21 F. Cas. 700 | U.S. Circuit Court for the District of Southern New York | 1856
The importation by the Washington was made on the 15th of May, 1852. An entry was made of the same at the custom-house, and the value as contained in the entry corresponded with the value set down in the invoice. The goods were obtained by the plaintiffs by purchase, and the purchase price was the price contained in the entry and invoice. The purchase was made about two months before the shipment. The appraisers appraised the value at more than 10 per cent above the value contained in the entry. A re-appraisement was demanded by the plaintiffs, and the re-appraisers appraised the value at more than 10 per cent, above the value contained in the entry. Both the appraisal and re-appraisal were of the market value of the goods at the time they were shipped. Duties were exacted upon their value as found by the re-appraisal; and. also, a penalty for undervaluation. These payments were made under protest.
No cause of exception to the re-appraisal, which does not appear on the face of it, can be taken in this action, unless such exception is distinctly and specifically pointed out in the protest, as required by the protest act of February 20th, 1S45 (5 Stat. 727). Bartlett v. Kane, 16 How. [57 U. S.] 263. Numerous eases to that effect have been decided by this court. The re-appraisal must stand as valid, unless a sufficient reason to make it invalid is particularly pointed out to the col
As to the first exception. Was the re-ap-praisement void, because the re-appraisers were not sworn by the defendant? The protest does not state that the re-appraisers were not sworn by some one authorized to administer the oath; or that they were sworn by such a particular person, and no one else, and that such particular person had no power to administer the oath to them. The protest is: “The re-appraisers were not sworn by you.” The defendant gives three answers to this exception. The first answer is, that it is not necessary that the re-appraisers should be sworn by any one. The second is, that they can be sworn, if there is a necessity for it, by an appraiser. See section 17 of the act of August 30th, 1842 (5 Stat. 564). The third is, that if there is a necessity for their being sworn, and they cannot be sworn by an appraiser, they can be sworn by a deputy collector. The view I take of the case renders it unnecessary to consider the two first answers to this exception. The collector has power, with the sanction of the secretary of the treasury, to appoint as many deputies as may be necessary. A deputy, unless restricted. ' is necessarily clothed with the power which his principal has. In U. S. v. Barton (Case No. 14,534], it was decided, that when an oath was required to be administered by a collector, a deputy collector could administer it. This exception, therefore, must be adjudged not to be sufficient.
As to the second exception. It is this: — “20 per cent, penalty, under the 8th section of the tariff act of 1846, cannot be exacted, except where the importer has raised his invoice prices on entry.” No such construction as this can be put upon the section of the act referred to. By that section, the importer has a right to make, in the entry, an addition to the cost or value given in the invoice. But the additional duty of 20 per cent attaches, if the appraised value exceeds, by 10 per cent., the value declared in the entry, whether such addition has been made to the entry or not. This exception, therefore, must be adjudged to be insufficient.
The importation by the Asia was made on the 4th of June, 1852. An entry was made of the same at the custom-house, and the value as contained in the entry corresponded with the value as contained in the invoice. The goods were obtained by the plaintiffs about two weeks before they were shipped. The appraisers appraised their value at more than 10 per cent, above the value contained in the entry. Duties were exacted and paid upon their value as found in the appraisement, and a penalty of 20 per cent., by way of additional duty. These payments were made under protest.
This protest is very general, like the protest in the case of The Washington,
But, even if the collector had refused to appoint a merchant appraiser, as claimed, still the appraisement upon which the duties were levied would be valid. That appraisement was final and conclusive, until a new appraisement should be made. An appraisement by the appraisers is not set aside by an appeal merely, as is shown by the case of Bartlett v. Kane. It becomes of no effect, only when there has been another appraisement, upon the appeal. And, if the collector had refused to do his duty, in taking measures to have the appraisement revised, the only remedy for the plaintiffs would be an action on the case, against the collector, for such breach of duty, by means of which they were damnified. The conclusion is, that neither of the protests will avail the plaintiffs in this action, and that there must be a judgment for the defendant
[Case No. 17.222]