In an action brought against a collector for the return of
duties paid under protest, it was not competent for him to give in
evidence a letter from the Secretary of the Treasury to show that
the removal of one of the merchant appraisers was done by his
order.
The legality of such removal as to third persons was valid or
not according as the collector assessed legal power to make it on
the facts of the case. Courts must
Page 51 U. S. 226
look to the laws themselves, and not to the constructions placed
upon them by the heads of Departments, although these are entitled
to great respect and will always be duly weighed by the court.
Under the various acts of Congress providing for the payment of
duties, the time of procurement is the true time for fixing the
value, when the goods are manufactured or procured otherwise than
by purchase and are not of an origin foreign to the country whence
they are imported hither. The proviso in the fifth section of the
Act of 1823, 3 Stat. 732, relates altogether to this latter class
of goods.
The penalty provided in the act of 1842 related only to goods
purchased, and not to goods procured otherwise than by
purchase.
The regular appraisers and the merchant appraisers who may be
detailed for the duty must each one personally inspect and examine
the goods. It will not do for one to report to the other that the
goods are "merchantable" and then to fix the value according to a
general knowledge of the value of merchantable goods of that
description.
The removal by the collector of one of the merchant appraisers
because he wished time given to obtain more evidence from England,
and the substitution of another, were irregular, and made the whole
appraisement invalid. These appraisers are temporary umpires
between the permanent appraisers and the importers, and after
entering on their duties could not be removed either by the
collector or Secretary without some grave public ground beyond a
mere difference of opinion.
MR. JUSTICE Catron did not sit at the trial in this Court, being
a stockholder and co-partner of a railroad company having a similar
interest.
It was argued in conjunction with the ensuing case of
Maxwell v.
Griswold. Mr. Crittenden Attorney-General covered
both cases in his opening argument; Mr. Sherman replied in this
case, and Mr. McCulloh in
Maxwell v. Griswold, when Mr.
Crittenden concluded with a reply applicable to both cases. It is
difficult, therefore, to separate the arguments, although each case
will be stated separately.
It was an action of assumpsit brought by Thompson & Forman,
merchants in London, to recover back from Greely, the collector of
the port of Boston, an excess of duty and penalty paid to him as
collector under protest.
The bill of exceptions stated all the material facts in the
case, which were as follows:
"
Bill of Exceptions"
"This was an action of assumpsit brought by the plaintiffs,
merchants in London, England, against the defendant, the collector
of the port of Boston, to recover back the sum of $6,282.37, with
interest thereon, said sum being the amount of the additional duty
and penalty alleged by the plaintiffs to have been illegally
exacted by the defendant in his capacity aforesaid upon a cargo of
railroad iron imported by the plaintiffs into said port of Boston
in the manner and under the circumstances below stated, and which
said sum was paid under protest. "
Page 51 U. S. 227
"Upon the trial of said cause before the jury, after issue
joined, it was shown in evidence that the plaintiffs were
manufacturers of railroad iron in Wales, and resided in London,
England; that through their agents in Boston, Messrs. William F.
Weld & Co., they contracted to sell certain railroad iron to
the Fitchburg & Worcester Railroad Company and to deliver it in
Boston; that they made the rails ready for shipment in Newport,
Wales, and chartered a vessel for the transportation of said iron
to Boston, on 24 January, 1849; that the lading of the vessel was
completed on 24 February following, on which day the bills of
lading and invoices were dated and the vessel sailed."
"The invoice, duly made and authenticated, as the act of
Congress requires, fixed the value of the iron at five pounds per
ton, which was proved to be the fair market price at that date,
to-wit, on the said 24 January; that on the arrival of the vessel
in Boston in April of the same year, the iron was entered, and the
duties paid according to the invoice; that before the iron was
removed, the appraisers at the custom house, acting under general
orders from the Treasury Department, appraised the iron at six
pounds per ton, taking the date of the invoice and bill of lading
as the time when the value should be fixed, to-wit, 24 February,
1849, the price having materially advanced during the previous
thirty days; that the plaintiffs appealed from this appraisement,
and gave notice thereof to the defendant, who, in supposed
pursuance of statute provisions in such cases, appointed two
merchants,
viz., Peter Harvey and Charles Thompson, to
make a valuation of the iron according to the provisions of the
laws of Congress as construed by the Secretary of the Treasury, and
they took the following oath."
"
Custom House, Boston"
"
Collector's Office, April 14, 1849"
" We, the undersigned, appointed by the collector of Boston and
Charlestown to appraise a lot of railroad iron, imported per
Abellino, from Newport, Wales, the said importer having
requested a new appraisement thereof, in accordance with the
provisions of the sixteenth and seventeenth sections of the act of
30 August, 1842, do hereby solemnly swear or affirm diligently and
faithfully to examine and inspect said lot of railroad iron, and
truly to report, to the best of our knowledge and belief, the true
value thereof in accordance with the provisions of the laws of
Congress as construed by the Secretary of the Treasury in several
instructions issued by him in pursuance of the authority vested in
the said Secretary of the
Page 51 U. S. 228
Treasury, by the twenty-third and twenty-fourth sections of said
Acts of 30 August, 1842, by the Act of 30 July, 1846, and the
second section of the Act of August 10, 1846."
"PETER HARVEY"
"CHARLES THOMPSON"
" April 14, 1849, before me,"
"MARCUS MORTON,
Collector"
" A true copy. Attest: "
"I. O. BARNES,
Clerk"
"One of these merchant appraisers,
viz., Peter Harvey,
doubting whether the invoice was too low and thinking that it was
due to the plaintiffs that they should have time and opportunity to
furnish evidence from England, as to the true market value of the
iron, reported this to the collector in order that time might be
given; that thereupon this merchant was removed by the collector,
and another,
viz., Flavel Mosely, was appointed by the
collector in his place, who took the same oath which is mentioned
above as having been taken by Harvey and Thompson; that these
merchant appraisers,
viz., Thompson and Mosely, thus
constituted, valued the iron at five pounds and fifteen shillings
per ton, taking, in obedience to instructions from the Treasury
Department, 24 February as the time when the valuation should be
made; that this value so appraised being more than ten percent
above the invoice value of the iron, the defendant exacted a duty
of thirty percent on the amount which had been added to the
invoice, and in addition a penalty of twenty percent on the
appraised value; that the additional duty and the penalty amounted
to $6,282.37, which sum, with interest so paid, the plaintiffs
sought to recover back in this action; that this sum above
mentioned was paid under protest by the plaintiffs; that the custom
at the port of Boston was to fix the value of the imports at the
date of the invoice or bill of lading; that one of the custom house
appraisers did not inspect or see the iron, as it did not fall in
his division
i.e., the two appraisers divide the labor,
one taking one class of goods and the other another class, and it
was not the work of that appraiser who did not examine the iron to
appraise that class or kind of goods; that only one of the
merchants who finally acted as merchant appraisers ever saw the
iron, but that the said Mosely testified that the other appraiser,
Thompson, and also Harvey, had seen it, and that the kind of iron
was admitted, and that it was merchantable, without saying by whom;
that it was not necessary for him to see the iron to give it its
value, but that he could, when its quality was stated to him, fix
its value, and that he could and did in this way fairly appraise
the value of such iron. "
Page 51 U. S. 229
The merchant appraisers made the following return,
viz.: :
"Boston, May 18, 1849"
" SIR -- We have examined the following merchandise imported by
William F. Weld & Co., in the
Abellino, from Newport,
valued in the invoice at �4,720 0
s. 10
d.,
but which we are of opinion could not have been purchased at the
time and place of exportation for less than �5,428
0
s. 11
d."
" In conformity, therefore, with the provisions of the sixteenth
and seventeenth sections of the Tariff Act approved August 30,
1842, we do appraise the said merchandise as follows, any invoice
or affidavit thereto to the contrary notwithstanding:"
------------------------------------------------------------------
Marks Numbers Description of Merchandise Value
------------------------------------------------------------------
642 [3] bars railroad iron weighing
18 cwt. 2 qr. 23 lbs. at �5 15
s.
per ton �5,295 13 1
Commission 2 1/2 per . . . . . . . 132 7 10
------------
�5,428 0 11
------------------------------------------------------------------
"CHARLES THOMPSON"
"FLAVEL MOSELEY"
"
Merchant Appraisers"
" To the COLLECTOR
of the district of Boston and
Charlestown"
" A true copy. Attest: "
"ISAAC O. BARNES,
Clerk, C.C."
"The regular custom house appraisers had appraised it at
�6 per ton, making, with the commission, the amount of the
invoice to be �5,664 1
s. 2
d."
"The defendant offered to introduce a letter of the Secretary of
the Treasury to the defendant, to prove that the substitution of
the merchant appraiser, upon the delay of the first one to report
finally, was done by the orders of the Treasury Department, but the
letter was ruled out by the court."
"The court instructed the jury -- "
"1st. That the date of the procurement of the iron in England or
Wales, to-wit, 24 January, was the time at which the appraisers
should have fixed the value of the iron, and not the date of
invoice and bill of lading, to-wit, 24 February, when materially
different."
"2d. That if both appraisers, in each set of appraisers, did not
make some personal examination of the iron, their report or
decision was not made in conformity to law and did not justify the
penalty."
"3d. That the valuation of the merchant appraisers was
Page 51 U. S. 230
invalid, because one of the merchants who made the appraisal was
wrongfully substituted for another, to-wit, the merchant appraiser
who was turned out of office, or attempted to be, without any legal
authority to do it on the facts of the case."
"The jury found that the defendant did promise in manner and
form as the plaintiff had declared against him, and assessed
damages in the sum of $6,681.28."
"To which ruling and instructions of the court, given as
aforesaid, the said defendant at the trial excepted and prayed this
his bill of exceptions to be signed and sealed by the court."
"All which being found true, the same is accordingly signed and
sealed."
"In testimony whereof I have hereunto set my hand and seal."
"LEVI WOODBURY [SEAL]"
"
Associate Justice of the Supreme Court, U.S."
Upon this exception the case came up to this Court.
Page 51 U. S. 234
MR. JUSTICE WOODBURY delivered the opinion of the Court.
This writ of error is brought by the collector of Boston to
reverse a judgment rendered against him in favor of Thompson
et. al., importers of a quantity of railroad iron.
The judgment was that he should refund $6,681.28 which had been
exacted of the importers on the ground that the iron was appraised
more than ten percent above the invoice. The first questions
appearing on the record relate to rulings against the defendants
admitting certain evidence that the appraisers were duly sworn to
which the defendants objected.
But as the defendants do not bring a writ of error on that
account, the final judgment being in their favor, we proceed to
consider the rulings and instructions of which the collector, who
is the plaintiff here, complains.
The first ground of objection by him is the refusal of the court
below to allow in evidence a letter from the Secretary of the
Treasury, to show that the removal of one of the merchant
appraisers was made by his order.
We think, however, that the removal of that appraiser must be
deemed valid or not as to third persons according as the collector
possessed legal power to make it on the facts of the case. The
orders as well as the opinions of the head of the Treasury
Department, expressed in either letters or circulars, are entitled
to much respect and will always be duly weighed by this Court, but
it is the laws which are to govern, rather than their opinions of
them, and importers, in cases of doubt, are entitled to have their
right settled by the judicial exposition of those laws, rather than
by the views of the Department.
Marriott
v. Brune, 9 How. 634,
50 U. S. 635.
And though, as between the custom house officers and the
Department, the latter must by law control the course of
proceeding, 5 Stat. 566, yet as between them and the importer it is
well settled that the legality of all their doings may be revised
in the judicial tribunals.
Tracy v.
Swartwout, 10 Pet. 95;
United States v.
Lyman, 1 Mason C.C. 504; Opinions of Attorneys General
1015
Besides this objection, there are specific exceptions taken to
these instructions below which deserve a separate and more detailed
examination. Those instructions, as set out in the record, were
--
"1st. That the date of the procurement of the iron in England or
Wales, to-wit, 24 January, was the time at which the appraisers
should have fixed the value of the iron, and not the date of
invoice and bill of lading, to-wit, 24 of February, when materially
different."
"2d. That if both appraisers in each set of appraisers
Page 51 U. S. 235
did not make some personal examination of the iron, their report
or decision was not made in conformity to law, and did not justify
the penalty."
"3d. That the valuation of the merchant appraisers was invalid
because one of the merchants who made the appraisal was wrongfully
substituted for another, to-wit, the merchant appraiser who was
turned out of office, or attempted to be, without any legal
authority to do it on the facts of the case."
The first of these instructions extends merely to the point of
law whether the date of the procurement of the iron abroad was, by
the acts of Congress, the proper time at which to fix the value of
it or the date of the invoice and bill of lading.
This has become a highly important question to the government as
well as the commercial world under facts such as exist in this case
because a month had intervened here between the procurement and the
shipment, and in the meantime, under one of those extraordinary
fluctuations in prices which occasionally happen in trade, iron had
risen nearly one-fifth in value.
Ordinarily the time of the procurement of an article, as also
the time of the purchase of it when it is bought and not
manufactured by the importer, is near the date of the invoice or
exportation, and the price differing but little. Then, if selecting
for the period of the appraisal the latter date, it is acquiesced
in by the importer as immaterial. But where, as in this instance,
the difference in time and value is great, the importer has a right
to insist on the time as provided by the acts of Congress.
Which is the proper time is therefore all that is involved in
this first instruction, and not another question beside, which has
been urged by the plaintiff in error -- whether the chartering of
the vessel in England to transport the iron here, after it was
ordered, made, and collected for shipment by the importers who
manufactured it, should in point of law be deemed the time of its
procurement. No charge below on that point is set out; none,
therefore, can be revised here, however easily it could be
settled.
After full consideration, we think that the time of procurement
was the proper time for appraising the value, and it seems to us to
have been stated in the instruction in conformity with both the
express language of several acts of Congress and the reason of the
case.
The first leading act on this subject was passed March 1, 1823,
3 Stat. 732. Officers to appraise the value existed before only in
the case of goods with no invoice, or damaged, or fraud suspected.
1 Stat. 41, 42, 166. The invoice, with the oath of the importer,
was previously the chief guide.
Page 51 U. S. 236
But under an impression that goods were often undervalued in the
invoice after the increased duties imposed in 1816, and that the
revenue thus became diminished, it was provided by the sixteenth
section of the act of 1823 that appraisers should be appointed to
examine and estimate the true value of the merchandise imported.
And to remove all doubt as to the time when the value was to be
fixed, it was expressly enacted in the fifth section
"That the
ad valorem rates of duty upon goods, wares,
and merchandise shall be estimated in the manner following: to the
actual cost, if the same shall have been actually purchased, or the
actual value, if the same shall have been procured otherwise than
by purchase, at the time and place when and where purchased, or
otherwise procured, or to the appraised value, if appraised, except
in cases where goods are subjected to the penalty provided for in
the thirteenth section of this act, shall be added all charges,
except insurance, and also twenty percentum on the said cost or
value, and charges, if imported from the Cape of Good Hope, or any
place beyond that, or from beyond Cape Horn, or ten percentum if
from any other place or country, and the said rates of duty shall
be estimated on such aggregate amount, provided that in all cases
where any goods, wares, and merchandise subject to
ad
valorem duty shall have been imported from a country other
than that in which the same were manufactured or produced, the
appraisers shall value the same at the current value at the time of
exportation in the country where the same may have been originally
manufactured or produced."
3 Stat. 732.
These words seem too plain for doubt that the time to fix the
value in a case like this, when the goods have been procured rather
than purchased, is the time of procurement, and when purchased is
the time of the purchase, and in neither case should be the date of
the invoice or bill of lading if they are at a different time.
It has been urged, however, in pursuance of a Treasury circular
of November 26, 1846, that this act should receive a different
construction, and that the true time is the time of exportation,
because that is named in the proviso, and thus is supposed to annul
or modify all which precedes it.
But it seems to be overlooked that the proviso relates to
another kind of merchandise than that regulated before in the body
of the section, the former being expressly goods of an origin
foreign to the country whence they are now to be imported, and the
latter goods not foreign, but of the growth or manufacture of the
country from which they are imported hither.
Page 51 U. S. 237
As the time of the original procurement or purchase of the
proviso goods in the country of their birth might have been years
before, and difficult to fix, a new and different time is selected
for them -- namely the period of their exportation to this
country.
This distinction has been ever since preserved in our laws
between these kinds of merchandise.
See the sixteenth
section of the Act of August 30, 1842 4 Stat. 564;
see also
Alfonso v. United States, 2 Story 429, 430.
It would be very irrational to consider such a proviso as a
repeal or a change of the body of a section where it does not
contradict it, but merely purports to regulate the appraisal of a
different species of goods in a different manner.
See on
this 1 Kent Com. 462, 463
The proviso does not pretend in words or spirit to interfere
with goods situated like those contained in the shipment in the
present case, and hence, instead of conflicting, it is in harmony
and consistent. 23 Me. 360.
As further proof that the time of the procurement was to remain
the guide in cases like this, notwithstanding the proviso, the
fourth section of this act continues in full force and unmodified,
and requires the manufacturer or owner, as was done here, when
importing, to swear that
"the goods were not actually bought by me in the ordinary mode
of bargain and sale, but are of the value stated, including charges
&c., at the time or times, and place or places, when and where
procured for my account."
3 Stat. 732.
See on this oath 2 Story 430.
So the eighth section still exists and positively requires the
oath of the importer when, as here, a foreigner, that
"the invoice contains a true and faithful account of the said
goods, wares, and merchandise, at their fair market value at the
time and place when and where the same were procured or
manufactured, as the case may be, and all charges thereon."
3 Stat. 733.
Other similar illustrations of this might be cited but are not
necessary to support this obvious position that the time of
procurement is the true time for fixing the value when the goods
are manufactured or procured otherwise than by purchase and are not
of an origin foreign to the country whence they are imported
hither. Indeed, it would seem reasonable, independent of the
express language of the acts of Congress, that if uncertainty
remained about the true construction of the fifth section of the
act of 1823, the proper time for fixing the value of goods should
be considered the time they were purchased or procured, because the
idea of having the value and charges fixed and
Page 51 U. S. 238
assessing the duty on them is to tax the importer on the amount
or value he has expended. And what he has expended cannot be more
than what he has thus paid, and the invoice itself, often prepared,
as in the interior, days and weeks before the vessel sails, states
the price or value as thus made up, and not at the time of the bill
of lading, when the market value may be higher or lower.
We do not find that the value at the time of exportation of
goods of the growth or manufacture of the country whence exported
has ever been selected by any act of Congress for the purpose of
assessing the duty. Though in one instance it is adopted merely to
compile statistical tables of the value of foreign imports, 3 Stat.
542, it is never done to regulate duties.
The value for statistical purposes it is reasonable to fix at
the time of exportation, because it thus indicates the worth of all
shipped hither, which is what is then desired; but the value on
which to tax the importer is the capital or price he has invested
in the goods, which is
prima facie the amount paid, if
purchased, or the amount for which they were procured, if not
purchased.
There is another objection in this case to the applicability of
the act of 1842, if construed to affix this penalty to an
undervaluation of goods, procured otherwise than by purchase.
See §§ 16, 17; 5 Stat. 563, 564.
That act applies expressly only to goods "purchased." So the Act
of 1846, July 30, applies only to goods "actually purchased."
See § 8, page 43, Pamphlet Laws for 1846.
They thus appear to leave goods procured other ways than by
purchase to the provisions of the acts of 1823 and 1830, which do
not at all affix the penalty here exacted, looking to the value,
whether when procured or when exported.
Especially in a penal provision, it could not seem judicious,
any more than legal, to extend it beyond the clear language of the
act.
See cases in
Maxwell v. Griswold, post, p.
51 U. S. 242. But
on this objection, growing out of the words of the act of 1842, it
is hardly necessary to give a decisive opinion, as the instruction
to the jury does not in form cover it, and on the other ground the
appraisal is palpably erroneous on account of its being made as of
the wrong time.
The second general instruction excepted to is that the appraisal
was invalid because not made on a personal examination of any of
the goods by all of those certifying to its correctness.
It is almost impossible to adopt any other construction of the
acts of Congress or of the analogies of the case. Those
Page 51 U. S. 239
acts expressly require that the appraisers should inspect or
examine a portion of the goods pointed out by the collector. 4
Stat. 410; 3
id. 736; 5
id. 565.
The oaths administered to them are, "diligently and faithfully
to examine the goods," &c., Act of 1823, § 16 3 Stat.
735.
So of the assistant appraisers, the oath is in like words. 4
Stat. 409.
In this very case, the appraisers swore "diligently and
faithfully to examine and inspect said lot of railroad iron," and
reported that "we have examined" it &c., when the record states
that one of the merchant appraisers "never saw the iron," and one
of the permanent appraisers did not "examine," and "did not inspect
or see the iron."
Besides this, it would be unreasonable to overturn the invoices
and oaths of importers unless by a personal inspection and
examination; an insufficient value should clearly appear to have
been affixed, considering the quality of the article first, and
next the market value abroad of articles of that quality, at the
time required by law.
But it has been urged that if one examines and reports to the
other that the article is "merchantable," the other can correctly
fix the value by knowing the value of what is merchantable.
The answer to this is that the law requires the quality to be
fixed by inspection or examination, and not alone by evidence or
opinion of others.
Again too, an article may be barely merchantable and yet not be
worth so much as one that is not only merchantable but on the brink
of being better than merchantable. A personal examination,
therefore, is proper for making such discriminations in quality and
value.
It is further urged against our construction that a sufficient
force does not exist in most custom houses for all the appraisers
to make personal examinations or all the assistant appraisers to do
it. There are two answers to this. If officers enough to perform
these public duties do not exist, more should be authorized or
their duties to examine in person should be dispensed with by an
act of Congress. Again, the collector need detail no more officers
to make the appraisal than can be spared or than the law
imperatively demands. All we hold is that such as are detailed in a
particular case should do their duty in the manner which their
oaths require, and it would be a novelty for courts to countenance
one or more persons, if undertaking a duty in such a case, to be
exonerated from it because it was burdensome or difficult.
Page 51 U. S. 240
There is, too, a sufficient answer to another objection, that if
a personal examination was required of every article, time enough
would not exist for the purpose. For the acts of Congress do not
require every article in a package to be examined. A fair selection
of specimens or samples is made a sufficient. 3 Stat. 735, §
15.
The instruction by the court below on this point is therefore
the only one tolerated by the language of the acts of Congress and
the oaths of the appraisers, though a different usage may have
grown up at some ports without intending anything negligent or
wrong.
The only remaining question is whether the removal of one of the
merchant appraisers and the substitution of another who estimated
the value was not on the facts of this case irregular so as to make
their appraisal invalid.
The court below instructed the jury it was so. We feel
constrained by the law and reason of the case to concur in that
view. The person removed was one selected as a member of an
appellate tribunal to revise the value estimated by the regular
appraisers, and he was removed and another appointed, as the record
shows, not for any misconduct discovered or any incompetency
intervening by act of God or otherwise, but merely because he
wished time given to obtain more evidence from England, which might
justify a lower estimate.
Now without saying what might be proper in case of a strictly
public officer,
quasi-judicial and misbehaving, as nothing
was ruled on that point below, and indeed without holding what
might be competent in case of an arbitrator or referee, public or
private, becoming corrupted or incapable, as the ruling did not
apply to that case, we are satisfied that the allowance of an
appeal to merchant appraisers by the importer would be nugatory, or
a mockery, if a member of the tribunal can be removed by the
collector or Secretary whenever his opinion appears not likely to
accord with theirs on the matter submitted. He is, as to that, a
quasi-judge, a "legislative referee."
Rankin v.
Hoyt, 4 How. 327.
And an interference with such a referee for such a cause would
conflict with all just notions of judicial independence or judicial
purity, and when done and sanctioned as to a public referee, it
might shake confidence abroad as well as at home in the
administration of our revenue system as connected with commercial
imports. In all free countries, public sentiment is much shocked by
any interference with judicial duties tending to warp them. And
more especially, if so made as to be likely to influence a pending
question in favor of those interfering, and actually ending in the
removal of a judicial incumbent
Page 51 U. S. 241
merely for an opinion expressed in the course of the case which
was not agreeable.
Again, the merchant appraisers here can hardly be considered
public officers at all in the ordinary acceptation of the term. One
of them was formerly selected by the importer alone. Neither of
them now holds a commission, nor are they selected to discharge
generally public duties of a certain character.
But they are mere umpires between the permanent appraisers and
the importers when disagreeing as to the value in some particular
case, and it is difficult to see how, when third persons are
interested in their decision, the other side, whether represented
by the collector or Secretary, could, without the consent of those
third persons or without some grave public ground beyond a mere
difference of opinion, remove an umpire and thus attempt to change
the award about to be made.
Though some very culpable cases of removals of public judicial
officers occurred in England before her revolution, during the
arbitrary reign of the house of Stuart, and led for security to a
change in the tenure of their offices from the pleasure of the King
to good behavior, yet nothing of the kind seems since to be
countenanced here or there for mere difference of opinion. And the
course pursued in the present instance was probably the result of
not adverting to the judicial character of a merchant appraiser, or
of a misapprehension as to the duty and right to do the act, only
for requesting delay to obtain more evidence, rather than arising
from any intentional abuse of power.
The delay, asked for the benefit of the importers, was also to
prevent a penalty, and in such a case, when doubts exist, the
respondent is to be favored.
32 U. S. 7 Pet.
453; 1 Baldw. 317. The removal, made to avoid this delay of further
evidence against the forfeiture, was likewise in the case of
merchants and manufacturers of apparently high respectability and
without a particle of evidence indicating any intent by them to
defraud the government.
Almost the whole system of appraisals is founded on the idea
that fraud has been or is likely to be practiced. And while this
Court has never been backward in ferreting out and punishing real
frauds attempted on the revenue, yet at the same time, where no
dishonesty is pretended, but a disposition appears in the importer
to conform to the laws, he is entitled to full legal protection,
else fair commerce between us and the rest of the world will be
discouraged and our national character tarnished.
The government, too, could not suffer by the delay asked here,
as they, in the meantime, would hold the goods, unless
Page 51 U. S. 242
the increased duties on the highest appraisal, and the penalty,
were paid to them.
The judgment below is
Affirmed.
Order
This cause came on to be heard on the transcript of the record
from the Circuit Court of the United States for the District of
Massachusetts, and was argued by counsel. On consideration whereof
it is now here ordered and adjudged by this Court that the judgment
of the said circuit court in this cause be and the same is hereby
affirmed, with costs and damages at the rate of six percentum per
annum.
