The language of the Supreme Court in Robertson v. Frank Bros. & Co. precisely paraphrases this situation, wherein the court said:

In our judgment the payment of money to an official, as in the present case, to avoid an onerous penalty, though the imposition of that penalty might have been illegal, was sufficient to make the payment an involuntary one. It is true that the thing done under compulsion in this case was the insertion of the additional charges upon the entries and invoices; but that necessarily involved the payment of the increased duties caused thereby, and in effect amounts to the same thing as an involuntary payment.

If the entry was an involuntary act, it was not binding upon the importers, and the commission, being a nondutiable item as found by the board, its inclusion for dutiable purposes by the collector was an illegal act subject to correction in this proceeding. United States v. Loeb (107 Fed. Rep., 692); United States v. Passavant (169 U. S., 16); United States v. Merritt (123 U. S., 356).

It will be noted that

We now come to the third point in the case. the Board of General Appraisers did not expressly find the market value of the goods, but rather announced a rule of law. We are of the opinion that, it having been determined that the 24 per cent commission was a nondutiable item, and that its addition to the entries was induced by duress and involuntary, the case is concluded.

It is not within the province or jurisdiction of this court to make a finding of market value of imported merchandise. The law confides the ascertainment of market value to an appraiser, a single general appraiser, and a board of three general appraisers, and makes their finding of facts conclusive upon the world. Customs administrative act (sec. 13):

The only question reviewable by this court in such cases is whether or not any illegality in the proceedings of these respective officials has obtained. If so, the subsequent procedure is illegal. United States v. Loeb (107 Fed. Rep., 692); United States v. Passavant (169 U. S., 16); United States v. Merritt (123 U. S., 356).

If the entries in these cases were not the free will of the importer, but involuntary, they were illegal entries and were not binding upon the importer. Maxwell v. Griswold (51 U. S., 242); Robertson v. Frank Bros. & Co. (132 U. S., 17).

While there is no express declaration in the statutes as to the order of proceedings in customs administration, the whole framework of the statutes and regulations made thereunder are constructed upon the principle that entry must precede appraisement. By entry, which is made under oath and must be accompanied by the invoice or substituted invoice, or a bond to produce the same, the importer gains possession of his merchandise from the collector, taking it out of the possession of the Government into his own. Until entry is made, and unless made within a stipulated time, the collector is compelled under

the law to retain in his possession all of the merchandise. Upon the making of entry and filing of the bond all of the merchandise except required samples is released to the importer. That this has been the theory upon which the Government has proceeded for 30 years at least is shown by T. D. 4788, wherein the Assistant Secretary of the Treasury expressly declared that there could be no appraisement before entry. Moreover, that this was the assumption of the Congress is shown by section 2928 of the Revised Statutes, wherein in specified cases express authority is deemed necessary and given that appraisement may be had before entry. (See also T. D. 15631.)

By the Treasury Regulations of 1899, article 410, and section 7 of the customs administrative act of 1890, it is declared that the collector shall direct the appraiser to make appraisement. It is expressly declared in these regulations that to that end the collector shall select certain packages, designating the number and method of selection, and send them, with the invoice, upon which shall be noted by the collector the entered value of the merchandise, "for the information of the appraiser."

That regulation, which was in effect during the importations covered by this case, is as follows:

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ART. 410. Every invoice, as soon as entered, shall be stamped with the date of the entry and certified by the signature of the collector or his deputy. The rates of duty charged upon entry and the entered value shall be duly stated on the invoice for the information of the appraisers.

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The collector shall then transmit all the papers to the naval officer, who shall * check the invoice, entry, and permit, if found correct, and, retaining the duplicate entry, return the original and other papers to the collector, who will promptly transmit the invoice to the appraiser.

This regulation transcends no law, is fully authorized by the general statute directing the Secretary of the Treasury to make rules and regulations affecting the appraisement of merchandise. (R. S., 2949.)

There is no discretion, under the regulations, allowed the collector in this behalf, and it is mandatorily required that whenever he shal call for an appraisement he shall forward to the appraiser not only the samples of the merchandise but the entered value thereof stamped upon the invoice for his consideration in determining the market value of the merchandise.

In innumerable cases from the commencement of the Government to date it has been uniformly held that there could be no valid appraisement without samples before the appraiser.

Not alone this, but the appraising officers must proceed in the examination of these samples as required by law and the regulations, and any deviation therefrom would result in an invalid appraisement. Converse v. Burgess (59 U. S., 413 [18 How.]); United States v. Passavant (169 U. S., 16).

By a parity of reasoning we are unable to conceive how there could be a valid appraisement when the entered value of the merchandise is either not or is improperly indorsed upon the invoice, for that is one of the matters which the collector must certify to the appraiser for his information in arriving at actual market value. If the entered value certified to the appraising officer is one which is obtained through duress and involuntary and does not represent the opinion of the importer nor indicate his true estimate of the value of the merchandise, we see no escape from the conclusion that the regulations have not been complied with in the appraisement of such merchandise, and, not having been complied with, the appraisement is an invalid one. The principle is precisely stated in United States v. Passavant (169 U. S., 16), wherein the court states:

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* While the general rule is that the valuation is conclusive upon all parties, nevertheless the appraisement is subject to be impeached where the appraiser or collector has proceeded on a wrong principle contrary to law or has transcended the powers conferred by statute. Oberteuffer v. Robertson (116 U. S., 499); Badger v. Cusimano (130 U. S., 39); Robertson v. Frank Brothers Company (132 U. S., 17); Erhardt v. Schroeder (155 U. S., 124); Muser v. Magone (155 U. S., 240).

Indeed, in the case of Maxwell v. Griswold et al. (51 U. S. [10 How.], 242), previously quoted, the Supreme Court in a case on all fours with this, where the illegality under consideration was duress in the making of the entry, stated concerning the appraisal as follows:

* * * We have already decided that the demand for such an increased appraisal was illegal. The appraisal itself, as made, was illegal.

And the same pronouncement is made by the Supreme Court in the case of Robertson v. Frank Brothers & Co. (132 U. S., 17), quoted supra, wherein the addition was made to one of the entries in apprehension of the imposition of added duties and penalties; the court pronounced this such a divergence from the prescribed procedure as to render the proceeding illegal.

While it is urged by counsel for the Government that any irregularities were corrected by the character of the notation made by the appraiser in his certificate of appraisement, the notation in the Robertson v. Frank Brothers & Co. case was almost identical in language. The notations in these cases were as follows:

Full foreign market value is covered by entered value, which includes item X. The item on the invoice marked "X" is "Commission 24 per cent."

The importers' addition noted. Full foreign market value will not be covered with "commission" deducted.

The notation in Robertson v. Frank Brothers & Co. case was: "Value correct, with importer's additions."

In our view of the case, having held that the entry was an involuntary one, the proceedings thereafter were vitiated, and hence, however

regular may have been the proceedings of the appraiser in other respects, they were, for the reasons stated, invalid.

The only value of a reference to these notations made by the appraiser in his certificate of appraisement is to confirm the logic of the conclusions hereinbefore reached in that they show the certification by the collector to the appraiser of the entered value forms, and did, particularly in these cases, form the basis going to make up the judgment and decision of the appraiser as to the true market value of the goods, and that, this being an involuntary value, the collector failed in affording the appraiser correct information upon this point. Having so failed, contrary to the regulations in such case made and provided, we think the appraisement was invalid.

The collector should take duty upon the invoice value, it having been determined by the Board of General Appraisers that the 24 per cent commission upon these invoices was not a dutiable item, and that determination having been approved by this court, it is the duty of the collector to proceed to liquidation without including this commission as a dutiable item in these particular cases. The decision of the Board of General Appraisers is reversed.

MILLBOARDS.

THE PANTASOTE Co. v. UNITED STATES (No. 38).1

Millboards made of refuse paper and bent or curved in form for use in ceiling cars are not dutiable under paragraph 402, tariff act 1897, but were dutiable as manufactures of paper under paragraph 407 of said act.

United States Court of Customs Appeals, October 18, 1910. TRANSFERRED from the United States Circuit Court, Southern District of New York, Abstract 22034 (T. D. 30086).

[Affirmed.]

Joseph G. Kammerlohr (John Giblon Duffy on the brief) for appellants.

D. Frank Lloyd, Assistant Attorney General (Martin A. Baldwin on the brief), for the United States.

Before MONTGOMERY, HUNT, SMITH, BARBER, and DE VRIES, Judges.

DE VRIES, Judge, delivered the opinion of the court:

This case comes up by transfer from the United States Circuit Court for the Southern District of New York.

This merchandise, described in the appraiser's return as millboards, is imported, first, rectangular sheets or boards, 2 feet by 4 to 6 feet by 12; second, similar boards glued or joined together to make greater dimension of surface; third, similar boards bent or curved to a concave form. They were assessed for duty as manufactures of paper at 35 per cent ad valorem under the provisions of paragraph 407 of the tariff act of 1897. The importer claims they are properly

1 Fe, orted in T. D. 3.008 (19 Treas. Dec., 1070).

dutiable under paragraph 402 of the same act at the rate of 25 per cent ad valorem, as paper hangings or paper not specially provided for.

The board followed in part another of its decisions, the record of which does not accompany this record, and held the flat sheets dutiable as paper and the curved sheets dutiable as manufactures of pulp, and gave decision accordingly. The importer appeals from the latter holding only.

But one witness appeared at the hearing. He was the examiner at the appraiser's department. He passed the merchandise and was called by the importers as their witness.

The issues presented in this case involve several questions, to wit, the substance from which the merchandise is manufactured, the processes of manufacture through which the articles as imported has gone from the raw material to the imported state, the subsequent use of the merchandise as imported and its ready fitness for such use in the condition imported, and name, if any, by which it was generally uniformly known in trade and commerce as imported prior to July 24, 1897.

Evidently the examiner alone who testified as to having passed the goods originally gave all the information upon the subject disclosed by the record. When asked at the hearing of what the merchandise was made, he testified it was made from refuse paper-refuse paper stock; usually of a cheap refuse paper or of rope," and when asked how the curved articles were fashioned he testified the only information he had on the subject was hearsay gleaned from the importer. When asked whether he had any information as to whether or not the bent boards were in shape for final use as imported, he said he had no definite knowledge on that subject; and to the question whether or not they had yet to be cut to sizes, he said they seem to be appropriate for use in the cars."

As to the flat goods, the testimony upon which the board ruled does not accompany this record. Though that portion of the decision. was not appealed, we are unable to say how far that record supported the other findings of the board in its absence.

While the testimony in this case, shown by this record, is meager and unsatisfactory, the conclusions of the board are presumably correct. The presumption of law attending official action supports that conclusion.

In United States e. Schering (123 Fed. Rep., 65) the Circuit Court of Appeals for the Second Circuit, in laying down that familiar principle of law, stated its application to customs laws in language as follows:

Where the classification of merchandise depends upon the existence of specified descriptive characteristics, it is to be presumed in favor of a correct classification that those characteristics were found by the officers of customs. These officers are