United States Court of Customs Appeals, March 3, 1924. APPEAL from Board of United States General Appraisers, G. A. 8569 (T. D. 39268). [Reversed.] William W. Hoppin, Assistant Attorney General (Pelham St. George Bissell, special attorney, of counsel), for the United States. Allan R. Brown for appellees. [Oral argument May 9, 1923, by Mr. Hoppin and Mr. Brown.] Before MARTIN, Presiding Judge, and SMITH, BARBER, BLAND, and HATFIELD, BLAND, Judge, delivered the opinion of the court: Goods entered by appellees under the tariff act of 1913 were appraised at 15 per cent above their entered value by the appraiser who returned the invoice on May 3, 1920. Appellees attempted to appeal by filing supplementary notice of appeal to reappraisement on May 7, and on May 10 paid $1 to the collector, who received it and treated the appeal as completed. The single general appraiser on reappraisement sustained the entered value. The collector took an appeal to re-reappraisement where the reappraised or entered value was affirmed. The collector, in the final liquidation of the entry, assessed duty on the original appraised value and assessed additional duty because of the advance over the entered value, refusing to liquidate upon the reappraised value on the ground that the reappraisement and the re-reappraisement proceedings were void because the fee had not been paid within two days, as required by paragraph M of Section III of the act of 1913. The importers protest the action of the collector and contend that the entry should be liquidated in accordance with the finding of value by the board. The collector states that the time for moving for a rehearing after the finding in the re-reappraisement by the board of three had expired before he had taken notice of the date of filing fee. The board, sitting in classification, in its ruling opinion, referring to the jurisdictional question raised, held that— It is our duty, however, to give a liberal construction to those provisions of law out of which grow the board's power to ascertain and determine the market value of imported merchandise, and to ascertain and determine the correctness of the classification of said merchandise and the assessment of duty thereon. * * * We are inclined to the view that in a reappraisement proceeding, the board's jurisdiction being expressly statutory, jurisdiction should not be denied when the express statute which creates it has been substantially complied with. [Our italics.] We hold that this is a wrong conclusion of law. Paragraph M of Section III of the tariff act of 1913 in part is as follows: * If the collector shall deem the appraisement of any imported merchandise too low, he may, within sixty days thereafter, appeal to reappraisement, which shall be made by one of the general appraisers, or, if the importer, owner, agent, or consignee of such merchandise shall deem the appraisement thereof too high, and shall have complied with the requirements of law with respect to the entry and appraisement of merchandise, he may within ten days thereafter appeal for reappraisement by giving notice thereof to the collector in writing. Such appeal shall be deemed to be finally abandoned and waived unless within two days from the date of filing thereof the person who filed such notice shall deposit with the collector of customs a fee of $1 for each entry. [Italics ours.] The importers had 10 full days from May 3 in which to file their written notice of appeal. They filed it on May 7. The statute also says in no uncertain or indefinite terms: Such appeal shall be deemed to be finally abandoned and waived unless within two days from the date of filing thereof the person who filed such notice shall deposit with the collector of customs a fee of $1 for each entry. The importers could have waited until the tenth day, and then they would have had two days in which to file the fee, but they filed the notice on the fourth day, and in order to complete the appeal they should have filed the fee within two days from that date. The only right given litigants in appeal is in the wording of the statute, and it contains nothing that would authorize an extension of the 2-day period on the ground that the entire 10-day period had not expired. Under the express wording of the statute, we are not justified in stating that a filing of the fee on the third day after the notice of appeal is a substantial compliance with the act, or that anyone may waive, change, or extend its plain provisions. It seems clear to us that there was no appeal to reappraisement or to re-reappraisement, and that the single general appraiser and the board of three sitting in re-reappraisement were without any jurisdiction whatever, and that their acts were void. It follows that the collector was entirely within the law and within his limitations under the law when he refused to liquidate in accordance with the void re-reappraisement. If the reappraising bodies had no jurisdiction, the collector's acts before them were of no effect; his laches, neglect, or silence could not alter the plain mandate of the statute. The statute itself had dismissed the appeal; he could not revive it by any act of his. He could not waive the time limit; the law under which they were attempting to function had already dismissed the appeal. The words "shall be deemed to be finally abandoned and waived" should be noted carefully. No discretion is given to anyone. No officer of the Government, nor any judicial tribunal, is given discretionary power with reference to the appeal. If the fee is not paid. within two days after the notice, it is adjudged by the law that the appeal is not in existence, and the rights given have passed. "Deemed," "abandoned," and "waived" mean, according to Webster's New International Dictionary, as follows: Deem: To sit in judgment over or upon; to judge; also to pronounce judgment upon, to decide. Abandoned: To relinquish or give up with the intent of never again resuming or claiming one's rights or interests in; to give up absolutely; to forsake entirely; to renounce utterly; to relinquish all connection with or concern in. Waive: To throw away; to relinquish voluntarily, as a right which one may enforce if he chooses; to abandon or forsake. That the failure to file the fee within the time specified by the act leaves the single general appraiser and the Board of General Appraisers sitting in re-reappraisement without any jurisdiction whatever, is, we think, definitely decided by the cases of Sugar Products Co. v. United States (10 Ct. Cust. Appls. 179, 181; T. D. 38649) and Carriere v. United States (163 Fed. 1009; T. D. 28957). In the Sugar Products case the $1 fee was not paid in time, and the action of the single general appraiser, the board of three, and the Board of General Appraisers in dismissing the appeal on motion of the Government makes that case, with the exception of the question of the delay in making the motion to dismiss, on all fours with the case at bar. Judge Barber, in delivering the opinion of the court, said: It is really immaterial whether we regard the giving of the notice as constituting the appeal or as a preliminary step thereto to be supplemented and perfected by the deposit. In either view the provision is mandatory that "unless within two days" the deposit is made, "such appeal shall be deemed to be finally abandoned and waived." If deemed abandoned and waived there is no pending appeal. The real status of the matter is the same as if the notice had not been given. Nor is this inconsistent with importer's theory as to the legislative intent in enacting the provision under consideration, concerning which counsel argues that Congress intended thereby to discourage frivolous appeals, the taking of which serves to congest the files of the Board of General Appraisers, and that requiring the deposit was for the purpose of evidencing the good faith of an importer in taking an appeal. We are unable to see how, if the interpretation of the statute claimed by the importer be sustained, this purpose is accomplished. If all that an importer is required to do is to give his notice and then deposit the fee any time before the appeal comes on for hearing, it is clear that in many instances a long time would elapse between the taking of such an appeal and the manifestation of the importer's good faith in taking it. Indeed, no one but the importer could know whether the appeal was taken in good faith until it came on for hearing before the proper tribunal. * * * We regard the provision of the statute that unless the deposit for each entry is made within the two days the appeal shall be abandoned and waived as mandatory, and that in any subsequent proceedings attempted in such a case no other course is open than to so regard the alleged appeal. That has been done in this case. As the Board of General Appraisers in disposing of the matter well said: The limits of time within which the appeal must be filed and the deposit of the fee made are definite limitations of the statute which no judical tribunal may extend. (Citing authorities) To pretend to do so would be in effect to usurp the legislative functions of the Congress. And to this it may well be added that to ignore this express declaration of congressional will would be either to regard the same as meaningless or to deliberately deprive it of effect. In Carriere v. United States, supra, United States Circuit Judge Knappen in construing the following statute That if the owner, importer, consignee, or agent of any imported merchandise, or the collector, or the Secretary of the Treasury, shall be dissatisfied with the decision of the Board of General Appraisers, they or either of them, may, within thirty days next after such decision, and not afterwards, apply to the Circuit Court of the United States within the district in which the matter arises, for a review of the questions of law and fact involved in such decision. application shall be made by filing in the office of the clerk of said circuit court a concise statement of the errors of law and fact complained of (26 Stat. L., p. 138, ch. 407, sec. 15; U. S. Comp. St. 1901, p. 1933). (Italics ours) — said: Such The 30-day period had thus elapsed when the application for review was made. An application on the 31st day after the decision was not in time. (Citing authorities.) (P. 1010.) A motion to dismiss the application is made by the district attorney on behalf of the United States, upon the ground that it was not made within the period limited by statute therefor. If this application were one addressed to the discretion of the court, I should be loth to exercise it in favor of such dismissal, coming, as it does, upon final hearing of the case, and raised, as it is, only by brief of counsel. If, however, the failure to apply for a review within the statutory period is jurisdictional, no case for the exercise of discretion is presented. (P. 1009.) * * * This statute is mandatory and its observance is essential to the conferring of jurisdiction upon this court. The dismissal of appeals and writs of error because not taken within the period limited by statute is expressly based upon a lack of jurisdiction in the appellate court. (Citing authorities.) * A delay of one day beyond the statutory period is thus as fatal as a longer period. (Citing authorities.) * Going to trial upon the merits does not have the effect to waive the lack of jurisdiction. In Stevens v. Clark (10 Ct. Cust. Appls. 379; 62 Fed. 321) it was held that by going to trial upon the merits an appellee could not waive lack of jurisdiction resulting from failure to take a proper appeal within the prescribed time. * In Credit Co. v. Arkansas Railway Co. (128 U. S. 258), and in Edmonson v. Bloomshire (74 U. S. 306), the question of jurisdiction was raised by the court upon its own motion and upon hearing on the merits. The above authorities alone would seem to so definitely dispose of the question of jurisdiction and of waiver by the collector as to require no additional citations from the abundance of authorities. There being no jurisdiction, the actions of the single general appraiser and the board of three were absolutely void and not. voidable.-Atlantic Transport Co. v. United States (5 Ct. Cust. Appls. 373; T. D. 34872). In the Atlantic Transport case, the court said: It would seem, however, that the court may at any stage raise the question of jurisdiction of the subject matter, and should do so, and that the determina tion of the trial court that it has jurisdiction adds nothing to the force of its judgment. See Brown on Jurisdiction (second edition, sec. 26, at pp. 131 and 132), where it is said: If the court lacks jurisdiction over the subject matter of the controversy, all the authorities agree that the judgment is void, however honestly it may believe it is acting rightfully, whatever may be the recitals of its record, however formal may be its acts, or however judicious its conclusions. If it lacked power to perform the judicial act it undertook, its findings that it had jurisdiction adds nothing to the verity of its pretended judgment. Its power was usurped and its finding that it possessed the power in no way confers it. It is very ably and earnestly urged by the learned counsel for the importers that regardless of the question as to whether the trial tribunals below had jurisdiction or not, the jurisdictional facts were before them and their findings presume that they determined from the facts that they had jurisdiction, and that their decision can not be attacked collaterally, and that the issue raised by the Government in the case at bar is collateral. He also contends that the record in this case shows affirmatively that the requirements of the statute governing appeals were in fact complied with. The jurisdictional fact, to wit, the filing of the fee three days after notice of appeal was evidently considered by the board of three sitting in re-reappraisement. The opinion of the Board of General Appraisers while sitting in re-reappraisement is found in T. D. 38667 (G. A. 8421). There, it seems from reading the opinions, that it was admitted that the stamp showed that the fee was filed on May 10, and no suggestion that the fee was paid on an earlier date was made, and the board holds that the Government should have raised the question before the single general appraiser, so as to give the importers the chance to contradict the evidence of the "rubber stamp." The board's decision proceeds upon the theory that the Government's counsel "either actively waived or passively ignored the defect" (namely, the jurisdictional fact), "and taken chances on two trials,” and were estopped from raising the question successfully in subsequent proceedings. The board did not find that the fee had been paid within two days. On the contrary, if their decision can be said to make a finding on the question, it was at least by implication that the fee was not paid until on the third day, and that they had jurisdiction to consider the case owing to the waiver of the defect by the Government. General Appraiser Adamson reasons: If the importer should be deemed to have waived the appeal, if the fee was not paid, the Government may be deemed to have waived the objection to the defect and again: The Assistant Attorney General fails to cite any authority conferring upon this board original jurisdiction to consider and dispose of any such application and the gist of his application is an insistance on the importance of jurisdiction, and, if the board had no power to consider and dispose of the appeal if the point |