US SUPREME COURT DECISIONS

When the government takes no appeal from the action of the board of

appraisers upon an importer's protest, made under the Act of June 10, 1890, c. 407, it is bound by that action, and in case the importer appeals from that action and subsequently abandons his appeal, the government cannot claim to be heard, but it is the duty of the court to affirm the decision of the appraisers.

This case comes here by virtue of a writ of certiorari, issued to the Circuit Court of Appeals for the Second Circuit. It arose out of a conflict of views between the collector and the importers as to the manner of classification and the rate of duty to be imposed upon an importation of tobacco.

The importers had imported through the port of New York a certain amount of leaf tobacco, which was classified for duty by the collector of that port, a portion at 75 cents and another portion at 35 cents per pound, under paragraphs 246 and 247 of Schedule F of the Tariff Act of March 3, 1883, 22 Stat. 488, 503, c. 121. As the decision herein does not turn upon those provisions, they are not set forth.

The importers were dissatisfied with the matter of classification, and with the duties imposed, and therefore, pursuant to section 14 of "An act to simplify the laws in relation to the collection of revenues," approved June 10, 1890, c. 407, 26 Stat. 131, 137, gave notice in writing to the collector, setting chanrobles.com-red

Page 170 U. S. 629

forth therein, by way of protest, distinctly and specifically the reasons for their objections. Section 15 of the same act provides for a further review.

The sections of the act, so far as material, are set forth in the margin. * chanrobles.com-red

Page 170 U. S. 630

The protest made by the importers was a detailed and comprehensive statement, and it was evidently intended to cover all possible objections and claims upon the subject of the proper duties to be collected from and the classification of the tobacco.

The board of appraisers, on the 18th July, 1893, decided the various questions raised by the protest of the importers, and held, among other things, that the bales of tobacco had been properly opened and examined by the appraiser, although only one bale in ten had been examined; that a fair average had been made under section 2901 of the Revised Statutes, and, while the examination might not have furnished a precise description of the goods, the board held there was no reason to suppose that it was not as favorable to the importer as to the government. All the questions were decided against the importer, with the exception that the decision of the board closed as follows:

"In the absence of the merchandise and of any evidence to impugn the returns of the appraiser or to show the character of the tobacco, we find that the returns were correct, and, in accordance therewith, we hold that, in the reliquidation, the lots must be prorated according to such returns -- that is to say, that the proportion of the aggregate weight of the total number of bales examined in a lot, to be dutiable at 75 cents or 35 cents a pound, shall be estimated according to the proportion of the number of bales examined and returned by the appraiser as containing upward of 85 percent

Page 170 U. S. 631

or less of wrapper tobacco. To this extent, the protests are sustained; otherwise, the decisions of the collector are affirmed."

It is now claimed by the government that the direction in regard to the reliquidation, as above quoted, and which was favorable to the importer, was erroneous, and that the result of prorating, as directed in the decision, will be to reduce the amount of the duties to be collected on account of the tobacco.

The importers were dissatisfied with the decision of the board in overruling their protest as to the rate and amount of duty chargeable on the tobacco, and therefore, on August 15, 1893, they applied to the circuit court of the United States, sitting in the City of New York, for a review of the questions of law and fact involved in such decision. The government made no application of any kind, although the order of the board showed upon its face that in respect to prorating it altered the decision of the collector, and to the extent of the alteration, it was favorable to the importers. The circuit court, upon reading and filing the application of the importers, made an order that the board of appraisers should return to that court the record, together with a certified statement of facts in the case and their decision thereon, and, in pursuance of that order, the board made return of the record, etc., and, after such return had been made, the importers filed a petition stating their desire to present further evidence in the matter, and an order was entered that it be referred to General Appraiser Sharpe to take and return to the court such further evidence as might be offered.

The only evidence taken before the general appraiser was

"the entry in this case by the Rotterdam, June 30, 1890, entry number 104,642, and the invoice and other papers accompanying the same or thereto attached, with the exception of the protest."

No further proceedings were taken in the circuit court until the 19th of December, 1895. At that time, the importers had become convinced that they could not succeed upon their appeal, and, as appears from the order of the court when the case came on for hearing and determination before it, they chanrobles.com-red

Page 170 U. S. 632

"conceded in open court that there was no error in said decision of the Board of General Appraisers, and it having been contended on behalf of the collector and Secretary of the Treasury that the said decision of the Board of General Appraisers should be reversed for manifest error therein, and the court having ruled that the collector and Secretary of the Treasury, or either of them, could not be allowed to impeach or in any way object to the said decision of the Board of General Appraisers, because they had not proceeded under the statute to seek a review of such decision of the said Board of General Appraisers; . . . it is ordered, adjudged, and decreed that the decision of the Board of General Appraisers be, and the same is hereby, in all things affirmed."

It appeared in the record that no application, pursuant to section 15 of the act above mentioned, for a review of the decision of the Board of General Appraisers, had been made by the collector or the Secretary of the Treasury.

An appeal having been taken by the government to the United States Circuit Court of Appeals for the Second Circuit from the judgment of the circuit court, the judgment appealed from was in all things affirmed. 74 F.5d 6. Upon the application of the government, a writ of certiorari from this Court was issued, and the case brought here for review.