ought not to reverse on his motion.
It is immaterial that the application is not named an appeal. It
is such in substance, and the grounds and reasons for the appeal
are to be stated. Although the Board of General Appraisers may not
be a court, yet the proceedings to review its determination are
pointed out by the statute, and they must be substantially followed
and obeyed.
If the government desire to review any decision of the
Page 170 U. S. 637
board, it can do so by complying with the statute and stating
wherein it complains of such decision. If it make no complaint, it
may be regarded as satisfied with the decision as made.
As the government in this case took no proceedings to review the
decision of the Board of General Appraisers, it cannot be heard to
object to an affirmance of such decision.
The judgment of the circuit court of appeals must be
Affirmed.
*
"SEC. 14. That the decision of the collector as to the rate and
amount of duties chargeable upon imported merchandise, including
all dutiable costs and charges, and as to all fees and exactions of
whatever character (except duties on tonnage), shall be final and
conclusive against all persons interested therein, unless the owner
. . . give notice in writing to the collector, setting forth
therein distinctly and specifically, and in respect to each entry
or payment, the reasons for his objections thereto, and if the
merchandise is entered for consumption shall pay the full amount of
the duties and charges ascertained to be due thereon. Upon such
notice and payment, the collector shall transmit the invoice and
all the papers and exhibits connected therewith to the board of
three general appraisers, . . . which board shall examine and
decide the case thus submitted, and their decision or that of a
majority of them shall be final and conclusive upon all persons
interested therein, and the record shall be transmitted to the
proper collector or person acting as such, who shall liquidate the
entry accordingly, except in cases where an application shall be
filed in the circuit court within the time and in the manner
provided for in section fifteen of this act."
"SEC. 15. That if the owner, importer, consignee, or agent of
any imported merchandise, or the collector, or the Secretary of the
Treasury, shall be dissatisfied with the decision of the Board of
General Appraisers, as provided for in section fourteen of this
act, as to the construction of the law and the facts respecting the
classification of such merchandise and the rate of duty imposed
thereon under such classification, they or either of them may,
within thirty days next after such decision, and not afterwards,
apply to the circuit court of the United States within the district
in which the matter arises for a review of the questions of law and
fact involved in such decision. Such application shall be made by
filing in the office of the clerk of said circuit court a concise
statement of the errors of law and fact complained of and a copy of
such statement shall be served on the collector or on the importer,
owner, consignee, or agent, as the case may be. Thereupon the court
shall order the board of appraisers to return to said circuit court
the record and the evidence taken by them, together with a
certified statement of the facts involved in the case, and their
decisions thereon, and all the evidence taken by and before said
appraisers shall be competent evidence before said circuit court,
and within twenty days after the aforesaid return is made, the
court may, upon the application of the Secretary of the Treasury,
the collector of the port, or the importer, owner, consignee, or
agent, as the case may be, refer it to one of said general
appraisers, as an officer of the court, to take and return to the
court such further evidence as may be offered by the Secretary of
the Treasury, collector, importer, owner, consignee, or agent,
within sixty days thereafter, in such order and under such rules as
the court may prescribe, and such further evidence with the
aforesaid returns shall constitute the record upon which said
circuit court shall give priority to and proceed to hear and
determine the questions of law and fact involved in such decision,
respecting the classification of such merchandise and the rate of
duty imposed thereon under such classification, and the decision of
such court shall be final, and the proper collector, or person
acting as such, shall liquidate the entry accordingly unless such
court shall be of opinion that the question involved is of such
importance as to require a review of such decision, etc."
(The balance of the section is rendered obsolete by the act of
1891, providing a circuit court of appeals, to which such appeals
now go instead of to this Court. 26 Stat. 826; Supplement to R.S.,
pages 901, 903, sec. 6.)
