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had been raised by a motion in the first instance, how could the board now acquire jurisdiction to hear and determine a motion to dismiss that appeal if the case were reopened? If the whole proceeding is null and void, it may be so regarded everywhere, and the matter needs no action by this board. (T. D. 38667; G. A. 8421.)

It is true that the jurisdictional fact, i. e., the date of the fee, could have been shown by evidence at the trial, and if the importers could have successfully proved the filing to have taken place within the two days, it is an unfortunate and regrettable position into which they have been thrown. Yet, where all the evidence in the record shows the filing to have been on the third day, and the case comes to us on that question, we can not permit our regrets to influence our declarations upon legal principles.

In further answer to the contention that the record in the case shows that the requirements of the statute regarding appeals were complied with, it should be noted that the record now before this court establishes without contradiction that the reappraisement fee was not deposited with the collector until the third day after the date when the appeal to reappraisement was filed. In the first place the collector made and recorded a finding to that effect and incorporated it in his official report to the classification board. It is of course elementary that the collector's findings and decisions are presumed to be correct, and that at the trial of a protest against them the burden of proof upon disputed questions rests upon the protestant. Therefore in this case, if the importers had intended to dispute the collector's findings relative to the date of the deposit they should have submitted their evidence upon the subject to the classification board at the trial of the protest. The record, however, discloses that the importers made no such contention before the classification board, and introduced no evidence at all at the trial. Furthermore, the importers' attorney there conceded that the reappraisement fee had not been deposited within the two-day period. Consequently, the board in its ruling opinion rightly accepted it as an established fact that the fee had not been deposited with the collector until the third day after the notice of appeal was filed. It is manifestly too late to raise any question of fact upon that subject now, and the legal effect of the belated deposit has already been declared.

Prior to the tariff act of 1922, reappraisements were not subject to review by the classification boards or the courts by means of a direct appeal or writ of error. Nevertheless they were subject to be impeached where the appraisers proceeded upon a wrong principle, contrary to law, or transcended the power conferred by statute, or failed to comply with statutory provisions.-Muser v. Magone (155 U. S. 240, 247), United States v. Passavant (169 U. S. 16), Loeb v. United States (1 Ct. Cust Appls. 385; T. D. 31479), Tilge v. United States (id. 462; T. D. 31507). It must be conceded that a reappraise

ment made without a lawful appeal therefor would fall within the foregoing condemnation. The remedy against such illegal reappraisements was not confined to the importers only, but was extended to the collector as well. Accordingly if the objection to the reappraisement came from the importers, they were permitted to file a protest against the liquidation upon the ground that it was illegal. On the other hand, if it was the collector who contended that the reappraisement was illegal, he could refuse to adopt it when liquidating the entry, leaving the importers to protest, should they desire to defend the reappraisement. It is plain that no other remedy against an illegal reappraisement would be available to the Government under such circumstances, for if the collector adopted such reappraisement as the basis of his liquidation the Government would be foreclosed thereby, since the collector could not file a protest against his own liquidation.

The protests in both classes of cases were triable alike upon evidence the same as other protests before the classification boards. At the trial of such an issue the reappraisement in question would be presumed to be lawful and correct (United States v. Bradshaw & Co., 5 Ct. Cust. Appls. 121; T. D. 34168), and that presumption would prevail unless overcome by positive, clear, and certain proof to the contrary (United States v. Johnson Co., 7 Ct. Cust. Appls. 466; T. D. 37050); but if the facts establishing the illegal character of the reappraisement in question were satisfactorily proved before the classification board it would be the board's duty to reject the reappraisement (United States v. Loeb, 107 Fed. 692); and if in cases like the instant one the importers themselves conceded before the classification board the existence of facts from which the illegal character of the reappraisement appeared, that board should sustain the action of the collector in rejecting the illegal reappraisement.United States v. Scanlan (5 Ct. Cust. Appls. 290; T. D. 34473).

In the absence of these remedies neither the importers nor the collector could have obtained relief under former tariff acts against illegal or void reappraisements, since a direct appeal therefrom to the classification board or the courts was not allowed. And if no remedial procedure at all had been provided or allowed it would have been idle for the courts to say that reappraisements were subject to be impeached "where the appraisers proceeded upon a wrong principle, contrary to law, or transcended the power conferred by statute, or failed to comply with statutory provisions."

The issue in this case is of the foregoing character, the importers claiming the reappraisements to be valid, while the collector refused to adopt them because of his claim that they were illegal and void. The issue therefore was not a collateral attack upon the reappraise

ments but a direct impeachment of them for illegality by the only means then allowed by law. Moreover, the illegality of a reappraisement could be proved before the classification board by facts dehors the record of the reappraising officers, and without the introduction of such records in evidence.-United States v. Loeb (107 Fed. 692). These considerations apply with peculiar force to the present case, since the deposit of the jurisdictional fee was required to be made with the collector, and therefore the only fact involved in the case was one which took place before him and became a part of his official record. When he came to liquidate the entry, he was necessarily compelled to decide whether to accept the local appraiser's valuation of the merchandise or that of the reappraising officers. And when he found from an examination of his records that no statutory appeal to reappraisement had been taken, he was bound to adopt the local appraiser's return. That action, however, was of course subject to review upon protest, and such a review necessarily required the classification board to pass upon the legality of the appeal to reappraisement. Its decision thereon was of course appealable to this court, and neither the classification board nor this court can be ousted of its jurisdiction in the case by the conclusions, if any, reached by the reappraising officers regarding the legality of the appeal.

In the next place, it may be observed that the question before us, rightly stated, is whether within contemplation of law there were any reappraisements at all in the present case. In other words, this appeal does not really call for a review of the reappraisements as such, nor does it question any ruling of the reappraising officers in relation to the merchandise or its value, but it challenges the authority of the reappraising officers to act at all under the circumstances. The issue therefore does not depend upon the proceedings which were had before the appraisers, but upon those had before the collector. For if there was no legal appeal taken before the collector, it would follow that the reappraising officers possessed no authority at all to deal with the merchandise, and their attempt to reappraise it was simply null and void. This principle was expressed in relation to reappraisement boards by the Circuit Court of Appeals, Second Circuit, in the Loeb case, supra, in the following words, viz:

As the board of three general appraisers is a special tribunal, and derives its jurisdiction from a compliance with the statutory requirements conferring it, it is undoubtedly true that its acts and decisions are coram non judice, unless the jurisdiction has been invoked pursuant to the terms of the statute by which it is conferred.

Therefore, if the jurisdictional requirements of the statute were not complied with there was no reappraisement within the sense of

the statute. This court when dealing with an analogous case, in Maddaus v. United States (3 Ct. Cust. Appls. 330; T. D. 32623), said:

The statute entitles the importer, or the Government, to an appraisement by a single general appraiser or a board of general appraisers proceeding according to law. The decision thus had become final, and neither the board nor this court can review the same. Until, however, the jurisdictional requirements of the statute have been complied with or satisfied there is no "decision" within the statute of a single general appraiser or a board of three general appraisers. The review sought, therefore, is not a review of the decision itself, but a review of the legal power of the general appraiser or board of general appraisers to render that which without such power duly exercised does not become the "decision" contemplated made final by the provisions of the statute. (P. 332.)

While this court has held in United States v. Kurtz, Stubbeck Co. (5 Ct. Cust. Appls. 144; T. D. 34192) that the Board of General Appraisers in classification is a judicial tribunal, and has also held in Shallus v. United States (5 Ct. Cust. Appls. 317; T. D. 34525) that the Board of General Appraisers in re-reappraisements is not a judicial tribunal, it is not necessary for us to determine whether the decision rendered by the Board of General Appraisers sitting in rereappraisement is such a decision as would come within the inhibition of the rule of collateral attack. We think, however, that the question of the timeliness of depositing the fee is squarely and properly before us, and that it is a jurisdictional question, and the question being properly before us, it can not be ignored. In the case at bar, the single general appraiser and the Board of General Appraisers in rereappraisement proceeded without authority of law and contrary to law in so far as they had no jurisdiction whatever in the case. The same parties, the same case, and the question of appraisement or reappraisement are before this court as were before the lower tribunals, and the question of appraisement is necessarily involved here as it was in the lower tribunals. This court is not setting aside a decree of the lower tribunals upon their weighing of facts in determining appraised value. The statute creating and giving power to the lower tribunal sets aside the decision for the reason that it denied it any jurisdiction whatever to determine the facts unless certain conditions were complied with by the litigants within a certain specified time. The void judgment amounts to nothing, and it is as if it did not exist. Neither the Board of General Appraisers nor this court can vest the appraising tribunal with a power which has been denied it by Congress. Congress exercised its right in fixing a definite limit of time in which an appeal could be perfected. No agreement or silence by the parties can confer jurisdiction where the legislative intent is plain that no jurisdiction shall vest.

It might be well to add that if it were admitted that the Board of General Appraisers sitting in re-reappraisement was a judicial tri

bunal, and if it were further admitted that the attack on its decision in this case was collateral, we do not think such attack would be in contravention of the rule against collateral attacks on decisions of judicial tribunals, for the reason that the finding of the Board of General Appraisers sitting in re-reappraisement in this case was absolutely void for want of jurisdiction. It was not voidable, but voida nullity with no more force and effect than if it had not been entered. Such a judgment, decree, or finding may be attacked in any judicial tribunal, in any other cause, at any time the question arises.-Lincoln v. Tower (15 Fed. Cas. No. 8355; 2 McLean 473); Moore v. Edgefield (32 Fed. 498); Thompson v. Whitman (85 U. S. [18 Wall.] 457). The judgment of the Board of General Appraisers in re-reappraisement we think clearly shows on its face a lack of jurisdiction, and that the jurisdictional question raised was erroneously decided in favor of the importer upon the theory that the Government had waived it.

The judgment of the Board of General Appraisers is reversed.


I regret very much that I find myself unable to agree with Judge Bland's opinion in this case.

It is undisputed that the entered value of merchandise imported by Robinson & Co. was advanced 15 per cent by the local appraiser. Within 10 days thereafter the importers filed their notice of appeal to reappraisement and deposited with the collector the statutory fee of $1. Thereupon the invoice and the appraisement of the merchandise described therein were forwarded to the general appraiser for reappraisement.

The general appraiser declined to approve the advance made by the local appraiser and reappraised the importation at its entered value. From that reappraisement the collector of customs took an appeal to re-reappraisement and the board of three general appraisers, sitting as a board of re-reappraisement, and not as a classification board, finally appraised the merchandise at its entered value as found by the general appraiser.

Notwithstanding the fact that the board had jurisdiction to appraise and that its appraisement became final and conclusive on the parties litigant, the collector in effect declared that his appeal to re-reappraisement had not come on to be heard in regular order and claiming that the records of his office showed that the $1 fee had not been paid within two days after importers' notice of appeal to reappraisement, he held that the board's decision was void.

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Paragraph M vests three general appraisers with judicial functions. and expressly provides that their decision "in all reappraisement cases shall be final and conclusive against all parties

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