360
',',
: FEDERAL REPORTER.
in the but there is no unity of interestin the relief desired..· If, for instance, one of these beneficiaries is' paid, the others/havano interest in and are not prejudiced by that payment; and he hasnodnterest in the 'nlorieywhich is due the' other-beneficiaries. Each oneliiu.i;a separate'interestJil'l' the money which bytrre terms of the policy. is payable to' him or,t6 he11; ,I think, therefore;' under'thepractice which obtains, and the rule laid down under the state. Code, the demurrer wHl'l:iave tObedlustaineck!,:But all the parties plaintiff are in court. The defeildant is iti::oourt.'H;All the causes of action are stated, and the order will so be and I think it is within the,power'of made, after sustaining thateaoh plaintiff may file his or herpetitioh upnnhisorHeica1.l.se of action, andwithout'other process all.swer within 30 days each petition. the defendant will 'be I may addtHiLt in this I11atter,' ,although my Brother THAYER sat with me on theberich, he tooK. no partin. the decision, it; beulg disposed of by myself alone. ', ' t. "
I
(Oircuit Oourt,8.
D.,lVew
York.
December 10,11, 1886.)
1.
CUSTOMS DUTIES-REAPPRAISEMENT-RIGHTS OF IMPORTER.
The hits aright, to,b.e r when the. reapprltisers view his goodB, to'see that they are his good's, 'and to make such statements as ate pertinent to the case. i
2. SAME-POWERS ,OF REAPPRAlIlERS..,.".WITNESSE8.
The reappraisement is an appraisal on view, and the reappraisers have the power to ascertain the value of. merchandise by reasonable ways and means, (Rev. U. S. § to determine what witnesses, if any, it is proper forthetn to examine. ..'
3."'SAME-MERCHANT APPRAISER
The merchant appraiser is not an "officer, ". Within the meanin/t of artiele " : 2, 2"o,f tl;i.6 .constitution of theUpited States. SAME-,])XAOTJ;G.l\' OF FEE. , ," " " '
NOT AN "OFFICEJI,."
,
4.
The.,e'xactiOll by the collector of !Customs, of the importer, of 8 :fee for the compensation of the merchant appraiser, is unauthorized by law.
The ,issue involved in this case was the legality of reappraisement proceedings before the United States general appraiser and merchant appraiser, at the port of New York, on April 8, 1886. ,The plaintiffs, C. A. Auffmordt & Co., imported from Bremen, per the steamer Main, certain manufactures of silk and cotton, which were entered at the customhouse at the ,port of New York 'on March 13, 1886. The value of the merchandisein the invoice was 6,249 francs 50 centimes. After deducting the charges as expressed:iri the invoice, it left the value at 5,977 francs 20 centimes. The plaintiffs,' at the time of making their entry, voluntarily added to the invoice value 1,092 francs 80, centimes, making theenteredvahie of the goods 7,070 francs. The collector of customs New York, upon an examination aq.d appraisal of the
AUFFMORDT
V.
HEDDEN.
361
u
goods,'advanced thevaluatiori!:thereof to the slim of 7,510 francs 10 centimes, and payment of duties was exacted upon the additionalnum440 francs 10 centimes.. No penalty was exacted 'Or paid. \ The'plaintiffs,oll March 22, 1886, gave to the collector notice ofdissatisfaetion with such: appraisement, and requested a reappraisement pursuant to law, (Rev. St. § 2930;) on the receipt of which CollectorHeddtm,the defendant, selected and appointed>James C. McCreery asa appraiser, to be associated with U:nitedStates General Appraiser Brower: tO'examine and appraise the vaIue' of said goods agreeably to the provisions of the statute. . . . Theplaintifl's, at the time they lodged with the collector their -notice the original appraisement of their goods, paid a fee collector, tocoverihe expense' or 'compensation of the merchant appraiser on the reappraisement. Upon the reappraisement the vil:luaition'put llpon the 'godds' on the appraisement was sust!1iiied,andthe' plaintiffsipaid the a:dditional duty on stich valu!1tion, to '_ _' . recdver' whii:!hthis action witS brought. ;1fhe":plliidtiffs protel)ltedagl1inst the. legality and validity of 'the reappriiisement'prbceedings ina:vohuninous protest, claiming, among other the plaintiffs were:excluded from ana. things, were be present, personally or by counsel, nor to, examine or cross.:exttmiile witnesses; that they were prevented'from' e:tamining thewritten statements of the witnesses called for on said reappraisement; that the Jnerchant appraiser was not legally qualified to act in that capacity; also that the appoititm;ent oj the or 1nerchant·appraiser was 'Unlawjnl and voidj that the collector _ no wa'f7'ant had or auihoriiy to appoint him, nor had he anyla;wful qualification or right to act'officially in the premises; that the reappraiSIng officers disregarded their own supposed knowledge, -and that the evidence, and acted upon _ their decision was contrary to: the facts and evidence, and contrary to law; and that said reappraisement was altogether irregular, unlawful, fraudUlent, and void. Plaintiffs also protested against the 'payment or exaction of the sum of $10 to cover the fee of the merchant appraiser. !twas by evidence that the merchant appraiser was selected and appointed 'by' the collector; that the plaintiffs, by their agent, were allowed be present upon the reappraisement to make a full statement concerning the goods and their value, and such explanations and statethe case; that samples oftbegoods were ona ;ments as table before the reappraising board; that the cases of the goods were in an roop1, accessible by an open door; that the pla:intiffsdid not request theooRrd to e:lCamiileany witnesses onthcir behalf, nor to have counsel present; that the plaintiffs were familiar with the usual course of business upon reappraisement proceedings, and knew they would not be ;aUowed' to be present 'to cross-examine nor to read the depositions oithe government witnesses, nor to have coti.nselpresent, nor to remain before the board after making their statements. It was shown that, bra rule in' force, the plaintiffs would not be allowed to be present in the adjoining room where the cases of goods were, during-the inspec-
FEDERAL
tion and]emwipation of the, saJilleby, witnesses, on such reappraisement . ' ..., A the secretary of the treasury to the United States general appraiser at New York city" dltted :June 9, 1885, (Synopsis of Decisions, Treasury Department, Ni>; was read in evidence, and it was claimed by .the plaintiffs t4ereappraising board acted under stress or duress .of this letter, and. of other treasury regulations, and did not exercise, their own. power discretion in making or conducting such under sectiollij,2902, 2930, Rev. St. The plaintiffs' attorneys moved for a direction of a verdict for the of the unconstitutionality of section qf thE} 'T)nited States Statutes, contending that under article2,§2,of the constitutio of t:heUnited States, congress had no power l1 to,vest the appointment of a merchant $ppraiset: in of the port,whp is riot the head ·of a, department; .that the merchant apthe c9nstitution limited tbepower of congress to vest the appointment of sU5lh "officer" to the president or courts of law or: and the J;X1erchant was the proyisions of the civil service act of, (22 U. S. St. at Mrge"403.) .',. " .' <n.ted, Rev, F3t. U. S.,,§§ ,2930,2929, 2614, ,2616".261,8,5501,05451,,5448,2922,1,2949, 2902,2906,2907,2910, 2609,253.8, 2539; St. 1883, Rev. St. §§ 2940) 1415, 2630, St. 1799; Treas. Regs. arts. 472, 473,,466,467; Oonst.;1'. ,S. art, ,.2, § 2; Iselin v. Heddm, 28 Fed. Rep. 416; U.. S. v. Maurice, 2 ..102; ,Robinson v. (lhamberlain, 34 N. Y. 398; PlaUv.l1each, 2·Ben.;316; fl. S. v. Maurice, 2 Brock. 107;' 2 Op. Attys.Gen. 13 Op. 518-521; 2Qp. Attys. Gen. 413; ;4l0p. 162; 8 Mtys.Gen. 41; 2tade-markCases,100 U. S. 98; ,Virgi""udJQupqn S. 304, 5 SlIP. Ct. Rep. 503; Allen Yo, Lowisiana, 103 U. S. ;83; qhampagne 0a8es, 3 Wall. 114. , , Mr. moving for a directior:t of a verdict for dev.Merr,iU, 19 Fed. Rep. 408; Burgess v. Con'VCI"8e,2 C1,1rt. 219; Good8ell v.Briggs, 1 Holmes, 299-302; FaUeck v. Bq,rney,5. Ra,nkirt v. Hoyt, 4 How., Hilton v. Merritt, S.:9r,3 Sup. Ct. Rep. 548; Tucker v. Kane.,tTaney,146; Bangs v. Ma,'CWell, 3 BIatchf. 135; $chma,ir6 v. Ma,xweU, Id.408; Vaccari v. Maz. ld., 368-376; 1'Znaga 1 Cliff. 4QS;U. S. v. Hartwell" 6 Wall. 385. ',. ,::Ihrmai'1l, & Tglre:r.,. for, plaintj.,ffs., BtephenA. A,tty., and Henry O. Platt, Asst. U. S. Atty., 1'Qr,qeftlndant., '" '
nO v.
J., (orally.) This constitutional question, of course, is ,l;think "Qfficer,"/lSit occurs to me now, means one with fiomewhatcolltinuqus in their nature. These merchant appraisers, if I rigl;J.tly co.nstrl}e the la w, are appointed for. each ,case. Th,etheo;ry, of the t,hat t1:le collector appoints a merchant appraiser };DEI. ·
11. HEDDEN.
363
for each occasion; and, if two or three reappraismeJitsare acted upon at the same time, iUs not because the merchant apprlliser holds the office for a day or an hour, or a quarter of an R month; but it is because the same man may be appointed in two or three instances to act on more than one appraisal; and he acts on several at the same time.· I do not think an appointment of a merchant appraisel' for a day, to hear any cases that might come before him, would be good. I don't think that his oath applies for a day or a week. 1 think he should be sworn in every case. The merchant appraiser is a statutory reviewer for each case. He does not hold an office, but just merely holds a dt\iignation for that one thing. That is my present impression. The merchant appraiser is called in ; designated by the collector to act upon a case; to appraise on view. .Their. importance has not been overestimated by the counsel, because there is no appeal from their determination. What they do is final, when they do it regularly. I think I am not called upon now. to say anything more about the constitutionality of this Jaw. I should not feel warranted to say, sitting in this circuit court, that a law was stiiutional which has stood so long, and been challenged in so many ways, but which never was challenged in this way before. As to the other questions raised by the evidence, I entertain the same views thllit I did when· the case of Iselin v. Hedden was tried on ject before me : that it is the right of the importer to be present by himself or his agent. I do not gather the testimony, as given here, that the plaintiffs or their agent understood that they were in any way excluded from their goods, which were in the adjoining room. I understand him to say that when his appraisal was going on he was at perfect liberty to be in the room where the goods were, and point them out to the appraisers, butnot.to the.witnesses.. him that there was a notice on the do'or 'that led into that room that nobody would be allowed in therewhen.t4e witnesses were examilling the ,goods. When his case was up, arid the merchant appraiser and the genera) appraiser Were there, if he had wanted to, he could have gone into the room, and poi l1te(iout ittly of the goods he had a mind to. .H;e was asked to ID:ake :Pis statements, and understood that he had the nght. He didn't qlles.tion but that the samples they had were the right ones. He stayed there as long ashe wanted to, to do anything about pointing out his goods. I think the importer was entttled, to that; to be there when the appraisal was made;· to point out his goods; to know they were his goods; to he,saw fit; and to,;preillustrate them, and exhibit them in any $enttotl)e appraisers, any views he had. , I ijlink.he had that right; but I am not able to say from this evidence that there was anything tending to show that he was denied that right. There is one other point upon which I am notlclear; that is, when this board takes testimony, (and whether they will take' it, at all or not they are to decide for themselves,) whether they are bound to let the importer know thllHhey' are taking it; or,' ifthey letthe importer know they havetalten are boundto'llethim know so answer
364:
. FEDERAL REPORTER.
it. But my,impr.ession is' that that is discretionary with the, board; that they may make' inquiry by what they deem to be proper ways and means; and that the importer must rely upon their fairness and judgment ltstowhattestimony theyido take, and the weight they give to it; that the fact that the importer was not iMormed who the witnesses were, and what they testified to" and· given an opportunity to cross-examine them, and an opportunity to meet 'it, does not constitute a valid objection against'the reappraisement. · I do not think we have competent proof here to be submitted to the jury tending ,to show that the genera!Lappraiser and merchant appraiser weresdhainpered by/instruciionsas to what they were to consider, and theweight;they were to give 'to the ,evidence, and the evidencethey should taketthat, they did, not do what they saw fit about it. I think that the board'bad,ra, perfect right to do what they thought was nt,and nobody elsa'hl'ld:a:ny;right to control them:inimy way. If there was evidence to sbow'that they, were .hampered ,by inst.iuctions in any way, and did not rreelyiexercise theirownjudgnient, I should 'think the impo'rters did not baveagood reappraisement,' ,But every such thing is dllnied. They were SWOrD,' and they met, and: they acted just as they 'sawfitjso far I think as this evidence .; i ' ,On the ,testimony: presented Mte"I see no way but to direct a verdict for the defendant, except as to the $10 paid to the collector as a fee for the merchantappl'aiser. '{thinktne; plaintiffs should have a verdict as to that. Verdi<lt directed accordingly.
",;CE'RTAIN
(District (JOU'l't,N. D. Illinois. March 14, 1887.) CUSTOMS D>UTIl!l,,-FORFEITURE 01' SMUGGLED GOODs-BONA FIDE PURCHASER. In iii J.>roceeding to forfeit goodll!.that have been smuggled into the United
States, If i,1; ilil shown that such goolis were ac!ually /ilm.uggled or brought in in fraud ofthe laws, the government WIll be entItled to a decree of forfeiture under section 12 oft'he ac1i'of congress of June 22,1874, notwithstanding thEl: cIl,I:,imant of such goodspqrchased them in fa,ithand for full ,:alu9/> l,!:,s&ection 16 of said. act. reqqiring the to a jury of tJ;1e distmcttand separate proposItion w:!iether the alleged acts were done wIth an actual jlltentionto defraud the government, and 'requiring, a special finding of the jury as to such fact. only means that the forfeiture cannot be enforced witb,outshowing that the goods were willfully and intentionally imported in fraud of the revenue laws, and has no application to a bona fide purchaser'to whom knowledge of their illicit character was not brought llome. '
W; G.EWing, U. S. Dist.AUy."for the UnitedStates J P. L. Sherman; for defendant. ' >
-:
!
This is a proceeding by information' to forfeitcertaiu diamonds, on.the grounds (1) that they1wereknowinglyand w.illfully
,BLODGE'J:vr, ,J.