No. 123 | 2d Cir. | Mar 23, 1906
The Board of General Appraisers found that the importations were dolls, of which there were very many varieties, each variety differing from every other, so that a sample of one was not in any way representative of any other; also that the single General Appraiser who reappraised the dolls, and the Board of three General Appraisers which sat in review of such reappraisement, had before them only one case out of ten of each importation, the sank" being at least one case from each invoice, which did not represent the numerous varieties of dolls making up the importations. What hap
No one disputes the proposition that a decision as to valuation or appraisement of imported merchandise cannot be reviewed under section 14, except for jurisdictional defects. The points raised must he found, not in the briefs, but in the protest, which charges that:
“Neither the General Appraisers nor any of the witnesses in the matter had at or prior to the hearing or decision seen or examined, or sufficiently examined, any of the cases in question, or sufficient or proper samples therefrom, or a legal,, proper, and sufficient number of cases for the purpose from the invoices in question, or sufficient and proper samples therefrom. Our. offers to produce adequate samples were rejected. There was material informality in the conduct and conclusion of said so-called reappraisements. ⅜ ⅞ $ wre claim that duty should be assessed solely on the basis of the invoice valuations, inasmuch as we have not received, but have been deprived of, legal and valid reappraisements, such as we were entitled to under the law.”
Strictly construed, this1 protest is against the action of the Board of three General Appraisers only. It has, however, been treated all along as covering also the reappraisement by a single General Appraiser, and may be accorded an equally liberal construction here.
An interesting and very important question is presented on this appeal, viz., when the Board of three General Appraisers sits, under section 13, in review of the reappraisement by a single General Appraiser, do they sit as a court of review or as appraisers? Counsel for the government contend (and support their contention by a very strong argument) that the change of phraseology in the section is highly important; that the single General Appraiser, when so directed by the collector, makes a reappraisement under like conditions as the local appraiser; but that when, upon the importer’s notice of dis
It is not necessary to decide that question in this case, since the result will be the same either way. A decision in accord with the contention of the government would apparently he inconsistent with the opinion of this court in U. S. v. Roeb, 107 F. 692" court="2d Cir." date_filed="1901-04-03" href="https://app.midpage.ai/document/united-states-v-loeb-8743755?utm_source=webapp" opinion_id="8743755">107 Fed. 692, 1 C. C. C. A. 562. That opinion was concurred in by three judges, while in the cause at bar only two are sitting, and the decision upon what is practically a reargument of that case may appropriately be reserved for a full bench, inasmuch as our conclusions on another branch of the case lead to an affirmance of the collector’s action.
It is further contended for the government that, even upon their own theory, the importers’ testimony is not sufficient to warrant a decision in their favor. Even under the Loeb Case it is not necessary for the Board of three General Appraisers to have all the importations before: them; samples will equally well answer the purpose. No doubt, samples of the actual goods covered by the invoice are preferable, but it may very well be that samples which can be shown t<^ be accurate representatives of the importations would answer the purpose. Such seems to be the importers’ own view of the situation, for their protest asserts that they offered to “produce adequate samples,” and the proof 'indicates that this meant, not invoice samples, but stock samples. The evidence of such offer and rejection, however, is quite unsatisfactory. Apparently no such offer was made to the “Board” nor to all three General Appraisers, but only to one of them. Other alleged defects in proof are pointed out by counsel for the government; but fortunately we need not dispose of the cause on any such technical objections as these. It may be conceded, for the purposes of this appeal, that the reappraisement of the single General Appraiser and the review thereof by the board of three were void for jurisdictional defects. What is the result? The answer will be found in the act itself. Section 13 provides that the appraiser shall revise and correct the reports of the assistant appraisers as he may judge proper, and the appraiser shall report to the collector his decision as to the value of the merchandise appraised. The decision of the appraiser, or of the General Ap
In the case at bar we start with an appraisement by. the local appraiser, and the presumption that he, a public officer, performed his statutory duties, .There is not a scintilla of evidence to show the contrary. For aught that appears, he may have had before him samples of every variety of dolls covered by the invoices; some taken from the public storecasés, and the others furnished by the importers themselves, or by the persons to whom they had sold and delivered the cases not sent to- public store. Moreover, the importers do not attack* tire validity of the appraisement by the local appraiser; no reference to it, directly or. indirectly, is found in the protest. Under these circumstances, w.e must hold that such appraisement is valid, and that the collector was not in error when he based his assessment for duties thereon.
The decision of the'Circuit Court is reversed, and the collector’s action'. approved.