relied upon and quoted in the Ferry case, is that the importer in such cases has the right to proceed by protest, as provided by law. In the Ferry case the goods had been imported but were destroyed thereafter in the warehouse of the importer while a bond to return them upon demand to the custody of the collector was in existence. The importer made due claim before the Secretary of the Treasury for relief under section 2984 of the Revised Statutes, a special procedure, similar to that of section 23 of the customs administrative act of 1890, and that being rejected proceeded by petition in the United States circuit court. The court of appeals held that there was no jurisdiction in the circuit court to review the decision of the Secretary of the Treasury, as the statute had confided in the Secretary, under section 2984 of the Revised Statutes, the power to grant relief in such cases, and inasmuch as the importer had invoked that procedure the decision of the Secretary could not be reviewed by the courts for want of statutory authority. The court, in commenting upon Nichols v. United States and following the same, specially emphasized the fact that no protest had been filed in accordance with the customs administrative act, and stated the facts of the Nichols case to be as follows: A portion of the liquor had leaked, and, being lost, was, in fact, never imported at all into the United States. The importers made no written protest, as required by the customs law of the United States, but some five years afterwards filed a petition in the Court of Claims. The court then quotes the Nichols case as to the authority of Congress to confide in special tribunals methods of procedure in such cases, and emphasizes the language of the Supreme Court in the Nichols case, wherein it is stated: If the importer does not protest, his right of action is gone. In the Nichols case it was distinctly held that in the case of nonimportation of merchandise the remedy was by protest. In the case of damage to merchandise the remedy is to proceed under the provisions of section 23 of the customs administrative act, because that remedy is by the terms of the law made exclusive for such rights. In the Ferry case the court held that because of the peculiar conditions of the case, to wit, that the merchandise was destroyed while in the custody of the importer after importation, and the importer having undertaken the remedy provided by section 2984 of the Revised Statutes, and that remedy alone, the decision of the Secretary was final. Indeed that was the exclusive remedy and the court later said being denied no recovery was possible. The court in the Ferry case, however, in no case holds or intimates that in a case of nonimportation the importer could not proceed by timely protest in due form. On the contrary, it quotes the Nichols case, which plainly holds that that is the only remedy in such cases. And this was the view later by the circuit court in this case. In the second instance, certain preliminary steps are prescribed by section 23 of the customs administrative act and other cognate statute and regulations before the importer can duly demand relief. In the absence of any conditions precedent, statutory or regulative, other than that cited, and in the presence of a nonimportation of the whole or any part of the cargo, the importer undoubtedly has the legal right to proceed by protest, and when proof of the necessary facts therein alleged is sustained before the proper tribunal is entitled to a refund accordingly. The Board of General Appraisers having found that in this case the 29 cases and 59 boxes were totally worthless, we see no escape from the conclusion that there was a nonimportation as to that portion of the merchandise, and that the importer having complied with all conditions as to recovery is entitled to the relief demanded. It is insisted by the Government in its brief, however, that the fact that the importer had violated his bond, which was a general one covering all importations he might make for a period of six months, should operate as an equitable estoppel in the assertion of this protest. The circuit court did not concur in this view, and we are of the opinion that the circuit court was correct. Demonstration of this can be had, it seems to us, by considering the legitimate sequence of such a view by this court. This court by such a holding would proceed to determine the rights as between the Government and the importer upon a bond of which in this proceeding, at least, it concededly has no jurisdiction. Furthermore, the determination by this court that the penalty for a violation of this bond, if it were violated, by the importer should be the amount of duties paid upon this merchandise would be the fixing of a penalty against the importer and in favor of the Government, which is in no sense authorized by the terms of the bond. This court, in our opinion, can not assume jurisdiction of questions arising upon this bond or proceed to measure out a penalty for a violation thereof. Counsel for Government has apparently recognized in his brief that such a holding could not be arrived at except upon a strained equitable basis, and stated that if the Government can not recoup in this proceeding it has no remedy. If equity is to be administered in the premises, it would be in a proceeding upon the bond direct, and if it be found in such or in this proceeding that the Government by reason of the character of the bond or otherwise, is without remedy, that is a matter for the Congress or, perhaps, the Secretary of the Treasury, who has the plenary power of making regulations affecting the collection of the customs. It is not within the province of this court to repair or make statutes or regulations. The decision of the circuit court is affirmed. ULLMAN v. UNITED STATES (No. 19).1 1. RATE ON ENTRY OF GOODS DEPRECIATED IN VALUE. Where imported merchandise offered for entry has depreciated from its invoice value, the rate of duty is to be determined by considering not alone section 19 of the customs administrative act of 1890, but effect must be given to section 7 of said act and the duty should not be assessed in any case upon an amount less than the invoice or entered value. 2. TREASURY REGULATION OF APPRAISEMENT, FORCE of. A regulation issued by the Treasury Department permitting entry by appraisement without invoice is not valid, in so far as the regulation might be construed to abrogate section 7 of the customs administrative act of 1890, requiring that in no case shall an assessment be fixed on an amount less than the invoice or entered value. United States Court of Customs Appeals, October 28, 1910. APPEAL from Board of United States General Appraisers, G. A. 6918 (T. D. 29883), to United States Circuit Court, Southern District of New York (T. D. 30298); appeal thence to United States Circuit Court of Appeals and transferred. [Affirmed.] John Giblon Duffy (Joseph G. Kammerlohr of counsel) for appellant. D. Frank Lloyd, Assistant Attorney General (Thomas M. Lane on the brief), for the United States. Before MONTGOMERY, HUNT, SMITH, BARBER, and DE VRIES, Judges. MONTGOMERY, Presiding Judge, delivered the opinion of the court: Appellant entered at the port of New York a quantity of sealskins under a consular invoice showing the cost to him, and at the same time offered evidence to the collector to show that after the date of the purchase of these skins in London the market value had materially decreased, and sought to enter his merchandise at the correct market. values as of the date of exportation to this country. This offer was accompanied by papers showing the correct market value. The collector indorsed upon these papers his rejection of the same, and ordered that the entry be made at the actual purchase price, which was done accordingly. The case came before the appraiser for appraisement, and that officer appraised the goods at the invoice price. It appears that this action was purely perfunctory and based upon a construction of the law which, in his view, made it imperative that he should assess at not less than the invoice value. The question presented for decision, therefore, is whether on the undisputed facts, where it appears that the invoice value was greater than the actual value of the goods at the date of exportation to this country, the invoice value or the actual value was the proper basis for assessment. The material provisions of law to be considered are the following: Furs, dressed on the skin but not made up into articles twenty per centum ad valorem. (Paragraph 426, tariff act of 1897.) * The duty shall not, however, be assessed in any case upon an amount less than the invoice or entered value. (Sec. 7, customs administrative act.) 1 Reported in T. D. 31032 (19 Treas. Dec., 1113). That whenever imported merchandise is subject to an ad valorem rate of duty * * * the duty shall be assessed upon the actual market value or wholesale price of such merchandise as bought and sold in usɩ al wholesale quantities, at the time of exportation to the United States. (Sec. 19, customs administrative act.) * * * It is insisted by the appellant that by the very terms of the act imposing the duty on an ad valorem basis the basis of actual value is to be implied. This, in the absence of other provisions of the tariff law, would undoubtedly be correct. It is further insisted that section 7 of the customs administrative act under which the assessment was made at the invoice value is controlled by section 19 of the same act, which provides that the duty shall be assessed upon the actual market value or wholesale price as bought and sold in usual wholesale quantities at the time of exportation to the United States, and the rule is invoked that where a conflict is found between two statutes or two sections in the same statute the later provision must prevail as the latest expression of the legislative intent. This is without doubt the general rule of construction. If it has application with full force to this case the appellant's contention must be allowed. But this rule is subject to certain recognized exceptions and should never be applied except in case where the repugnancy between the two provisions of the statute is irreconcilable The statute is to be construed with reference to other statutes in pari materia, and as is well stated by the author in Endlich on Interpretation of Statutes, section 183, by a general survey of the whole context, and the provisions are to be made to stand together if possible. The Supreme Court has applied this modification of the rule in construing revenue laws. As was said in United States v. 67 Packages of Dry Goods (17 Howard, 85): In the interpretation of our system of revenue laws, which is very complicated, this court has not been disposed to apply with strictness the rule which repeals a prior statute by implication where a subsequent one has made provision upon the same subject and differing in some respects from the former, but have been inclined to uphold both unless the repugnancy is clear and positive so as to leave no doubt as to the intent of Congress. If we apply this rule and consider the history of the provisions under consideration, we think little doubt can be left that it was the intention of Congress to perpetuate the provisions of section 7, which are not new to the tariff laws, but have been in one form or another embodied in every tariff enactment since 1818, so far as our examination has enabled us to determine. Not only is this true, but this law has been applied where there was the same room for contention for a repeal by subsequent enactment as there is in this case for the claim of repeal by a later provision of the same statute. Kimball v. Collector (10 Wallace, 436) is in point. The case of The contention now urged was made to very similar provisions in the case of Ballard v. Thomas (19 Howard, 382). The eighth section of the act of 1846 provided "that under no circumstances shall the duty be assessed upon an amount less than the invoice value, any law of Congress to the contrary notwithstanding." It was claimed that this section had been repealed by the act of Congress of March 3, 1851, which provided that the collector should "cause the actual market value, or wholesale price thereof at the period. of the exportation to the United States, in the principal markets of the country from which the same shall have been imported * * * to and to such value or price shall be added all as the true value at the port where the * * * be appraised It was said: * * Previous to this act, the time when the value of the article in the foreign market was to be ascertained was the time of the purchase, now, by the act of 1851, the time of exportation. There is no change, however, in the rule which must govern in making the valuation-it is the actual market value or wholesale price in the principal markets of the country from which the article shall have been imported. The only real change, therefore, in respect to this matter, under the law of 1851, from that of 1842 and 1846, would seem to be a change of the time when the valuation is to take place, without intending to interfere with any other of the regulations in the former laws. The court therefore sustained both provisions. We conclude that section 19 and section 7 are to be read together, and that section 19 is qualified by section 7; that when an actual assessment is made upon information to be derived by the collector, the assessment is provided for by section 19; but that, reading section 7 in connection with section 19, there is a clear limitation placed the action of the collector, and that in no case can the assessment be less than the invoice or entered value. upon As was intimated by the court in Kimball v. Collector (supra), the redress for such a grievance as exists in the present case should be sought in Congress, and it is proper to note that Congress in the tariff act of 1909 has amended section 7 so as to permit of the entry at less than the purchase price where injustice would otherwise be done. It is further claimed that article 1450 of the Customs Regulations of 1899 gave the right to the importer to have his goods entered at the lower rate. Section 251 of the Revised Statutes imposes upon the Secretary of the Treasury the duty to prescribe rules and regulations not inconsistent with law to be used under and in the execution and enforcement of the various provisions of the internal-revenue laws or in carrying out the provisions of law relating to revenues from imports, or to duties on imports, or to warehousing. Manifestly, the first requisite as to a regulation by the collector is that the rules prescribed shall not conflict with existing law. Acting under this pro |