author: Mr. Justice WOODBURY

text:
    Philip Greely, Junior, Plaintiff in error, v. William Thompson and William Henry Forman, Merchants and Copartners, trading under the Style and Firm of Thompson and Forman, Aliens and Residents of London, Defendants.
    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 bvhis order. '

    The legality of such removal as to third persons was valid or not, according as the collector possessed legal power tojnake it on the facts of the case. Courts must 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 óf the act of 1823 (3 Stat, at Large, 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, was irregular, and made the whole appraisement invalid. These appraisers are temj orary 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.
    This ease was brought up, by writ of error, from the Circuit Court of the United States for the District of Massachusetts.
    Mr. Justice Catron did not sit at the trial in this court,,being a stockholder-and copartner of a railroad company having a similar interest. ' . «
    It was argued in conjunction with the ensuing case of -Maxwell v. Griswold . et al. , Mr. Crittenden (Attorney-General) covered both cases in his opening argument; Mr. Shermcm replied in this, case, and .Mr. MeCulloh in Maxwell v. Griswold, when Mr. Crittenden concluded with a reply applicable to both cases. It is chf&cultr therefore, to separate the arguments, although each case will be stated separately.
    It was an action of assumpsit brought by Thompson & For-man, 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 al) the material facts in the case, which were as follows.

      Bill of Exceptions.

    This was -an action óf 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.

      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 Fitch-burg and 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, oh the 24th of January, 1849; that the lading of the vessel was completed on the 24th of 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 24th day of 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 customhouse, 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, the 24tlrof 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 the 30th of 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 Seem tary of the Treasury, in several instructions issued by him, in pursuance of the authority vested in the said Secretary of the Treasury, by the twenty-third and twenty-fourth, sections of said act of 30th August, 1842, by the act of 30th July, 1846, and the second section of the act of August 10th, 1846.
    Peter Harvey,
    Charles Thomeson.
    “ 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 md fifteen shillings per ton, taking, in obedience to instructions :rom tbe Treasury Department, the 24th of February as the dme when the valuation should be made; that this value so appraised being more than ten per cent, above the invoice value of the iron, the defendant exacted a duty of thirty per cent, on the amount which had been added to the invoice, and, in addition, a penalty of twenty per cent, 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 thé 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.

      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 Os. I0i/., but which we are of opinion could not have been purchased at the time and place of exportation for less than £ 5,428 Os. 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.

    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 Is. 2d.

    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, the 24th of 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, the 24th of 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 invalid, because one of the merchants who made 4he 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 f> 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.
    It was argued by Mr. Crittenden, (-Attorney-General,) for the plaintiff in error, and by Mr. Sherman, for the. defendants in error.

      Mr. Crittenden made' the following points.
    I. That the period of exportation from the foreign country is the true date, in contemplation of law, at which the value of imported articles subject to an ad valorem duty is fixed.
    This question depends on the construction of the following statutes: — Section 16 of Tariff' Act of 1842 (5 Stat. at Large, ,563); section 8 of Tariff Act of 1846 (Session Law's, 43); section 2 of Appropriation Act of 1846 ; sections 8 and 10 of the Act of 1st March, 1823 (3 Stat. at Large, 735).
    ,, By the twenty-third section of the act of 1842 (5 Stat. at Large, 566) it is enacted, “ That it shall be the duty of the Secretary of the Treasury from time to time to establish such rules and regulations, not inconsistent with the laws of' the United States, to secure a just, faithful, and impartial appraisement of all goods, wares, and merchandise imported into the United States, and just and proper entries.of such actual market value or wholesale price thereof.” Secretary Walker’s Circular of 1st July, 1847 (1 Mayo, 364) ; another of 7th August, 1848 ; and another of 26th December, 1848. Tucker v. Kane, decided in Circuit Court for. Maryland District, in manuscript.
    The apt .of 10th February, 1820, entitled “ An Act to provide for obtaining accurate statements of the foreign commerce of the United States,” in its tenth section, enacts, “That all articles imported shall be valued at their actual cost, or the values which they may truly bear in the foreign ports from which they are exported for importation into the United States, at the time of.such exportation.” (3 Stat. at'Large, 542.)
    II. That the dutiable valuation of goods is the market value or wholesale price at the period of the exportation from the- foreign country is manifest from the eighth section of the act of 1846, which makes it “ lawful-for the owner, consignee, or agent of imports which have been actually purchased,, on entry of the same, to make such addition in the entry to the cost or value given in the invoice as in his opinion may raise the same to the true market value of such imports in the principal markets of the -.country whence the importation shall have been made, or in which the goods imported shall have been originally manufactured or produced, as the case may be.”
    III. That the invoice of the iron, dated 24th February, 1849, as’follows: “ Invoice of railway iron shipped at Newport, by Thompson and Forman, on board the Abellino,' Captain C. H. Crozier, bound for Charlestown, Boston harbor, consigned to Messrs. W. F. Weld & Co., for account of the Fitchburg and Worcester Railroad Company,” and the oath of Mr. Weld, made by him on making the entry, that the railroad company were the owners of fhe iron, show that the case came within the eighth section above mentioned, and that the provisions of that section were applicable to it.
    IV. That the bill of lading and the invoice, in the latter of which the iron is valued at five pounds per ton, presented to the colléctor at the time of entry, are dated the 24th February, 1849, and that no evidence of the value of the iron on any other day is applicable, which shows that the value should be estimated at the time of exportation. Act of 1823, § 23 (3 Stat. at Large, 737).
    V. That it is not necessary that all the official appraisers, or all the merchant appraisers, should have made a personal examination of the iron. Act of 1823, § 16 (3 Stat. at Large, 735); Act of 28th May, 1830, §§ 1 and 2 (4 Stat. at Large, 409); Act of 14th July, 1832, § 8 (4 Stat. at Large, 592); Act of 1842, §§T6,17, 21, and. 22 (5 Stat, at Large, 563 et seq.). The seventeenth section is applicable to merchant appraisers.
    VI. That-the appraisement of 'the merchant appraisers was final. Act of 1842, § 17 (5 Stat. _at Large, 564); Tucker v. Kane, above referred to.
    VII. That the valuation was valid, being made by two mer-' chants. Act of 1842, § 17; Treasury Circular of 26th December, 1848; Act of 1823, § 19 (3 Stat. at Large, 736).
    VIII. That the action- cannot be maintained’by Thompson and Forman. Act of 2d March, 1799, 4 62 (1 Stat. at Large;-675); Act of 26th February, 1845, § 1 (5 Stat. at Large, 727); Independent Treasury Act of. 1846, § 9; Meredith v. United States, 13 Pet. 486; Knox v. Devens, 5 Mason, 397.

      Mr. Skerman, for the defendants.in error, contended,—
    I. That the appraisement was illegal and void, and did not justify the exaction of the additional duty and penalty imposed and paid, nor any portion thereof: —
    1. Because the dutiable value of said iron, as fixed by law, was “ the fair market value,” or “ actual value ” 'thereof, “ at the time and place when and where procured,” or manufactured (with the dutiable charges added); and not its value at the timé.of exportation, as estimated by the appraisers; and. that the proviso to the sixteenth section of the Duty Act of 30th August, 1842, under which thé appraisers were directed, by circulars from the Secretary 'of the Treasury, to assume the date, of exportation in fixing the value of all imports, applies only to goods, wares, and merchandise “ imported into the United States, from a country in which the same have not been manufactured or produced ”; and, therefore, did not apply to the iron in question, which was produced and manufactured in the country from which it was imported, and the actual value, or “fair market value” of which “when procured,” is conceded to.have been truly stated in the invoice and entry thereof.
    Because both of the appraisers did not “ examine and inspect” the iron, as the law and their oaths required, and as they alleged in their return they had done; and" that to render an appraisement valid, either by public appraisers or merchant appraisers, both appraisers of either set of appraisers must have made some pergonal examination or inspection of the merchandise.
    3. Because the merchant appraisers were not legally qualified, having taken an oáth different from that prescribed by law, and • one which bound them to make an appraisement in violation of law, by fixing the dutiable value of the iron at a period different from that préscribed by Congress; and because the merchant. appraiser Moseley appears hot to have been sworn at all.
    4. Because the removal of the merchant appraiser Harvey, after he had been appointed, sworn, and entered, upon the dis-charge of his duty, (and the substitution of another,) for having-expressed doubts “whether the invoice was, foo 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,” and had “reported this to the collector, in order that such' time might be given,” was arbitrary and illegal.

      Duty Act of 1st March, 1823, particularly §§ 4, 5, 7, 8, 16, 18 (3 Stat. at Large, 729); Duty Act of July, 1832, particularly §§ 7, 15 (4 Stat. at Large, 583); Duty Act of 30th August, 1842, particularly §§ 16,17, 21 (5 Stat. at Large, 548); and Duty Act of 30th July, 1846, particularly § 11 (Schedule C) and § 8 (Session-Laws,'1846,- p. 68).
    Reference will also be 'made, if necessary, to Duty Acts of 2d March, 1799 .(1 "Stat. at Large,'644); of 20th April, 1818 (3 Stat. at Large, 4(S3); of May, 1828 (4 Stat. at Large, 570); and of 28th May, 1830 (Ibid. 409).
    : Tracy and Balestier v. Swartwout, 10 Peters, 80; Elliott v. Swartwout, 10 Peters, 137; United States v. Lyman, 1 Mason, 504. United States v. 14 Packages, Gilpin, 235; United States v. Tappan, 11 Wheaton, 419; United States v. Freeman, 3 Howard, 564; Kunckle v. Kunckle, 1 Dallas, 364; United States v. Slade, 2 Mason, 75; Day v. Wilber, 2 Caines, 134; United States v. Two Bales of Cloths, 3 Hunt’s Merchants’ Magazine, 527; Liverpool Hero, 2 Gall. 18.3; Gilpin’s D. C. R. 239, 240, and 241; United States v. 16 Packages, 2 Mason, 48; Moore v. Ewing et al., Coxe (N. J.) 144; The King v. Wykes, Andrews, 238; Billings v. Prinn et al., 2 Black. 1017; The King v. The Inhabitants of Hamstall Ridware, 3 Term R. 380; Dalling v. Matchett, Barnes, 57; Jacob’s Law Dict, tit. Oath, p. 425; 1 Mayo’s Fiscal Department, 364.
    II. The mere letter of the Secretary of the Treasury, offered by the defendant below to justify the removal of the merchdnt appraiser Harvey, and the substitution, of another, because said Harvey had asked for, or suggested to "the collector, "the delay necessary to procure the evidence deemed proper for a fair and faithful performance of his duty, could not legally justify such arbitrary removal and substitution, and was therefore properly rejected by the court below. Duty Act of 2d March, 1823, § 18; Duty Act of 30th August, 1842, §§ 16,17; Tracy and Balestier v. Swartwout, 10 Peters, 80; Elliott v. Swartwout, 10 Peters, 137; United States v. Lyman, 1 Mason, 504; Alfonso v. United States, 2 Story, 421; Tucker v. Kane, MS. decision of Chief Justice Taney, Maryland Circuit.
    III. The eighth section of the Duty Act of July 30th, 1846, under which the additional duty and penalty were exacted, was only applicable to goods, wares, and merchandise which had been “ actually purchased,” and not to those which had been “procured otherwise than by purchase”; and therefore did not authorize such exaction. Duty Act of 30th July, 1846, § 8; Whitney v. Emmett, 1 Baldwin, C. C. 316; Barlow v. United States, 7 Peters, 404.
   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 per cent, above the invoice. The .first questions appearing on the record relate to rulings against the defendants, admitting certairrevidence 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 Howard, 634, 635.) And though, as between the custom-house officers and the Department, the latter must by law control the course of proceeding (5 Stat. at Large, 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 et al., v. Swartwout, 10 Peters, 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, re, —

“ 1st. That the date of the procurement of the iron in Eng-' iand -or Wales, to wit, the 24th of 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, the 24th of February, when materially different.
“2d. That if both appraisers, in each set of appraisers, did not make some personal examination of tne 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 mean time, 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 o'f 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 1st, 1823. (3 Stat. at Large, 732.) Officers to appraise the value existed before only in the case of goods with no invoice, or damaged, or fraud suspected. (1 Stat. at Large, 41, 42, 166.) The invoice, with the oath of the importer, was previously the.chief guide.

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 per centum 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 per cem turn 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. at Large, 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.

As the time of the original procurement or purchase of tfre 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. at Large, 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 Maine, 360.

As further proof that the time of the procurement was to remain the guide in cases like this, notwithstanding the provisó, 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 timé or times, and place or places, when and where procured for,my account.” (3 Stat. at Large, 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. at Large, 733.

Other similar illustrations of this might'be cited, but are not necessary , to support this obvious position, that the time of procurement's the true time for fixing the value, when the goods are manufactured or procured otherwise than, by purchase, and are npt 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 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 thé 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. at Large, 542), it is never done to regúlate 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 ihis penalty to an undervaluation of goods, procured otherwise than by purchase. (See §§ 16,17 ; 5 Stat. at Large, 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 affixitlre penalty here exacted, looking to the valué, whether when procured ó. 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. 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 in valid,"'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 anyother construction of the acts of Congress, or of the analogies of the case. Those acts expressly require, that the appraisers should inspect or examine a portion of the goods pointed out by the collector. 4 Stat. at Large, 410; 3 Stat. at Large, 736; 5 Stat. at Large, 565..

The oaths administered to them are, “ diligently and.faithfully to examine the goods,” &c. Act of 1823, §. 16 (3 Stat. at Large, 735).

So of the assistant appraisers, the oath is in like words! (4 Stat. at Large, 409).

In this'very case the appraisers swore “ diligently and faithfully to examine .and inspect said lot of railroad iron,” and reported thatwe 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. 5s, 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.

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 purposé. 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 sufficient. (3 Stat. at Large, 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 any thing 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^tny 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 corrupfed 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 Howard, 327.

And an interference with such a referee for süch a cause would conflict with all just notions of judicial independence,.'or judicial purity, and when done and sanctioned as to a publiereferee, 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 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.

Bat 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 behaviour, 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. (7 Peters, 453 ; .1 Baldwin, C. C. 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 tne idea, that fraud has been, or is likely to be, practised. 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 fujl 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' mean time, would hold the goods, unless 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 f”om 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 per centum per 'annum.


source: Caselaw Access Project

license: Public Domain

text:
    Hugh Maxwell, Plaintiff in error, v. Nathaniel L. Griswold, George Griswold, George W. Gray, and George Griswold, Junior.
    The points ruled in the preceding case of Greely v. Thompson and Forman adopted and applied to this case also, so far as they are applicable.
    Where the collector insisted .upon either having the goods appraised at the value at the time of shipment, the consequence of which would have been an addition of so much to the invoice price as to subject the importer'to a penalty; or to allow the importer voluntarily to make the addition to the. invoice, price and so escape the penalty, and the importer chose the latter course, this was not such a voluntary payment of duties on his part as to debar him from bringing an action against the collector for the recovery of the excess thus illegally exacted.
    This case was brought up, by writ of error, from the Circuit Court of the United States for the Southern District of New York;
    Like the preceding case of Greely v. Thompson and For-man, it was an action brought by the defendants in error against Maxwell, the collector at the port of New York, for the return of duties paid under protest.
    In January, 1850, the defendants in error imported into New York, in the ship Matilda, from Manilla, sundry bags of sugar and bales of hemp. The goods were purchased in March and April, 1849, but not shipped until about the 24th of July, 1849, when the market prices had risen very considerably. The assistant appraiser reported upon the value of the articles, meaning by the word valué “ the actual market value at the time of shipment to the United States in the principal markets of the country of produce.”
    The importers paid the duties, under protests, one of which was the following,

      Protest Notice.

    “ New York, January 2nd, 1850.
    “ H. Maxwell, Esq., Collector: —
    “We hereby protest against the duties demanded from us by the collector on this importation of plantain bark, or hemp.
    “ One objection is, that the duties, contrary to law and justice, are assessed upon a greater value than the cost of the same when purchased for'us for shipment to the United States; the true costs and charges, being the value in the foreign market (Manilla), at the time when purchased for shipment, amount to $ 38,197.95, say thirty-eight thousand one hundred and ninety-seven dollars. We are required to pay duties upon an estimated and fictitious value, amounting, with charges, &c., to $47,662.95, and we are compelled to enter the goods at their estimated and fictitious value to-save penalties and forfeitures, and to get possession of our property.
    “ We protest against being committed to any thing by the form of the entry, which we submit to upon compulsion, insisting that they are not áccording to the truths of the transactions. The sixteenth section of the tariff law of 1842 fixes the date of .purchase for shipment as the time in reference to which the value is to be ascertained, except in the case of goods imported into the United .States from some country other than that of the growtlj or manufacture of the imported articles. There is nothing in the eighth section, or any part of the tariff act of 1846, nor in any other law of the United States, inconsistent with the sixteenth section of the act of 1842. .
    “ We give notice that we intend, to seek redress by suit at-law and otherwise, as we may be advised, for the- wrong done to us in respect to the excessive duty imposed upon this importation.
    “ We rely upon the objection we have made, and upon such other objections founded in law and in fact as belong to the case, and we now offer to specify them to the collector, more particularly if requested so to do.
    “ The sum of money now illegally extorted from us, over and above the true and honest duties, is $ 2,366.25, W.. G. more or less, being 25 per ceht. on the valuation o'ver
    B. and above actual cost, as specified in the invoice herewith produced.
    “ True copy. S. P. R.
    “Nath’l L. & Geo. Griswold.”
    Upon the trial of the cause a bill of exceptions was taken, which it is not deemed advisable to set forth in extenso, because it contained all the invoices, entries, depositions, and circulars from the Secretary of the Treasury, the whole amounting to nearly thirty printed pages, The following summary of the bill will be sufficient.

      Southern District of New York, ss.

    Be it remembered, that on .the 13th day of June, in the year 1850, as yet of the stated term of the said court* commencing on the first Monday of April, in the year 1850,. held at the City Hall, in the city of New York, in the Southern District of New York, before the Hon: Samuel Nelson, Associate Justice of the Supreme Court of the United States, sitting in the said Circuit Court, the issue within contained joined between-the said Nathaniel L. Griswold, George Griswold, George W.Gray, and George Griswold, junior, plaintiffs, and Hugh Maxwell, defendant, came on to be tried, and the said parties, by théir respective attorneys, before the said justice came; and the jurors of the jury in this behalf duly summoned also came; and to say the truth also in this behalf are elected, tried, and sworn.
    • And the counsel for the said plaintiffs, to maintain and prove the said issue in their behalf, produced ^and gave in evidence the invoices, entries, and protests,-in the words and fig- ' ure3 following: —
    (Then followed the invoices, entries, and protests, the entries showing that the appraisers had added to the amount “to make value at time of shipment.’-)
    And proved that said protests were made and delivered to the defendant at and before the payment of the duties on the goods in said invoice and entries contained, and that the. sum of j§ 12,493.50 was paid by-the plaintiffs to the defendants on the 8th day of January, 1850, as duties on the plantain bark named in said foregoing entry thereof, of which amount $> 2,425.50 was duty on the sum of $ 9,702, added with commissions in said entry as therein expresséd, “ to make market. valué of bark”; and on the 15th day of the same month the plaintiffs paid to the defendant the further sum of $ 5f91, as duties on the sugar named in said foregoing entry thereof, of which amount $5 615 was duty on the sum of $ 2,050, added with commissions in said last-mentioned entry as therein expressed, “ to make value at time of shipment.”
    And further to maintain and prove said issue_on their part, the counsel for said plaintiffs called the following witnesses, .who, being severally duly sworn, testified as follows, that is to say: — -
    (Then followed the depositions of several witnesses, showing the purchases at Manilla, and that the prices were the regular market prices at the time of purchase.)
    The plaintiff's counsel, further to maintain and prove said issue on their part, produced and gave in evidence certain circulars of the Secretary of the Treasury, in the words and figures following, viz.: —
    (Then followed a series of circulars from the Secretaries of the Treasury, beginning with the year 1833, and coming down to October, 1849, being nineteen printed pages.)
    The plaintiff’s counsel, further to maintain and prove said issue on their part, called the following witnesses, who, being severally duly sworn, testified as follows.
    A. B. Mead testified that he was assistant appraiser from about the fall of 1846 to the fall of 1849, and during that time had the almost exclusive charge of appraising iron and other metals, “ and that, under the instructions of the Secretary of the Treasury, the examiners and appraisers at the port of New York have in all cases been required, under the provisions of the tariffs of 1842 and 1846, to ascertain, and appraise, and report, the wholesale market values of all merchandise in the principal markets of the country of production or manufacture, at the period of the exportation of the* merchandise to the United States, and not at the period of the purchase or production of the merchandise in the country whence imported, and that such has been the uniform practice up to this time, so far as known to the deponent.”
    G. F. Thompson testified that he was assistant appraiser of the port of New York from 1844 to June, 1848, and that, under the instructions of the Secretary of the Treasury, the examiners and appraisers at the port of New York have in all cases been required, under the provisions of the tariffs of 1842 and 1846, to. ascertain, and appraise, and report, the wholesale market values of all merchandise in the principal markets of the country of production or manufacture, at the period of the exportation of the merchandise to the United States, and not at the period of the purchase or production of the merchandise in the country whence imported, and that such has been the uniform, practice up to this time, so far as known to the deponent.
    SamueLJ. Willis testified that he was one of the principal appraisers at the port of New York from the year 1844 to July, 1849, and that, under the instructions of the Secretary of. the Treasury, the. examiners and appraisers of the port -of New York have in all cases been required, under the provisions of the tariffs of 1842 and 1846, to ascertain- and appraise, and report, the wholesale market values of all merchandise in the principal markets of the country of production or manufacture, at the period of the exportation of the merchandise in the country whence imported, and that such has been the uniform practice up to this time, so far as known to the deponent;
    The counsel for said plaintiffs then rested, and the counsel for said defendant thereupon insisted and prayed the court to' charge and instruct the jury, as matter of law, as follows: —
    1. That the payment made in this case by the plaintiffs .to the defendant was a voluntary, and not a coercive payment; and so that the plaintiffs could not maintain their action ; that thé evidence showed that the collector had been entirely passive in this whole matter, and had done no act, and made no demand, which compelled the plaintiffs to-pay the entire amount, which they did pay upon their own advisement; that the collector merely received the sum tendered to him by the plaintiffs,' and never made the payment a condition precedent to the delivery of the goods, nor threatened to raise the valuation expressed on the face of the invoice ; all that was done was done by the plaintiffs themselves voluntarily, without the least coercion or action on the part of the defendant, and that the verdict should therefore be in his favor.

      2. That the acts done by the collector were all done in obedience, to written instructions made by circulars addressed by the Secretary of the Treasury to the collector (which are set out in schedule Z, annexed to this case), and in compliance with the acts of Congress therein referred to.
    That these instructions had all the authority of law, so far as the collector was concerned, and he could not disobey them. That all the money received by the collector in this case was collected by him in obedience to law, and paid immediately into the Treasury of the United States under a like compulsion, and that the collector could not be made liable to refund any part of this money to the plaintiffs, even although the construction put upon the revenue laws by the Secretary of the Treasury may have been erroneous.
    That the act of Congress approved February 26th, 1845, en-' titled “ An Act explanatory of an Act making appropriations for the civil and diplomatic expenses of government for the year one thousand eight hundred and thirty-nine,” did not apply to this case the defendant being compelled, by laws passed by Congress subsequently to that year, to pay over without delay into the: Treasury of the'United States all moneys received by him as'tíollectóp.arid that by authority of the case of Carey v. Curtiss (reported'in‘the third of Hammond’s Reports, page 236) the defendant cojfld'not be made liable in this, action.
    3. That there was. no error in the proceedings at the customhouse, the valuation there made being the true valuation according to law, and hence this action could not be maintained.
    Whereupon the court then and there charged and instructed the jury, that by law duties were only to be assessed upon the actual market value of the said plantain bark, or hemp, and sugar, at the time of their purchase by the plaintiffs, and not upon such market value at the time of their shipment by them ; and that the payment of duties by the plaintiffs upon the increased amount, being the difference between such market value at the time of shipment and at the time of purchase, was, on the part of the plaintiffs, a -payment by coercion, and having been accompanied with the' protest, the plaintiffs were entitled to a verdict for the sum paid as duties on .such increased amount, with interest thereon from the' date of its payment; that the fact that the defendant, in taking duties upon the market value pf the merchandise at the time of shipment, had acted in obedience to the circular instructions to that effect from the Secretary of the Treasury, did not render' such mode of assessment of duties legal, or preclude the plaintiffs from recovering the excess paid by them above the duties upon the market value of the merchandise at the time of its purchase. And the court further refused to charge or instruct the jury in conformity with the points insisted upon by the- defendant’s counsel, and in conformity with which he had prayed the court to charge and instruct the jury as aforesaid.
    And thb counsel for said defendant then and there excepted ~to-the said charge of the court, and to the refusal of the court to charge the jury i-n conformity with which the said counsel had so prayed the court to charge the jury, as aforesaid.
    And thereupon the jurors of the jury aforesaid found a verdict for the plaintiffs for three thousand two hundred and six dollars and forty-four cents.
    And because the said several matters so offered and given in evidence, and the matters insisted upon by the said defendant, and the decision of the said court, and the charge of the said court, and the said exceptions taken to the same, do not appear by the record of the verdict aforesaid, the said defendant has caused the same to be written on this bill of exceptions, to be annexed to said record, and has prayed the said justice, holding the said court, to set his hand and seal to the same. Whereupon the said, the honorable Samuel Nelson, the associate jus-' tice before whom the said issue was tried, and the said exceptions were taken, has hereto set his hand and seal, this 2d day of January, in the year 1851.
    S. Nelson, jb. s.]

      Upon this bill of exception, the case came up to this court.
    It was argued by Mr. Crittenden (Attorney-General), for the plaintiff in error, and Mr. J. S. McCulloh, for the defendants in error.
    For Mr. Crittenden's argument, see the preceding case of Greely v. Thompson and Forman.

      Mr. Mc Culloh made the following points : —
    I. ' The duties were exacted by coercion and duress, and were not a voluntary payment without condition or reserve.
    II. The right to maintain this action under the act of 26th February, 1845, is not impaired or taken away by laws or circulars of a date prior or subsequent thereto.
    III. The dutiable value of the merchandise was illegally estimated and appraised by the appraisers and collector, at the market prices of the period of shipment, and their'acts, being illegal thereon, are not conclusive on the importer, but are null and void.
    1. The payment was coercive and by duress, and not voluntary and without reserve.
    The sovereignty of-the United States has, as its incident, the power to prohibit imports and lay impost duties, and in the exercise thereof has appointed officers to execute its regulations.
    Boarding officers are to search and seal boxes, &c.- Act of 1799, c. 22, § 97. Masters and mates are fined 11000 for allowing merchandise to be landed without permit and in open day (1799, c. 22, § 27), and merchandise so landed is forfeited (1799,-c. 22, §§ 27, 50).
    The collector and naval officers are to estimate the duties in gross, and indorse the amount on entry (1799, c. 22, § 21, 49), and no permit to land is granted until this amount is paid' (1799, c.- 22, § 62), and a bond for redelivery of the merchandise on demand of the collector is executed according to the act of. 1830, c. 147, § 8 (4 Stat. at Large, 411.)
    The entry, which is 'to be made before the goods are landed (1799, c. 22, §§ 21, 27, &c,), is to be sworn to by. the importer, and on it he has to make the additions, which, by § 8 of the tariff act of 1846, are authorized in the cases of purchased goods; and if the additions are not then made, th'e Secretary of the Treasury refuses to relieve under the act of 1797, March 3d, from any penalty that may be inflicted where the appraisers put up the value (see Circular of Secretary of the Treasury, 11th June, 1849), and in remitting the penalty, only the half of the United States would be returned, if the residue shall have been distributed' among the officers of the customs (Circular, 25th May, 1845).
    The Circular of 6th July, 1847, had expressly directed all appraisements to be based on the market values at time of shipment, instead of the time of purchase, and under this and the subsequent circulars the importers would inevitably have suffered the penalty, had they not raised their invoice-purchase prices to the market values of shipment'.
    Upon suspicion by the collector of intended fraud in stating the value, or otherwise, the importer is liable, after entry, to have the goods seized (Act of 1842, c. 270, § 21, 5 Stat. at Large, 565; 1799, e. 22, §§ 66, 67; Rankin v. Hoyt, 4 Howard, 333); and if the importer succeeds in establishing his good faith, he still cannot recover from the United States the costs expended by him. See 3 Howard, 252, opinion of Justice Story; Shaw v. Woodcock, 7 Barn. & Cres. 73, 84; Irving v. Wilson, 4 T. R. 485; Snowdon v. Davis, 1 Taunt. 358.
    2. The right to maintain this action, under the act of 26th February, 1845, e. 22 (5 Stat. at Large, 729), is not impaired or taken hway by laws and circulars of a date prior or subsequent thereto.
    The power given to the Secretary of the Treasury, under §§ 23, 24 of the tariff act of 1842, to establish “ regulations not inconsistent with the laws of the United States,” to secure just and impartial appraisals of goods, is a special and very guarded power, and is but a repetition of former similar provisions. Act of 1832, c. 227, § 9 (4 Stat. at Large, 592).
    The collector who exacts duties under instructions inconsistent with the law, cannot, plead in defence an act'of a superior, which in itself is null- and void. See Opinions of Attorneys-General, 1015.
    The personal inconvenience of the collector is not to be considered. Tracey v. Swartwout, 10 Peters, 98.
    The act of 1839, March 3d, § 2, was in effect but the reiteration of former provisions of law (1799, c. 22, § 21, 1 Stat. at Large, 644); nor is there any act subsequent to 1839 that overrules the act of February 26th, 1845.
    The second clause or the act of 26th February, 1845, provides for the maintaining of actions'and trials by jury for subsequent extortions, and any enactment to repeal this provision must be wholly repugnant to and inconsistent with it, or the two Laws must, consist together as part of an entire system; and the courts will jealously restrict the construction of laws exempting officers from responsibility for oppression in the exercise of powers which tend to produce fines and penalties (Jones v. Estis, 2 Johns. 379), which derogate from the common law (19 Vin. Abr. 524, § 125; 4 Hill, 76, 92), which derogate from the rights of. property (Smith v. Spooner, 3 Pick. 230), and the illegal exercise of which has always been held to subject officers to recompense the damages arising therefrom. The Mariana Flora, 11 Wheat. 1; Ripley v. Gelston, 9 Johns. 302; Gossly v. Barlow, 1 Anstruther, 23; Bostock v. Saunders, 2 Black. 912.
    It is to be observed that this exaction is made under the general regulations issued by the Secretary of the Treasury, under § 23 of the tariff act of 1842, and not by a special decision, under the twenty-fourth section of said act.
    3; In support of the point that the appraisement on the market value of shipment was illegal, and the acts of the officers based thereon were nullities, the following authorities are relied upon.
    Under the revenue'laws passed prior to 1823, the assessment of merchandise subject to ad valorem duties was based on its “ actual cost, in labor and materials,” and .not on its actual market value. Ninety-five Bales v. United States, 1 Paine’s C. C. 149 ; 1789, c. 5, § 22 (L Stat. at Large, 42); Tappan v. United States, 2 Mason’s C. C. R. 402; 1790, c. 35, § 46 (Ibid. 169); Tappan v. United States, 11 Wheat. 419; 1799, c.22, § 66 (Ibid. 677); Act of 1818, c. 79, § 79 (3 Stat. at Large, 435.)
    By the subsequent laws the assessment was based on the actual wholesale market value of the goods. Acts of 1823, c. 21, §§ 4, 5. 8, 13, 15 (3 Stat. at Large, 732, 733, 734, 735); 1828, c. 55, § 8 (4 Stat. at Large, 273) ; 1830, c. 147, § 4 (Ibid. 410); 1832, c. 227, § 7. (Ibid. 591) ; 1842, c. 270, § 16 (5 Stat. at Large, 503).
    ■ By the acts of 1823, c. 21, §§ 5, 13, 16 (3 Stat. at Large, 733, 735), and 1842, c. 270, §§ 16, 17' (5- Stat.' at Large, 563, 564), the actual wholesale market values, in the chief markets of the country of production,, are to'- be estimated and ascertained at the time of the purchase of the goods, except that, in case the importation is from a country other than that of the original production, then the values are to be-found as of the time of the exportation to the United States; and by the act of 1846, c. 74, § 8 (Pamphlet Laws, 69), the' rules prescribed by then existing laws are reenacted in regard to merchandise subsequently im ported.
    ' The value so to be ascertained is the “ net,” “ prime,” “ wholesale price,” after deduction of discounts, bounties, and drawbacks •; Act of 1823, c. 21, §§ 5, 16-(3 Stat. at Large, 732, 735)-; Act of 1842, c. 270, §.16 (5 Stat. at Large, 563); and after'allowance for “ depreciation”, in the “ foreign moneys ” in which these values are required to be expressed. Act of 1799, c. 22, §§ 36, 61 (1 Stat. at Large, 655, 673); Act of 1789, c. 5, § 13 (1 Stat. at Large, 39); Act of 1801, c. 28, § 2 (2 Stat. at Large, 121).
    The argument of the plaintiffs in error is, that the “ proviso ” of § 16 of the tariff act of 1842 (5 Stat. at Large, 563) overrules or repeals the body, of that section, as to the time of ascertaining the market values. (See Treasury Circular of 6th July,. 1847.)’
    But this view has not been maintained even by the Treasury Department, (see Cir. 9th September, 1846,) and that it is erroneous is evident, because the proviso contemplates an importation from “ a country other than that of production,” whilst the purview of the section refers to an importation “ from the country of original production.”
    The general object of a “proviso” is to qualify or restrain the generality of the “ purview ” of an act. Minis v. United States, 15 Peters, 445. And where the “ proviso ” may operate as a separate and substantive clause in itself, differently from the rest of the enactment, it must be so construed. Rex v. Harris, 4 T. R. 202; Rex v. Robinson, 2 Burr. 799; The Emily & Caroline, 9 Wheaton, 381.
    In Churchill v. Crane, 2 M. & P. 415, it was held that where a general intent is expressed, and then a special intent,, the last is an exception.
    To repeal the “body” of an enactment by the “proviso” requires that it be' wholly repugnant to the “ purview.” 1 Kent Com. 462. The substitution of one enactment for another must be entire and repugnant, in order to repeal by implication. See United States v. Heth, 3 Cranch, 399; Goodenow v. Butterick, 7 Mass. 141. And clauses that are repugnant to a law and the system are held to be null in order to sustain the general provisions. Mendon v. County of Worcester, 10 Pick. 235.
    It has been adjudged 'by'the Circuit Court of the United States for Massachusetts, in the case of Thompson and Forman v. Greely, decided in October, 1850, that by the acts of 1823, c. 21, 5, 8, 13,16, and 1842, c. 270, §. 16, the appraisement of merchandise is to-be made “if .actually bought as of the time of purchase,.and if imported for account of the producer or manufacturer, at the time when manufactured or produced.” So held in Grinnell v. Lawrence, Ct. Ct. U. S. New York.. The estimation and appraisal, .therefore, to be final and conclusive’ on the importer, must have been made in strict compliance with the requirements of law.
    In' Rankin v. Hoyt, 4 How. 327, which, was' a case of suspicion of fraud, the court say that the- appraisers.are a sort of-legal referees under the act of 1830, c. 147, § 8, and are to be presumed, in the absence of evidence to the contrary, to have done their duty. But it is to be observed that the execution of a special power is not final and conclusive, whoever the actor may be, unless the requirements of law be accurately fulfilled.
    The exercise of a delegated discretion cannot exceed the power given (Schell v. Bridgewater Manuf. Co., 24 Pick. 296), although the burden of showing this excess or departure from the trust delegated is thrown on the importer (see Tappan v. United States, 2 Mason, 406, 407 ; 11 Wheaton, 419), the presumption of law being in favor of the validity of acts done until impeached. Rankin v. Hoyt, 4 Howard, 327.
    By an appraisement as of the time of shipment, no other future steps, can remedy the illegality, and the provisions of \ 17 of the tariff act of 1842 (5 S at. at Large, 574) do not make any appraisement final qnd conclusive, unless the merchant neglects or refuses to furnish proof or answer interrogatories, or unless the collector having by writing, notice of the dissatisfaction of the importer, has a merchant appraisement conformably to law. Such steps were taken by the collector in the cases reported in 2 Mason, and 4 Howard, 327.
    The fluctuation of the markets in foreign countries makes the period when the value is estimated a matter of substance, and is of far more importance than the non-compliance with requirements of form alone, which have been adjudged sufficient to destroy the validity of acts, and subject the actors to damages jin suits at law when executing specially delegated powers or summary proceedings, the performance of which must be strictly carried out, because they tend to produce fines and pénames,' to derogate from the common law, and from the rights of property, and to appropriate private property to public use, which, being, contrary to natural right and justice, is only tolerated in cases of necessity, and upon full compensation. Const. U. S., Art. 5 of Amendments; The Mariana Flora, 11 Wheat. 1; Bradshaw v. Rogers, 20 Johns. 103.
    These principles have been recognized in cases of sales under the internal tax laws of the United States, of July 14, 1798 (Parker v. Rule, 9 Cranch, 44; Williams v. Payton’s Lessee, 4 Wheat. 77); —in sales for taxes under State laws (Sharp v. Spear, 4 Hill, 76; Thayer v. Stearns, 1 Pick. 404; Mc Clung v. Ross, 5 Wheat. 116)--in proceedings of courts of limited and summary powers (Thatcher v. Powell et al., 6 Wheat. 119; State v. Merryman, 7 Har. & Johns. 79; Ellicott v. Levy Court, 1 Har. & Johns. 359); — in searching houses by excise officers, under 10 George I. c. 10, §§ 12, 13 (Bostock v. Saunders, 2 Black. 912); — in proceedings by collectors of customs, in seizures under slave-trade acts (Opinions of Attorneys-General, 227) ; — in refusing credits for duties under the Act of 1799, c. 22 (Olney v. Arnold, 3 Dall. 308); — in refusing clearance of vessels without payment of tonnage dues (Ripley v. Gelston, 9 Johns. 202); — in summary powers of masters of vessels in forfeiting seamen’s wages (Cloutman v. Tennison, 1 Sumn, 381); — in proceedings of the Secretary of the Treasury (Opinions of Attorneys-General, 1015); — in proceedings of navy officers' (Gossly v. Barlow, 1 Anstruther, 23);— and in proceedings by officers of the army (Harmony v. Mitchell, tried at Circuit Court of N. Y., Sept. 1850).
    The power of the collector to make appraisements of foreign merchandise is a summary and special power, and it was extended from time to time, to apply to other and additional instances, until finally it was made applicable to all cases.
    It was originally applied to cases of imports without an invoice ; Acts of 1789, c. 5, § 16 (1 Stat. at Large, 41); 1790, c. 35, § ;37 (Ibid. 166); 1799, c. 22, §§ 52, 66 (Ibid 665, 671); to imports suspected to be fraudulent, or invoiced in fraud; Acts of 1789, c. 5, § 22 (1 Stat. at Large, 42); 1790, c. 35, § 66 (Ibid. 175); 1799, c. 22, §§ 66,67 (Ibid. 677); to goods damaged on the voyage of importation; Acts of 1789, c. 5, § 16 (1 Stat. at Large, 41); 1790, c. 35, § 37 (Ibid. 166); 1799, c. 22, § 52 (Ibid. 665).
    These appraisements were made by two merchants, one chosen by the collector, the other by the importer; but after-wards, by the acts of 1818, c.' 79, § 9 (3 Stat. at Large, 435), and 1823, ,c. 21, § 16 (Ibid. 735), the President was to appoint persons who should, “ "whenever directed by the collector,” make the appraisements “ he required.”
    By the acts of 1818, c. 79, § 11 (3 Stat. at Large, 436), and 1823, c. 21, - §§ 13, 12, 15 (Ibid. 734, 735), penalties were imposéd on “ goods suspected to be fraudulently .invoiced, and raised by the appraisers.”
    By the act of 1828, c. 55, § 9 (4 Stat. at Large, 274), ^all goods were directed to be appraised, and by the acts of 1830, c. 147, § 3 (4 Stat. at Large, 409), 1832, c. 227, § 7 (Ibid. 591), 1842, .c. 270, § 16 (5 Stat. at Large, 563), all goods were to be appraised by the collector.
    ■ The power'to review appraisements was, under the act of Í823, c. 21, §§ 18, 19, 21 (3 Stat. at Large, 736), by two merchants acting with the two United States appraisers; under act cf 1818, c. 79, § 9 (3 Stat. at Large, 435), by two United States appraisers and one appointed by the importer; under acts of 1832, c. 227, § 8 (4 Stat at Large, 592), and 1830, c. 147, § 3 (Ibid, 409), by one appraiser appointed by the collector, and one by the importer, who was to make oath as prescribed, &c. Rankin v. Hoyt, 4 How. 337. And under the act of 1842c. 270, § 17, by two merchant appraisers appointed by the collector.
    The act of 1842 thus repeals the provision of 1830 and 1832, by prescribing a different mode of .revision.
    • Giving power to one person expressly to do a thing, excludes all others. Lyon v.. Jerome, 26 Wend. 485. And substituting provisions oif the same subject, is a virtual repeal of the former provisions. United States v. Heth,’ 2- Cranch, 399; Gage v. Currier, 4 Pick. 399; Davis v. Pair burn, 3 How. 636.
    . In addition to these enactments, there are others which answer any argument founded on supposed, necessity to make the time of shipment the period of valuation of the merchandise. The importer must produce a sworn invoice of cost; Act of 1823, c. 21, § 4 (3 Stat. at Large, 731); and must enter by it; Act of 1799, c. 22, § 36 (1 Stat. at Large, 655). The Secretary of the Treasury can “ require testimony ” in such manner as he deems proper; Act of 1823, c. 21, § 18 (3 Stat. at Large, 736); “ can establish rules to secure fair, impartial appraisals ”; Acts. of 1832, c. 227, § 9 (4 Stat. at Large, 592), and 1842, c. 270, § 23 (5 Stat. at Large, 566); can require a bond from the imfiorter, to produce, in a specified time, such proof as the Secreary of the Treasury may demand. Act qf 1830, c. 147, § 8 (4 Stat.' at Large, 411).
    There is therefore no reason, under the. present revenue laws, for turning the power- ef appraisal into an engine of oppressive extortion against American merchants engaged in foreign commerce, whose transactions are open to the world. .
   Mr. Justice WOODBURY

delivered the opinion of the court.

This'case presents two points, similar to what have just been decided in Greely v. Thompson et al. In respect to the first one, which related to the proper time for fixing the value of goods imported from -the country of their growth or manufacture, this court there held it was the time of their procurement when not purchased, and the time of their purchase when they had" been actually purchased abroad, rather than the time of their ‘ exportation or shipment. The goods in this case were valued at the' latter, time, though they had been previously -purchased, and at-a lower price. For the reasons assigned in the other case, the instruction given that this time was wrong, must be considered legal,

Another point decided in Greely v. Thompson et. al., and which is a ground of exception here, was, that though the ..money was collected in obedience to orders from the Treasury Department, which the collector, so far as regards the Department, was bound to follow, yet this did not justify him as to others, or bar a recovery by third persons if not liable in law to pay so high duties. . For the reasons there Assigned, this exception is likewise one which cannot be sustained.

The other points in that case do not arise here, but one does arise which did not exist there, and which we now proceed to examine.

The importer had put in his invoice the price actually paid for the goods, with charges, and proposed to enter them at the value thus fixed. But the collector concluded in that event to have them appraised, and the value would then, by instructions and usage at New York, be ascertained as at the time of the shipment, which was considérably higher, and would probably subject the importer, not only to pay more duties, but to suffer a penalty.

The importer protested against this, but'in order to avoid the penalty, under such a wrong appraisal, adopted the follow-. ing course.

This being a case of purchase of goods abroad; and not procurement, it came clearly within the eighth section of the act of 1846, and therefore the importer, as that act permits, was allowed to- make, and did make, an addition to his invoice, so as to escape the penalty, by means' of the addition, and the payment of the consequent increased duties. (Pamphlet Laws for 1846, p. 69.)

This increase of. duties, thus obtained, the present action is instituted to recover back, they having been paid under protest and unwillingly. The government, however, insist that this excess of duties was caused and paid voluntarily, and hence, though illegal, cannot be recovered back. If they were paid voluntarily, some precedents would seem to countenance the inability to sustain this suit. Elliot v. Swartwout, 10 Peters, 137.

But the gist of the point is, were these increased duties in truth paid voluntarily, in the meaning of. that term as applicable to the present subject? We have already seen, that the importer did not at first propose to enter his goods of such a value as to justify these increased duties. On the contrary, he insisted on entering them at only the price for which he purchased them, with’charges, and thus agreeing with his original invoice, while the collector' virtually insisted on having them appraised at their increased value as at the time of the shipment, such being the usage in.the custom-house at New York,' and such the requirement of the circular of the Secretary of the Treasury, November 24th, 1846, The importer, knowing that-this would subject him to a severe penalty, in order to avoid it, felt compelled to add to his invoice the amount which the price had risen between the purchase and the shipment.

But this addition and consequent payment of the higher duties were so.far from voluntary in him, that he accompanied them with remonstrances against being thus coerced to do the act in order to escape a greater evil, and accompanied the payment with a protest against the legality of the course pursued towards him.

Now, it can hardly be meant in this class of cases, that, to make a payment involuntary, it should be by actual violence, or any physical duress. It suffices, iUthe payment is caused on the one part by an illegal demand, and made on the other part reluctantly and in consequence of that illegality, and without being able to regain possession of his property except by submitting to the payment. (See cases cited hereafter.)

All these requisites existed here. We have already decided, that the demand for such an increased appraisal was illegal. The appraisal itself, as made, was illegal. The raising of .the invoice was thus caused by these illegalities in order to escape a greater burden in the penalty. The payment of the increased duties thus caused was wrongfully imposed on the importer, and was submitted.to merely as a choice of evils.

He was unwilling to pay either the excess of duties or the penalty, and must be considered, therefore, as forced into one or the other by the collector, colore officii, through the invalid and illegal course pursued in having the appraisal made of the value at- the wrong period, however well meant may have been the views of the collector.

The money was thus obtained by a moral duress, not justified by law, and which was not submitted to by the importer,except to regain possession of his property withheld from him. on grounds manifestly wrong. Indeed, it seems sufficient to sustain the action, whether under the act of February -26th, 1845, or under principles of the common law, if the duties exacted were not legal, and were demanded and were paid under protest. 5 Stat. at Large, 727; Clinton v. Strong, 9 Johns. 370; 11 Wheaton; 1 Miller, 536; 1 Bos. & Pul. 139; Irving v. Chitsowdt, 4 D. & E. 485, 553 ; Cowp. 69, 805.

Ail these circumstances existed here, and hence the .judgment below must be 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 Southern District of New York, 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 per centum per annum.