페이지 이미지
PDF
ePub

error.

goods, according to law, by a general and the entire package in which the article may merchant appraiser, and made due demand be, shall be liable to seizure and forfeiture therefor.” That, "notwithstanding said de on conviction thereof before any court of mand for reappraisement, no legal reap competent jurisdiction; but if the appraiserg praisement of said merchandise was ever shall be of opinion that no such fraudulent had.” That the so-called reappraisement intent existed, then the value of such article "was illegally conducted, and was not a shall be added to the entry, and the duties valid reappraisement, according to which du- thereon paid accordingly, and the same shall ties might be assessed, in this: that the gen be delivered to the importer, agent, or con• eral appraiser, George V. Brower, did not act signee. Such forfeiture may, however, be upon his knowledge or judgment of the remitted by the secretary of the treasury on goods, but permitted his judgment and return the production of evidence satisfactory to of value to be controlled and dictated by him that no fraud was intended.” special agents of the treasury; that he did “Sec. 2939. The collector of the port of New not personally examine and appraise the York shall not, under any circumstances, merchandise," nor did the merchant ap. direct to be sent for examination and appraiser; that the general appraiser refused praisement less than one package of every into allow plaintiff to be represented by coun. voice, and one package at least out of every sel, or allow counsel to be present to examine ten packages of merchandise, and a greater the schedules of the different witnesses, to number should he, or the appraiser, or any ask them questions, or to suggest questions | assistant appraiser, deem it necessary. When to be asked, or to hear or know the testi. the secretary of the treasury, however, from mony received; that the appraiser refused to the character and description of the merallow plaintiff and his associate to be pres- chandise, may be of the opinion that the ent at the examination of witnesses, or to examination of a less proportion of packages see the schedules; that the general appraiser will amply protect the revenue, he may, by permitted special agents of the treasury and special regulation, direct a less number of business rivals to attend; that after the pro- packages to be examined." ceedings on the first day the general appraiser called other witnesses and partics

Edwin B. Smith, for plaintiff in error. to estimate the value of the goods, without

Asst. Atty. Gen. Whitney, for defendant in giving plaintiff notice; that in arriving at the valuation returned the appraisers took the average of the valuations of the wit. Mr. Chief Justice FULLER, after stating nesses, without regard to their competency the facts in the foregoing language, delivered or knowledge of the goods; that “witnesses the opinion of the court. were permitted to return schedules of the 1. Certain rulings of the court in respect of value of all the goods without an examina the exclusion of evidence are complained of, tion thereof by them”; that such schedules but we fail to discover any error therein. were considered by the merchant and gen. In reference to the first two importations, eral appraiser,--and some other particulars. plaintiff's manager was asked what he said

Testimony was given as to the difference to the assistant appraiser as to the produc-, between the duties upon the goods as en tion of evidence of the value of the goods, tered and the duties exacted.

and what the conversation was which he had The foregoing was all the evidence ad with the collector about a reappraisal, or a duced in the case, the defendant offering no call for a reappraisal. The objections of the testimony.

district attorney were that the importer's The case was tried before Lacombe, J., remedy for any defect or informality was to and a jury. A verdict was directed in favor call for a reappraisement, and that the proof the collector, and plaintiff brought error test was insufficient. Undoubtedly, the reme to the judgment rendered thereon.

dy of the importer on the question of valuaThe following are sections of the Revised tion simply is to call for a reappraisement, Statutes particularly referred to:

though, if his contention is that a jurisdic“Sec. 2901. The collector shall designate on tional defect exists, he can make his protest, the invoice at least one package of every pointing out the defect, and stand upon it as invoice, and one package at least of every a ground of refusal to pay the increased duten packages of merchandise, and a greater ty. It was not claimed in the protest that number should he or either of the appraisers any reappraisal was called for and refused. deem it necessary, imported into such port, It does not seem to us that what plaintiff's to be opened, examined, and appraised, and agent said to an assistant appraiser, or conshall order the package so designated to the versations had subsequently to the appraise public stores for examination; and if any ment, could be competent, and, even if this package be found by the appraisers to con might be so, there is no explanation in the tain any article not specified in the invoice, record as to what evidence plaintiff sought to and they or a majority of them shall be of elicit. No offer of proof was made, nor did opinion that such article was omitted in the the questions clearly admit of an answer fa. invoice with fraudulent intent on the part of vorable to plaintiff on a matter manifestly the shipper, owner, or agent, the contents of relevant to the issue. Buckstaff v. Russell,

151 0. S. 626, 636, 14 Sup. Ct. 448. No rea perts, importers, merchants, and others, be son was given for the exclusion of the ques. present at the taking of any testimony, and tions, and, as it does not appear that plaintiff cross-examine all witnesses produced, or sug. was deprived of any right by that exclusion, gest questions to the general appraiser. The we cannot hold that error was committed. appraisers ruled that they could not accede

The court excluded a question propounded to this request, but expressed their desire to to the merchant appraiser as to whether or hear the importers in regard to their reapnot be and the genera appraiser did not praisements, and their assurance of appreagree to apply the valuation of one case in ciation of any suggestions the importers each invoice to the entire importation of might make as to asking questions of the which it was a part. This was correct. If witnesses. The presumption in favor of it were obligatory to open and examine all official action sustains this ruling as being in the cases, the evidence was immaterial, for it accordance with the rules and regulations was conceded that all were not opened and established by the secretary of the treasury, examined. If the examination of one case under section 2949 of the Revised Statutes, in each invoice was sufficient, then the ap to secure a just, faithful, and impartial application of the valuation of that case to the praisal of all merchandise imported into the entire importation of which it formed a part United States, and just and proper entries was proper.

of the actual market value or wholesale price The question "whether or not those goods thereof; and this was indeed the fact, as in the several cases were all of the same appears by reference to the general regulacharacter as to value” was also excluded. tions of 1884, and instructions of June 9, As the question covered both the importa 1885, given at length in Auffmordt v. Hed. tions, and the appraisers examined one case den, of each, it was immaterial. If there was a The following quotation from the instrucdifference between the goods in the different tions of 1885 will suffice to explain the reacases of either importation, it is singular that sons for the rule: “The law provides that the invoices are not set forth in the record. the merchant appraiser shall be familiar The inference is a reasonable one that they with the character and value of the goods in showed the goods in each importation to be question, and it is presumed that the general of the same character and value, so that the appraiser will have or will acquire such examination of one case would be sufficient expert knowledge of the goods he is to apfor all. There is nothing to indicate the con praise as to enable him to intelligently pertrary.

form his official duty with a due regard for Some objection is made because the reap the rights of all parties and independently praisers availed themselves of clerical assist of the testimony of interested witnesses. ance to average the appraisements given by The functions of the reappraising board are the different expert witnesses who appeared the same as those of the original appraisers. before them, but the merchant appraiser tes They are themselves to appraise the goods, tified: “It was for guidance simply. The re and not to depend for their information upon port of the appraiser, signed by the witness, the appraisement of so-called experts in the was based upon that computation and the line of goods in question.

Apwitnesses' reports." No exception seems to praisers are authorized to summon witnesses, have been taken in reference to this matter, but there is no authority for the public exprobably for want of legal basis.

amination of such witnesses or their cross2. Plaintiff made the point, in the argument examination by importers or counsel emupon defendant's motion to have a verdict di ployed by such importers. The appraising rected in his favor, that section 2900 of the officers are entitled to all information obRevised Statutes "was unconstitutional in its tainable concerning the foreign market value provisions for fixing or authorizing a twenty of goods under consideration, but such inper cent additional duty." The court ex formation is not public property. It is due pressed the opinion that this point was not to merchants and others called to give such open under plaintiff's protest, and this would information that their statements shall be seem to be so, but the question has been dis taken in the presence of official persons only. posed of on its merits in Passavant v. U. S., It must often occur that persons in posses148 U. S. 214, 13 Sup. Ct. 572.

sion of facts which would be of value to the 3. The contention that the importer has appraisers in determining market values are the right to be present throughout the pro deterred from appearing or testifying by ceedings on the reappraisement, hear or ex the publicity given to reappraisement proamine all the testimony, and cross-examine ceedings." the witnesses, which was passed on in Auft As already stated, plaintiff in the case at mordt v. Hedden, 137 U. S. 310, 11 Sup. Ct. bar was invited by the appraisers to present 103, is renewed in this case.

his views in regard to the reappraisement, The importer appeared at the opening of and to suggest questions to be put to the the reappraisal, and made application that witnesses. He did not avail himself of the be or his associate or his counsel might ex opportunity, but insisted on the right to re amine the various affidavits made by ex main throughout the proceedings, to be in

formed as to all the evidence, and to cross tion and appraisement"; that it thus became examine the witnesses as in open court. the imperative duty of the appraisers to exThis, according to Auffmordt v. Hedden and amine every one of the cases; and that as Passavant v. U. S., could not be conceded. they examined but one out of each invoice, In those cases it was ruled that under the or only two out of the seven, there was a revenue system of the United States the want of examination fatal to the appraise question of the dutiable value of imported ment. On behalf of the government, it is articles is not to be tried before the ap argued that sections 2901 and 2939 were inpraisers, as if it were an issue in a suit in tended for the benefit of the government, a judicial proceeding; that such is not the and not of the importer; but, although that intention of the statutes; that the practice was the primary intention, we are not in. has been to the coutrary from the earliest clined to deny that it might happen where history of the government; and that the pro the collector had given specific direction for visions of the statute in this behalf are open the examination of more than one package to no constitutional objection.

out often, and the importer had relied on As respects taxation and assessment for the direction, the omission to examine the local improvements, such notice and hearing number of packages directed migbt, under as are appropriate to the nature of the case, some circumstances, be availed of by him as and afford the opportunity to assert objec- constituting a want of the examination to tions to the methods pursued or to the which he was entitled. We can suppose a case amount charged, are deemed sufficient for in which the importer might truthfully con. the protection of the individual. Lent v. tend that he did not request the more extenTillson, 140 U. S. 316, 327, 11 Sup. Ct. 825. sive examination because of the direction, and

Duties imposed under tariff laws are paid did not demand the full execution of the di. in order that goods may be brought into the rection because of the rightful assumption country, and provisions in respect of their on his part that it would be so executed, and levy and collection are framed in view of his ignorance that it was not. The objec the character of the transaction. The finali. tion would be exceedingly technical where ty of the appraisal is a condition attending there was nothing to indicate that any injury the importation prescribed by the govern could have ensued, as where there was no ment as essential to the operation of the sys reasonable basis for the claim that one packtem; and, if the importer is afforded such age differed in intrinsic value from another; notice and hearing as enables him to give but, giving it the full force insisted on, it his views and make his contention in re is clear enough that a case in which it would spect of the value of his goods, he cannot be applicable could not arise unless it apcomplain.

peared that the collector had given such di. 4. It is further claimed that the examina. rection. And in that particular this record tion of the goods was not such as to qual

is deficient What the record shows is that ify the merchant appraiser to act; that is, the seven cases “were by the collector orthat he did not examine with sufficient care dered to the public store, and that they were: the cases of goods which he did examine. there at the time of the reappraisement"; It is not denied that he was “a discrete and but it does not affirmatively show that the experienced merchant," but that he was

collector deemed it necessary that all the "familiar with the character and value of cases should be examined, while, as a mat. the goods in question," as prescribed by sec ter of convenience, by having all sent there tion 2930, appears to be questioned on the (and there were but seven), the general apground of carelessness in investigation. His praiser and the merchant appraiser could testimony in chief was not happily expressed, open and examine each case if either of them yet, on cross-examination, it clearly and dis deemed it necessary, or if the importer de tinctly appeared that he examined the goods sired them to do so, or informed them that in one case out of each importation sufficient the packages differed in value. The collector ly to satisfy him that they were the same could have directed all the cases to be opened order of goods that his firm imported. This and examined, or either of the appraisers established the familiarity required by the could have done it; but it would be going statute, and placed his qualifications as an an inadmissible length to hold that the mere expert beyond reasonable doubt. We agree fact that the cases were sent to the public with the circuit court that the verdict of a store necessarily amounted to a specitic dijury, controlled by the theory that such an rection by the collector that all should be expert was not qualified for appraising the examined, and, if all were not (although goods, could not have been sustained.

the appraisers did not deem it necessary, and 5. The stress of the argument is laid, how no demand by the importer to have them all ever, upon the proposition that all the seven sent there for that purpose was shown), that packages were not examined. The argument jurisdiction failed, and the reappraisement is that the collector deemed it necessary, un was illegal. We are of opinion that the cir. der section 2939, that all the cases should be cuit court rightly directed a verdict for tho examined, and therefore directed them all defendant to be sent to the public store "for examina Judgment affirmed

239

[ocr errors]

(155 U. S. 303)

“After the contract for the work has been UNITED STATES ex rel. INTERNATION

prepared, you will be notified to call at this AL CONTRACTING CO. v. LAMONT,

office to sign it. Secretary of the Department of War.

“The regulations require that any instru

ment executed by an incorporated company (December 10, 1894.)

shall be under its corporate seal, and eviNo. 689.

dence should be furnished, also under the MANDAMUS TO OFFICER-CONTRACTS-ESTOPPEL. corporate seal, as to the official character of

1. Mandamus will lie to an officer to do on the person by whom it is executed, and that ly such ministerial duty as existed when ap he is duly authorized to execute the same on plication for mandamus was made, and will not

behalf of the corporation. lie to him to sign a contract in accordance with

“Please furnish this office with the names an advertisement for public work and a bid therefor, where, before the application, the and addresses of your proposed suretles, each work was readvertised, and the same person to justify in the sum of $45,000. made a lower bid, under which he obtained a

“A memorandum is inclosed, containing incontract for the work.

2. Nor in such case will mandamus lie to structions for the preparation of contractors' the officer to furnish evidence that the contract bonds. The execution of the necessary boud, had beep entered into.

however, will be deferred until the articles 3. Where one enters into a contract to do work and receives compensation thereunder,

of agreement hav been completed in every be is estopped to claim that it did not supersede respect. all otber arrangements therefor, though at the

“Very respectfully, G. L. Gillespie, time of making it he claimed that he had rights

“Lt. Col. of Engineers." under a previous contract.

On September 23d the secretary of war In Error to the Court of Appeals of the called on the chief of engineers for the papers District of Columbia.

relating to the matter, and they were submit. lo pursuance of an act of congress making ted to him. On the following day the chief an appropriation for that purpose, an adrer

of engineers sent this telegram to Col. Giltisement appeared August 6, 1892, inviting lespie: proposals for doing certain work in Gowanus

• “Washington, D. C., Sept. 24, 1892. Bay, New York. The work was divided into

“To Colonel G. L. Gillespie, Engineer, Army three parts, as follows: First, for Bay Ridge Buildings, Whitehall Street, New York, N. Chanpel; second, for Red Hook Channel;

Y.: and, third, for Gowanus Creek Channel. The

"Do not proceed further with closing a conadvertisement, moreover, stated the sums of tract with the International Dredging Com. money which were available for the work on

pany for Gowanus work until further in. each separate channel, and it was announced structions. Acknowledge receipt of this. that the work must be commenced on Octo

"Turtle, Engineers.” ber 1, 1892, and be completed on or before On October 7th the acting secretary of war December 31, 1893. In answer to the adver addressed the following letter to the relator: tisement, the relator bid upon the work. His

"October 7, 1892. proposition was to do it all at a uniform rate “Gentlemen: The matter of the contract for of 19.7 of a cert per cubic yard, "scow meas dredging in Gowanus Bay is not yet settled, urement,” and with two dredge boats, one and the action of the department upon the of which would commence work within nine bids received has not yet been determined ty days from the awarding of the contract, upon. It is respectfully suggested that, if and the other within nine months thereafter. you desire to be heard upon the subject, an He also undertook to complete the entire opportunity is offered. Any representation work on or before June 1, 1894. In the event you desire to make, either by writing or oralof an epidemic prevailing in the locality, he ly, by attorney or by any officer of your comreserved the right to cease work until he pany, will be respectfully received and conshould think it prudent to resume. The rela sidered. It is hoped that you will be able to tor's bid was the lowest, and, on September do this by Tuesday-certainly not later than 22d, Lieut. Col. Gillespie, of the engineer Wednesday-of next week. corps, who bad issued the advertisement as “Very respectfully, L. A. Grant, the engineer and officer in charge of the work,

“Acting Secretary of War. and at whose office the bids had been opened, "The International Dredging Company, addressed the relator the following letter: Post Building, 12 to 28 Exchange Place, New

"New York, N. Y., September 22, 1892. York City." “Mr. Joseph Edwards, President of the In The secretary of war acted upon the papers

ternational Contracting Co., 16 Exchange after hearing the relator, who claimed that Place, N. Y. City.

his bid was final and could not be reconsid. “Sir: The proposal of the International ered, and decided that he had the power to Contracting Co., opened in this office Sep refuse to consummate the contract upon the tember 11, 1892, for dredging channels in following grounds: Gowanus Bay, N. Y., 19.7 cents per cubic "First. That said acceptance of the bid of yard, has been accepted by the chief of en the relator was not properly made, and was girteers, U. S. army.

not binding on the government v.15$.C.-7

[ocr errors]

*306

"Second. That said bid, and the bid of the do the work for about two thirds the amount W. H. Beard Dredging Company (hereafter named in said proposal. I see no justificamentioned), which was the next lowest bid, tion for entering into another contract with were irregular and improper, and that neither them or for paying them $100,000 more than should be accepted."

their contract calls for. Accordingly, he ordered the work to be re Very respectfully yours, advertised. The new advertisement appear “[Signed] Daniel S. Lamont, ed on October 26, 1892. It called for propos

“Secretary of War." als which differed from those contemplated Upon this refusal, the relator commenced by the first advertisement in several impor- | proceedings by a mandamus against Secretant particulars: "First, in striking out the tary Lamont in the supreme court of the Disciause referring to the eight-hour law; sec trict of Columbia, to compel him to execute ond, in changing time for the commencement and deliver to the relator the contract for the of the work, requiring it to be commenced on work under the specifications set forth in the April 5, 1893, instead of October 1, 1992; and, first advertisement; and, meeting with an third, by calling for its completion by Au adverse decision, he first took his case to the gust 1, 1894, instead of December 31, 1893. court of appeals of the district, where the Pending this bid, and before any adjudica- judgment below was affirmed, and thence he tion on it, the relator commenced, in the su brought it to this court by writ of error. preme court of the District of Columbia, a suit to compel Mr. Elkins, then incumbent of

A. S. Worthington, W. W. Dudley, and L. the office of secretary of war, to sign a con

T. Michener, for plaintiff in error. Sol. Gen. tract with him for the work as covered by the

Maxwell, for defendant in error. first proposals and specifications, and the bid made thereunder. Before this suit was dis Mr. Justice WHITE, after stating the facts, posed of, the bids under the second adver delivered the opinion of the court. tisement were opened on December 1, 1892, Much was said in argument at bar upon the and it was found that the relator had again question of when a contract is to be regarded bidden for the work, this time offering to do as completed under the circumstances here it for 13.7 cents per cubic yard instead of presented, and the discussion concerning the 19.7 cents per cubic yard, which was his authority of the secretary of war to review original bid. Being again the lowest bidder, the action of an officer of engineers in such a he obtained the contract from the war depart case, and to direct a new adjudication, has ment for the work under the new specifica taken a wide range. We deem the consideration. The mandamus proceeding remained tion of both these points unnecessary, in view pending on the docket of this court, having

of the relator's bids under the second adverbeen brought hither from the supreme court tisement and specifications, and his contract of the District of Columbia. When Mr. Elk to do the work at a less price and under new ins ceased to be secretary of war, October 23, conditions. It is elementary law that man. 1893, upon suggestion by counsel for the damus will only lie to enforce a ministerial relator that the suit had consequently abated, duty, as contradistinguished from a duty it was dismissed. The relator then called which is merely discretionary. This doctrine upon Mr. Elkins' successor, Mr. Lamont, and was clearly and fully set forth by Chief Jusdemanded that he should sign the contract tice Marshall in Marbury V. Madison, 1 awarding the relator the work under the Cranch, 137, and has since been many times first specifications. This demand the secre reasserted by this court. See Kendall V. tary refused to comply with, in the following Stokes, 3 How. 87; Brashear v. Mason, 6 communication:

How. 92; Reeside v. Walker, 11 How. 272; “War Department,

Commissioner v. Whiteley, 4 Wall. 522; U. S. “Washington, D. C., November 14, 1893. v. Seaman, 17 How. 225, 231; U. S. v. Guth. “Gentlemen: I have the honor to acknowl. rie, Id. 284; U. S. v. Commissioner, 5 Wall. edge the receipt of your communication of 563; Gaines v. Thompson, 7 Wall. 317; SecNovember 4, 1893, in which, on behalf of the retary v. McGarrahan, 9 Wall. 298; U. S. v. International Contracting Company, you re Schurz, 102 U. S. 378; Butterworth v. Hoe, quest me, 'as the secretary of the department 112 U. S. 50, 5 Sup. Ct. 25; U. S. v. Black, of war for the time being, to execute and de 128 U. S. 40, 9 Sup. Ct. 12; Commissioners v,

liver to that company a contract conforming Loague, 129 U. S. 493, 9 Sup. Ct. 327; Noble l in all respects to the proposal filed by said v. Railroad Co., 147 U. S. 165, 13 Sup. Ct. 271.

company with Lieutenant Colonel Gillespie The to be enforced by mandamus on the 19th day of September, 1892, and the must not only be merely ministerial, but it acceptance thereof by the secretary of war must be a duty which exists at the time when through the acting chief of engineers.'

the application for the mandamus is made. "Your request is respectfully declined for Thus in the case of Ex parte Rowland, 104 the same reasons that my predecessor de U. S. 604, this court, speaking through Mr. clined to enter into such a contract, and the Chief Justice Waite, said: “It is settled that additional reason that the International Con more cannot be required of a public officer by tracting Company are now under contract to mandamus than the law has made it his duty

« 이전계속 »