able doubt. familiarity required by the statute, and placed | versation was. To this the defendant obhis qualifications as an expert beyond reason-jected, because it was not claimed in the protest that any reappraisal was called for and refused. The question was excluded and plaintiff excepted. 8. Under U. S. Rev. Stat. § 2939, it is not necessary that all the cases of an invoice of imported goods should be examined, and, although the collector directed them all to be sent to'the public store for examination and appraisement, it is not the imperative duty of the appraisers to exam [No. 19.] later importations, of February 17th and 23d, The record thus proceeded: "Upon the two per the Oregon and the City of Chicago, reappraisements were called for and had. The Oregon importation consisted of four cases, ine every one of the cases. Argued Oct. 10, 11, 1894. Decided Dec. 3, and the other of three cases, all of which (both 1894. IN ERROR to the Circuit Court of the United States for the Southern District of New York, to review a judgment in favor of the defendant, Edward L. Hedden, Collector, in an action brought by Arthur Origet, plaintiff, to recover an alleged excess of duty exacted upon imported goods. Affirmed. importations) were by the collector ordered to the public store, and were there at the time of the reappraisements." The merchant appraiser was then called as a witness by plaintiff, and testified: "I did not examine one case. I merely looked over the goods. Q. You did not examine any case? A. Not specially; not to appraise it." But he explained on cross-examination that he examined the goods in one case out of each importation sufficiently to satisfy himself that the goods were of the same order as those imported by the firm of which he was a member; that the average of the different valuations of the witnesses was made up in his office by another person at his direction; "that the report of the *appraisal was based upon that computa-[231 tion and the witnesses' reports," and that the general appraiser sat with the witness "in the re Statement by Mr. Chief Justice Fuller: This was an action seasonably brought by Arthur Origet against Edward L. Hedden, then collector of the port of New York, in the Circuit Court of the United States for the Southern District of New York, to recover an alleged excess of duty exacted by the collector upon goods imported by plaintiff on February 8, 9, 17, and 23, 1886 (the last two importations being by steamships Oregon and Chicago, re-appraisal, in the writing up of the reappraisal." spectively) and paid under protest. The invoice and entered value of each of the four importations were raised by the appraisers to an amount exceeding ten per cent thereof, and the collector liquidated and exacted duty upon the value so increased and the additional duty of twenty per cent thereon mentioned in section 2990 of the Revised Statutes. Upon the two entries of the eighth and ninth of February, plaintiff did not call for any reap. praisement, but protested against the assess ment of duty upon any values higher than those declared on the entry, the protest stating that "said valuations are correct, and that said goods are liable to no more duty than would accrue upon said valuations, and that the ditional values were not legally ascertained; that the appraiser made no proper or legal examina230] tion or *appraisement of said goods; that he arbitrarily added to the values upon an arbitrary and assumed basis of the cost thereof; that in so doing he acted under instructions of special agents of the Treasury and not upon his own knowledge or judgment, and we specially protest against the additional duty of 20 per cent, claiming for the reasons aforesaid that it did not accrue and said goods are not dutiable as charged." On the trial plaintiff's New York manager testified that he saw Brown, the assistant appraiser, regarding the appraisal of these importations, and was then asked: "State whether or not you said anything to Mr. Brown (and, if So, what) as to the production of evidence as to the value of these goods?" The question was objected to on the ground that the importer's remedy was to call for a reappraisement. The court thereupon excluded the question and plaintiff excepted. The witness then testified that he had conversed with the collector as to a reappraisal, or a call for reappraisal, of these first two entries, and was asked what the con The following question was then propounded by plaintiff's counsel: "What I ask you is, Mr. Brower being the general appraiser and sitting with you on the reappraisal, was there or not any agreement (and, if any, what) as to the application of the valuation of one case on each invoice to the entire importation?" This was objected to, the question excluded, and plaintiff excepted. The witness also testified that the general appraiser in examining the goods "simply passed and looked at them to see that they were woolens-he was not competent to judge of their value-to see that they corresponded with the invoices." He further said that the general appraiser generally went with him in examining the goods, but what he did when witness was not present he did not know; that after the computations were made, the general appraiser and himself had a joint session, in which they made up their reports. Plaintiff's manager was asked in reference to the goods reappraised: "State whether or not those goods in the several cases were all of the same character as to value?" The witness testified to the presence of a Treasury agent at the reappraisement, and was asked: "Did you hear any of the questions put to the witness?" The witness was also asked if the Treasury agent did not himself put questions to him on that examination. These questions were severally objected to as immaterial and were excluded by the court, and plaintiff excepted, but only the exception to the first was argued. When the reappraisement was about to take place, plaintiff's counsel, Mr. Clarke, was present and made application to the appraisers "to be present to examine the schedules of the different witnesses, to ask them questions, or to suggest questions to you to be asked them, and hear and know the testimony which you have or may receive," and, that if this request be de Testimony was given as to the difference between the duties upon the goods as entered and the duties exacted. nied, that plaintiff and his associate in business | gard to their competency or knowledge of the "be present when the witnesses are examined goods; that "witnesses were permitted to rein the case of Origet, and that one of them be turn schedules of the value of all the goods allowed to see the schedules of the witnesses." without an examination thereof by them;" 232] *To which the general and merchant ap- that such schedules were considered by the praisers responded that they denied the applica- merchant and general appraiser; and some tion of the attorney to be present, but desired to other particulars. hear the importers in regard to their reappraisements, and that they would be glad to have any suggestions that they might have to make as to asking questions of witnesses. The foregoing was all the evidence adduced The record then gives the following state-in the case, the defendant offering no testiment by the general appraiser: "Mr. Clarke further asks that they may be permitted to examine the various affidavits made by the experts, importers, merchants, and others, and also to be present at the taking of any testimony herein, and to cross-examine all such witnesses as may be produced here on this reappraisement, or to suggest questions to the general appraiser. "The general appraiser and the merchant appraiser say, in regard to that, they cannot permit the importers to be present during the taking of the testimony or the examination of the affidavits, but they will be glad to receive suggestions from the importers in asking any questions of any and all who may be called." The request was then renewed so that plain- | tiff might "be enabled to suggest questions," and disposed of by the same ruling. mony. The case was tried before Lacombe, J., and a jury. A verdict was directed in favor of the collector, and plaintiff brought error to the judgment rendered thereon. The following are sections of the Revised Statutes particularly referred to: "SEC. 2901. The collector shall designate on the invoice at least one package of every invoice, and one package at least of every ten packages of merchandise, and a greater number should he or either of the appraisers deem it necessary, imported into such port, to be opened, examined, and appraised, and shall order the package so designated to the publicstores for examination; and if any package be found by the appraisers to contain any article not specified in the invoice, and *they or a majority of [234 them shall be of opinion that such article was Plaintiff protested against the assessment omitted in the invoice with fraudulent intent on and exaction of duties upon the values ascer- the part of the shipper, owner, or agent, the contained by the reappraisements upon the tents of the entire package in which the article grounds: That the goods were "liable to no may be, shall be liable to seizure and forfeiture greater amount of duty than that accruing on conviction thereof before any court of comupon the invoice or entered value thereof," petent jurisdiction; but if the appraisers shall that the appraiser's return "was made con- be of opinion that no such fraudulent intent extrary to law and without legal or proper existed, then the value of such article shall be added amination of the goods;" that plaintiff "was to the entry, and the duties thereon paid acentitled to a reappraisement of said goods, accordingly, and the same shall be delivered to cording to law, by a general and merchant the importer, agent, or consignee. Such for. appraiser, and made due demand therefor;" feiture may, however, be remitted by the Secthat notwithstanding said demand for reapretary of the Treasury on the production of praisement, no legal reappraisement of said evidence satisfactory to him that no fraud was merchandise was ever had;" that the so-called intended.” reappraisement "was illegally conducted and "SEC. 2939. The collector of the port of was not a valid reappraisement, according to New York shall not, under any circumstances, which duties might be assessed, in this, that direct to be sent for examination and appraisethe general appraiser, George V. Brower, did not ment less than one package of every invoice, act upon his knowledge or judgment of the and one package at least out of every ten packgoods, but permitted his judgment and return ages of merchandise, and a greater number 233]of value to be controlled and *dictated by should he, or the appraiser, or any assistant special agents of the Treasury; that he did not appraiser, deem it necessary. When the Secpersonally examine and appraise the merchan-retary of the Treasury, however, from the dise," nor did the merchant appraiser; that the general appraiser refused to allow plaintiff to be represented by counsel or allow counsel to to be present to examine the schedules of the different witnesses, to ask them questions, or to suggest questions to be asked, or to hear or know the testimony received; that the appraiser refused to allow plaintiff and his associate to be present at the examination of witnesses, or to see the schedules; that the general appraiser permitted special agents of the Treasury and business rivals to attend; that after the proceedings on the first day the general appraiser called other witnesses and parties to estimate the value of the goods without giving plaintiff notice; that in arriving at the valuation returned, the appraisers took the average of the valuations of the witnesses without re character and description of the merchandise, may be of the opinion that the examination of a less proportion of packages will amply protect the revenue, he may by special regula tion, direct a less number of packages to be examined." Mr. Edwin B. Smith for plaintiff in error. Mr. Edward B. Whitney, Assistant Atty. Gen., for defendant in error. Mr. Chief Justice Fuller delivered the opinion of the court: 1. Certain rulings of the court in respect of the exclusion of evidence are complained of, but we fail to discover any error therein. In reference to the first two importations, 3. The contention that the importer has the right to be present throughout the proceedings on the reappraisement; hear or examine all the testimony; and cross-examine the witnesses, which was passed on in Auffmordt v. Hedden, 137 U. S. 310 [34: 674], is renewed in this case. plaintiff's manager was asked what he said to rected in his favor, that section 2900 of the the assistant appraiser as to the production of Revised Statutes "was unconstitutional in its evidence of the value of the goods, and what the provisions for fixing or authorizing a twenty 235*conversation was which he had with the per cent additional duty." The court excollector about a reappraisal or a call for a re-pressed the opinion that this point was not appraisal. The objections of the district attor- open under plaintiff's protest and this would ney were that the importer's remedy for any seem to be so, but the question has been disdefect or informality was to call for a reap- posed of on its merits in Passavant v. Unteid praisement, and that the protest was insuffi-States, 148 U. S. 214 [37: 426]. cient. Undoubtedly the remedy of the importer on the question of valuation simply is to call for a reappraisement, though if his contention is that a jurisdictional defect exists, be can make his protest, pointing out the defect, and stand upon it as the ground of refusal to pay the increased duty. It was not claimed in the protest that any reappraisal was called The importer appeared at the opening of the for and refused. It does not seem to us that reappraisal and made application that he or what plaintiff's agent said to an assistant ap- his associate, or his counsel, might examine praiser, or conversations had subsequently to the various affidavits made by experts, importthe appraisement, could be competent, and, ers, merchants, and others; be present at the even if this might be so, there is no explana- taking of any testimony, and cross-examine all tion in the record as to what evidence plaintiff witnesses produced, or suggest questions to the sought to elicit. No offer of proof was made, general appraiser. The appraisers ruled that nor did the questions clearly admit of an an- they could not accede to this request, but exswer favorable to plaintiff on a matter mani-pressed their desire to hear the importers in festly relevant to the issue. Buckstaff v. Rus- regard to their reappraisements, and their assell, 151 U. S. 626, 636 [38: 292, 296]. No surance of appreciation of any suggestions the reason was given for the exclusion of the importers might make as to asking questions questions, and as it does not appear that plain- of the witnesses. The presumption in favor tiff was deprived of any right by that exclu- of official action sustaius this ruling as being in sion, we cannot hold that error was com- accordance with the rules and regulations estabmitted. lished by the Secretary of the Treasury.[237 under section 2949 of the Revised Statutes, to secure a just, faithful, and impartial appraisal of all merchandise imported into the United States, and just and proper entries of the actual market value or wholesale price thereof; and this was indeed the fact, as appears by reference to the general regulations of 1884 and instructions of June 9, 1885, given at length in Auffmordt v. Hedden. The court excluded a question propounded to the merchant appraiser as to whether or not he and the general appraiser did not agree to apply the valuation of one case in each invoice to the entire importation of which it was part. This was correct. If it were obligatory to open and examine all the cases, the evidence was immaterial, for it was conceded that all were not opened and examined. If the examination of one case in each invoice was suffi cient, then the application of the valuation of that case to the entire importation of which it formed a part was proper. The question "whether or not those goods in the several cases were all of the same character as to value," was also excluded. As the question covered both the importations, and the appraisers examined one case of each it was immaterial. If there was a difference between the goods in the different cases of either importation, it is singular that the invoices are 236) *not set forth in the record. The inference is a reasonable one that they showed the goods in each importation to be of the same character and value, so that the examination of one case would be sufficient for all. There is nothing to indicate the contrary. The following quotation from the instructions of 1885 will suffice to explain the reasons for the rule: "The law provides that the merchant appraiser shall be familiar with the character and value of the goods in question, and it is presumed that the general appraiser will bave or will acquire such expert knowledge of the goods he is to appraise as to enable him to intelligently perform his official duty with a due regard for the rights of all parties and independently of the testimony of interested witnesses. The functions of the reappraising board are the same as those of the original appraisers. They are themselves to appraise the goods, and not to depend for their information upon the appraisement of so-called experts in the line of goods in question. praisers are authorized to summon witnesses, Some objection is made because the reap- but there is no authority for the public exampraisers availed themselves of clerical assist-ination of such witnesses or their cross-examance to average the appraisements given by the different expert witnesses who appeared before them, but the merchant appraiser testified "it was for guidance simply. The report of the appraiser, signed by the witness, was based upon that computation and the witnesses' reports." No exception seems to have been taken in reference to this matter, probably for want of legal basis. 2. Plaintiff made the point in the argument upon defendant's motion to have a verdict di Ap ination by importers or counsel employed by such importers. The appraising officers are entitled to all information obtainable concerning the foreign market value of goods under consideration, but such information is not public property. It is due to merchants and others called to give such information that their statements shall be taken in the presence of official persons only. It must often occur that persons in possession of facts which would be of value to the appraisers in determining market values are deterred from appearing or testify ing by the publicity given to reappraisement proceedings.' " packages were not examined. The argument is that the collector deemed it necessary under section 2939 that all the cases should be exAs already stated, plaintiff in the case at bar amined, and, therefore, directed them all to be was invited by the appraisers to present his sent to the public store "for examination and views in regard to the reappraisement and to appraisement;" that it thus became the impersuggest questions to be put to the witnesses. ative duty of the appraisers to examine every He did not avail himself of the opportunity, but one of the cases; and that as they examined insisted on the right to remain throughout the but one out of each invoice, or only two out 238]proceedings, to be informed as to all the of the seven, there was a want of examination evidence, and to cross-examine the witnesses as fatal to the appraisement. On behalf of the in open court. This, according to Auffmondt government it is argued that sections 2901 and v. Hedden and Passavant v. United States, 2939 were intended for the benefit of the govcould not be conceded. In those cases it was ernment and not of the importer; but although ruled that under the revenue system of the that was the primary intention, we are not inUnited States the question of the dutiable clined to deny that it might happen where the value of imported articles is not to be tried be collector had given specific direction for the fore the appraisers, as if it were an issue in a examination of more than one package out of suit in a judicial proceeding; that such is not ten, and the importer had relied on the directhe intention of the statutes; that the practice tion, the omission to examine the number of has been to the contrary from the earliest his-packages directed might under some circumtory of the government, and that the provisions | stances be availed of by him as constituting a of the statute in this behalf are open to no want of the examination to which he was enconstitutional objection. As respects taxation and assessment for local improvements, such notice and hearing as are appropriate to the nature of the case and afford the opportunity to assert objections to the methods pursued or to the amount charged, are deemed sufficient to protect the individual. Lent v. Tillson, 140 U. S. 316, 327 [35: 419, 425]. Duties imposed under tariff laws are paid in order that goods may be brought into the country, and provisions in respect of their levy and collection are framed in view of the character of the transaction. The finality of the appraisal is a condition attending the importation prescribed by the government as essential to the operation of the system, and if the importer is afforded such notice and hearing as enables him to give his views and make his contention in respect of the value of his goods, he cannot complain. titled. We can suppose a case in which the importer might truthfully contend that he did not request the more extensive examination because of the direction, and did not demand the full execution of the direction because of the rightful assumption on his part that it would be so executed, and his ignorance that it was not. The objection would be exceedingly technical where there was nothing to indicate that any injury could have ensued, as where there was no reasonable basis for the claim that one package differed in intrinsic value from another; but giving it the full force insisted on, it is clear enough that a case in which it would be applicable could not arise unless it appeared that the collector had given such direction. And in that particular this record is deficient. What the record shows is that the seven cases "were by the collector ordered to the public *store, and that they [240 were there at the time of the appraisements:" but 4. It is further claimed that the examination it does not affirmatively show that the collector of the goods was not such as to qualify the deemed it necessary that all the cases should merchant appraiser to act, that is, that he did be examined, while, as a matter of convennot examine with sufficient care the cases of ience, by having all sent there (and there were goods which he did examine. It is not denied but seven) the general appraiser and the merthat he was a "discreet and experienced mer- chant appraiser could open and examine each chant," but that he was "familiar with the case if either of them deemed it necessary, or character and value of the goods in question," if the importer desired them to do so, or inas prescribed by section 2930, appears to be formed them that the packages differed in questioned on the ground of carelessness in in-value. The collector could have directed all vestigation. His testimony-in-chief was not happily expressed; yet, on cross-examination, it clearly and distinctly appeared that he examined the goods in one case of each importation sufficiently to satisfy him that they were the same order of goods that his firm imported. This 239] *established the familiarity required by the statute, and placed his qualifications as an expert beyond reasonable doubt. We agree with the circuit court that the verdict of a jury, controlled by the theory that such an expert was not qualified for appraising the goods, could not have been sustained. 5. The stress of the argument is laid, how. ever, upon the proposition that all the seven 134 the cases to be opened and examined, or either of the appraisers could have done it; but it would be going an inadmissible length to hold that the mere fact that the cases were sent to the public store necessarily amounted to a specific direction by the collector that all should be examined, and if all were not (although the appraisers did not deem it necessary and no demand by the importer to have them all sent there for that purpose was shown) that jurisdiction failed and the reappraisement was illegal. We are of opinion that the circuit court rightly directed a verdict for the defendant. Judgment affirmed. 155 U. S. FREDERICK W. MUSER, ET AL., Plffs. in | made in their St. Gall establishment by designers employed by them. The goods when stitched were returned to the warehouse, and Err., 0. DANIEL MAGONE, Collector of the Port having been examined by plaintiffs' employes to see if they were properly done, were sent out again to a bleacher to be bleached. When bleached they were brought back, re-examined, market, ticketed, boxed and shipped. To cut into strips of suitable size for the American rented a building, employed a staff of assiscarry on this business in St. Gall, plaintiffs tants, paid insurance, and kept a certain amount of capital invested. Finished embroideries were not kept in stock for sale at St. Gall in 1887, the date of these importations. The goods were usually ordered from samples submitted by the manufacturers or by so-called commissionaires. The commissionaires, as a rule, submitted samples to the purchasers, bought the cloth, and turned it over to the manufacturer to make up. Their 2. Where the conclusion of the appraisers of imported goods was that the market value could be ascertained to their satisfaction, such deter-charge for their own services, according to mination is binding. 3. Section 9 of the Tariff Act of March 3, 1883 applies to cases where goods are made abroad but are sold only in this country, and not to goods purchased abroad at an ascertainable expenditure. 4. The exclusion of merely cumulative or imma terial testimony which does not injure the party, is not ground of error. 5. The presumption is that a sworn officer, acting in the discharge of his duty, upon a subject over which jurisdiction is given him, has acted rightly. 6. The decision of the general appraiser when approved by the collector, as to the dutiable value of imported goods, is final, if they acted without fraud and within the powers conferred on them by statute. [No. 37.] Argued Oct. 25, 1894. Decided Dec. 3, 1894. IN ERROR to the Circuit Court of the United States for the Southern District of New New York, to review a judgment in favor of the defendant, Daniel Magone, Collector, in an action brought by Frederick W. Muser et al., to recover duties alleged to have been illegally exacted on imported goods. Affirmed. See same case below, 41 Fed. Rep. 879. Statement by Mr. Chief Justice Fuller: 241] *This was an action brought by Frederick W. Muser, Richard Muser, and Curt Muser, composing the firm of Muser Brothers, against the collector of the port of New York, to recover duties alleged to have been illegally exacted of them on certain importations of cotton embroideries, manufactured at St. Gall, Switzerland, where they had a branch house. Their course of business there was as follows: The cloth on which the embroideries were stitched was purchased in the gray state by plaintiffs at Manchester, and received in their warehouse in St. Gall. It was then sent out to various parties at St. Gall who had stitching machines, and stitched according to patterns or designs furnished by plaintiffs, which designs had either been purchased by them in Paris or NOTE.-A8 to lien of United States for duties, see note to United States v. 350 Chests of Tea, 6: 702. plaintiffs, was three per cent, besides all expenses. According to other testimony, the commissionaire would require an advance of the necessary capital to do the trade with, and also all the cash discounts, amounting to another three per cent. If he were asked to employ his own capital and make his own [242 designs, his charge would vary; it might be less than ten per cent, or it might be more, but ten per cent would not be any more than a fair profit. It was within the knowledge of one of the merchant appraisers that one of the largest manufacturers in St. Gall was coming to New York to do business for ten per cent profit. Plaintiffs' goods were invoiced at their actual gross cost, omitting any cash discount; any charge for designing; any interest and risk on capital; any allowance for salaries or other office expenses at St. Gall. They added three per cent, to the invoice price "to mak market value," but they claimed upon the trial that this addition was not voluntary, but was made to avoid the advance of duty provided by statute in cases where the appraised value exceeds the entered value by ten per cent. This three per cent was not more than enough to cover the expense of designing alone, and interest and risk on capital was sometimes itself rated at eight per cent. In It appeared that for many years prior to 1887, St. Gall embroideries had been appraised in the same way as in that year, but, the question of undervaluation being raised, they had been advanced from ten to forty per cent. the fall of 1885, the Treasury Department appointed a commission to investigate the matter, which met at the public stores in New York city. Merchants interested in the cotton embroidery trade also had a meeting, arrived at certain recommendations, and appointed a committee to present them to the commission and see them carried out. A member of Muser Brothers was one of this committee. The conviction was expressed in the resolutions of the meeting that the counting of the stitches was "the only proper way for arriving at a correct valuation of cotton embroideries, Oriental and Egyptian laces;" and "that it be recom As to action to recover back duties paid under pro-mended that the appraiser, in appraising cottest: protest, how made and its effect, see note to Greely v. Thompson, 13: 397, ton embroideries, Oriental and Egyptian laces, should appraise them by counting the stitches |