788

," ,0"",

FtiI>EML

',_/:>;" ," ,", "

vol.Sh.

.,

more than SIX months after the entry of the decree appealed from (section 11 of act of 1&91.) theappeai to be dismissed, it is ,SO, orderl'ld. .

in

1.

1'6

P

VANT

et ale

(CircuU Court, S. D. New York. May 18, 1892.)
BOARD OJ!' ApPRAISERS-VALUATION-REVIEW llT CIRCUIT COURT-PRACTICE.

2.

SAME.

pel cent. above the value declared in the importer's entry, and the additional dutoies prOVided for in sectio11; 7,Ofthe same act thereupon accruedaJ\d were exacted by the collector, no appeal from or review of the decision of the collector in assessing such additional 411ties, for under sl!id act, , '
' ,

§ 13, on reappraisement appraised the value of imported merchandise more than 10

Where a board of three general appraisers, acting under Act Congo June 10, 1890,

.,!Y,."

"

"

.

Whether or not any relief can be 'secured by an importer where there has been fundamental error in fixing the value, none is to be found under the act of June 10, 1890, by appeal or reviewihthe circuit c o u r t . ' , ' An appeal to Of rev(ew"by the clt'c1iit conrt uuder 15 of said act I's restricted to questions of law and fact involved in the decisions of the appraisers re.. "IlPl;lCt,{llg the classifl,cation of m,erchl1ndlse and the duty imposed thereon . ""tinder such classification,' ,.,. ., , , ' , ' '

Motion todjsmiss appeal f()r want of jurisdiction.
I

,I' , : ., " )

Grant-

therebf was advanced"by the appraisedo an amount exceeding by more
than 10 per cent. the value of the same as declared by the importers upon entry. Objection was made by the importers, and a reappraiseby oneof thegeneralappraisers, and' on further objectionof:theimporters the matter- was sent t<> the board oftbree genera,l appraisers, under the provisions of section 13 of the customs administrative of June 10,1890, who examined and decided the case thus submitted, dtldsustaihed the increased valuation ()fthe merchandise. The collector ()f toe port of New Yotk thereupon levied and assess.ed duty thereon at 50 percent. ad valdrem under paragraph 458 of the tariff act of October I, 1890, and also, in addition thereto, (by reason of the tion,) a fnrtherstlm equal to2 per cent. of the total appraised value for each tper cent. that such nppraised value exceeded the value declared in the entry, under and by Virtue of the provisions of section 7 of the customs administrative 'act of June 10, The importers served a prot'est upon the collector agaillsthis assesstnent of duty for all excess above 50 per cent., and up()n any greater value than the entered value, claiDJ.ing that no legal reappraisement had been made in accordance with the act ofJune 10, 1890ithatthe boatd of appraisers had declined to receive or entertain evidence offered by the importer as to the true market value of the goodsi determihedthe case upon values given by special agents of the treasurYitook afid acted upon evidence of persons not ex. perts, who had no personal knowledge oithe value of gloves in the markets

,JiOnan importation 'of leatherg!oves by Passavant& Co, the value

IN RE PAl!BAVANT.

789

of France; gave the importers no opportunity to 'controvert evidence aga.inst them; that in all respects the action of the board was illegal; that the original invoice was correct; and that duties should not be assessed upon any greater amount, or at any different rate, than as appeared upon the invoice and entry. The collector transmitted the protest and papers to the board of general appraisers, who decided that the decision of the board as to valuation was final and conclusive (under section 13, Act June 10, 1890) as to the dutiable value of such merchandise, and that such decision cannot be impeached at all by protest before the collector importers appealed from this decision or the courts. G. A. 899. to the United States circuit court, under section 15 of said act, and the board filed their return in the court on March 2, 1892. Assistant United States Attorney Henry C. Platt moved, upon the recprd, todispliss the appeal.for want of jurisdiction, upon the following grounds:·· .(1) The protest makes no objection that the gloves were wrongfully classified by the collector. Their rightful rate of duty as gloves was at 50 per cent., under paragraph 458, Act October 1, 1890. (2) The gist of the objection is tbat the collector levied certain additional duties thereon, under section 7 of the act of June 1'0, 1890. which rate and amount was in excess of the rate and amount (50 per cent.) requirel:l by law to be paid under the tariff act of October 1, 1890... (3) The act otJune 10, 11590, itself (section 7) imposes this additional duty. The collector can exercise no judgment or discretion about it. (4) This additional duty is imposed by law under the administrative act bvreason of increased valuation, and not under the tariff act by reason classification. (5.) The importers exhausted their remedy on reappraisement, under section 13 ofthe act MJune 10. 1890. The decision of the reappraising board is there made final and conclusive as to the dutiable value of merchandise against all parties interested therein. No further appeal is provided for. as to valuation under that act. (6) The ap·peal to or review by the United States circuit court, under section 15 of act of June 10, 1890, is confined and restricted to "the law and the facts respecting the classification of merchandise, and the rate of duty imposed thereon under such classification." Ex parte Fassett, 12 Sup. Ct. Rep. 295-298; In re Douillet, (WALLACE. J., Feb. 17,1892. unreported.) (7) If there should be fraud or serious legal error in reappraisement proceedings, there might be some legal remedy for the aggrieved party, but no remedy therefor exists by appeal to the United States circuit court in proceedings under the act of June 10, 1890. (8) The want of jurisdiction is patent on an examination of the record, and the court is justified, in advance of the trial on the merits, in acting upon the motion to dismiss. Semple v. Hagar, 4 Wall. 431; Clark v. Hancock, .94U. S. 493. Edward MitcheU, U. S. Atty., and Henry a. Platt, Asst. U. S. Atty., for the motion. Stephen G. Olarke, opposed. LACOMBE, CirCUit Judge. The object of this proceeding is plainly to review the decision of the appraisers as to value. Whether or not any

8ftel'fIa -W'ltebUred byeh importer wbetethere has been fonl1amerital errol' $i:t:;6illog;the\1alue, it dues not'lieern to be, provided fOl ualler the adminiBtta.U fe' 'Motion to diBIriiss granted.

&: r.n.Co. dal.". WJr.STRl,m

,<VtreuU . , "

BTA'I'l'T1tS' ,

ALABAMA d

,

ai.

qfAPPeaZt,JW'CWcuc&' .TUlle

"Nq.89. ' " '

,OJ'FEDBIUL

e. 1892.)

, :,TlIe circuit ciOUrt batino jurisdiction of a blllin equity to inIbject the property of , an corporation \0 the l!ay,D).entof, a siJ;llple contract debt In advance of re-

, covery of a Judgment at auchdebt Is unsecured by lien or lDortl\'age. t.bougha ',tatestatut.e Imthon&el the bringing 'of luch luit by any three credi.wra of oorpol'at1pp,;

Judge.

Court of U,nited States for the Westem ofOeOJ,'gia. Western, Railwl,ly Company of Alabama and others against. the: & Florida Railroad Company and others. A the jurispictionW8iJ ovenuled, and defendant railroad company Reversed. ' .' (Th08.J.S¢rrvmu, of counsel,) for appellant. , McCQroucx, .Circ,*· J udges,and LoCKE, District Division

.

01 Ule SQuthern

the

Ju(1ge. The appellees, corporations, respectively, of the .0f,Alauama, New Jersey, brought this suit in the Swtes circuit court tb.esouthern district of Georgia corporation, and the Central against the apllfllant railrqad, Trust COplpany New Yor!t, a New york corporation, on three separate simple contract deLtsn,ot $t:!curedby a lien or or put in jUdg"lellt at law,. held by the appellee!!. respectively. Thf'Y charged that the appeUnnt railroad\fas inso}veIlt, and was aLout to put out an issue of second .'mortgage bonds for purposes and on a scheme that would work an injurY,to the III as unsecured creditors, and they asked for the appointment of a receiver and lor an injunctioll. The Lill was IJresented to one of the judges of the circuit c.ourt ior the southern district of Georgia, the appeUnnt's plea to the who, a'lter notice to the parties and jurisdiction of.the court,and proof9ffereJ, held that the court had jurisdiction, and appointed a r{!ceiver, and granted a preliminary injunction as prayed for in the bill, from which oruer t11is appeal is taken, nnder section 7 of the act creating this court. The bill alleges that the Atlanta & FloricJa RI.l.U.rqud Company at the time the bill was aeutt:u, a reshlllnt u!'the lIuutheru of Geurgia, and was a corpo-

a