officer will describe it on the invoice, and that he may also indicate what in his judgment ought to be the classification of the same for duty; and by article 832, if it is found on examination that the merchandise varies in quantity or in character from the specifications in the invoice, the appraiser is to notify the collector, and, if necessary, request that the remaining packages be submitted for examination in detail.

It is not necessary further to multiply instances drawn from existing laws to show that under a proper view of the situation the appraiser is charged generally with the examination of all imported merchandise as to character and quality as well as value; that the officials by whom the investigation in respect to character, weight, and other details is made, report to the appraiser, and that by the appraiser the collector is informed of all the facts relating to the merchandise, and upon this information proceeds to classify.

The opinion of Mr. Garland (18 Opin., 360), relating presumably to a question of valuation, holds that the power of the appraisers under section 2922, Revised Statutes, which was supplied by and substantially reproduced in section 16 of the customs administrative act, was very complete; that such examinations upon oath may or may not be made, according to the discretion of the appraisers; that they can not be demanded by the importer, although they may be required by the appraisers; that Congress has not fettered such proceedings with statutory rules, but has wisely delegated to the Secretary of the Treasury the establishment of rules and regulations, and that as the Secretary of the Treasury had framed no rule permitting importers to appear before customs officers upon such examinations with counsel for the purpose of producing witnesses on their own behalf, the importers have no such right.

In Rankin v. Hoyt (4 How., 327), the collector had called upon the appraiser to estimate the value of certain wool, and although the duty was ad valorem by the tariff act then in force, it was claimed that the appraisal was unauthorized and that the invoice should have been the only guide. That case, which is one of the earliest cases on the subject of appraisement, went no further than to hold that the existing statutes authorized the use of the appraisers, not merely

when an imported article pays an ad valorem rate of duty, but whenever the duty is regulated by the value; that is, whenever a duty may exist or cease according to the value, as well as whenever it may increase or diminish according thereto. The decision also sustained the legal presumption that public officers act according to their duty and within their authority. In the present case it is true the duty is not regulated by the value, although both on the color standard and the polariscopic standard the value is greater as a matter of fact as the polariscopic degrees increase and as the numbers of the color standard rise, and the duties are laid progressively as the qualities increase under these standards; and the values, although not a basis of duty, follow in fact the increase in quality which the various tests reveal. (See Merritt v. Welsh, 107 U. S., 694, as to difference between color test and chemical polariscopic test.)

In Greely v. Thompson (10 How., 225), an appraisement was set aside because of the failure of one of the appraisers to inspect the goods.

In Bartlett v. Kane (16 How., 263), the appraisers had called for correspondence of an importer upon the question of dutiable value under the sixteenth section of the act of 1842, which contains provisions similar to the sixteenth section of the customs administrative act, but restricted to the question of value, and the importer, withholding the information for which the officers of the Government had called, after due legal requisition, the court held that he could not complain of an alleged overestimate in the appraisement.

In Greely's administrator v. Burgess (18 How., 413), the importer objected that the appraisers had not fairly and faithfully examined the goods according to the statutory requirements, which contained a positive mandate to open, examine, and appraise a certain number of packages, and upon this ground his protest was sustained.

In Belcher v. Linn (24 How., 508), the appraisers determined, with the approval of the court, that the article described in the invoice was in point of fact a different article, and that the invoice and entry were erroneous, not only with respect to the value affixed to the article, but also as to its description; and it was held in that case and in

Hilton v. Merritt (110 U. S., 97) that any dispute as to the nature of the produce imported and its conséquent classification in the invoice and entry is a question of fact within the jurisdiction of the appraisers, although their decision upon all questions except valuation may be open to review.

The foregoing cases, while relating to value particularly, show, I think, that it has been a part of the duty of the appraisers throughout the tariff history of the country to examine and inspect merchandise and report upon its character and quality in connection with the report on value or in addition thereto.

In the recent case of United States v. Ranlett & Stone (172 U. S., 133), the question was whether certain imported bags were dutiable as foreign-made bags at 2 cents per pound, a specific rate, the bales being permeated with bags of foreign manufacture and the appraiser reporting all the bags as dutiable and the collector so assessing them; or whether, being entered as returned bags of American manufacture, they were, as such, entitled to free entry, on the ground that the assessment was illegal because of the insufficiency or invalidity of the appraiser's examination, which determined the bags to be of foreign rather than of American origin. In the course of the opinion the court said:

"Under section 10 [of the customs administrative act] it was the duty of the appraiser to ascertain, estimate, and appraise the market value and wholesale price of the merchandise imported, and the number of yards, parcels, and quantity, and evidently this ascertainment involves character and quality as well as value, since the statement, invoice, or entry must be true in respect to the character of the goods as rell as their value.”

Here, then, is a typical case in which the question was duty or no duty, depending upon the character of the goods and the sufficiency of the appraiser's examination determining the character or quality. The duty was specific and not ad valorem, and the appraiser's determination that the goods were of foreign origin and not of American manufacture, in consequence of which the collector imposed the specific rate, was broadly sustained.

I recur now to the language of section 16 of the customs administrative act, which enlarges the provisions of the previous laws reproduced in section 2922, by extending the power of the officers named to cite witnesses and to require the production of letters, etc., as to any matter which they may deem material in ascertaining the classification as well as the dutiable value of imported merchandise. Its language. is very broad and includes by general terms all information which the officers empowered may deem material. I can not agree with the view that its provisions are distributive and that appraisers may call for information respecting value and collectors for information respecting classification. The phrase "as the case may be," used twice in the section, does not compel the view that the authority is distributive, because the phrase may aptly refer to the point in the proceedings at which the call for testimony is made. If the matter is pending before the appraiser, then that official may require the evidence whether it respects valuation only or embraces also the character of the goods, and whether the duties are specific or ad valorem. And so, if the case has reached the collector, the collector is empowered to make the order with respect to any aspect of the case not disposed of. I see no greater force in the phrase "as the case may be" than this, and I am of the opinion that the view stated is correct, although the question of valuation may have become final before the collector's jurisdiction attaches. That is to say, although under the proceeding to reach a final appraisement of value by section 13, other officers than the collector constitute the authoritative tribunal, nevertheless, as the collector may deem an appraisement of value too low, and may order a reappraisement, I conceive that he is empowered under section 16 to call for witnesses or documentary evidence from the importer even where dutiable value alone is involved, and per contra that the appraiser may call for witnesses and evidence where the inquiry concerns the nature and quality of merchandise in respect to classification rather than value. I am confirmed in this view because the work of the appraiser, as shown, has historically embraced the examination of merchandise from all points of view, and is

the source from which the collector is informed; and if the collector, as seems to be conceded, is entitled to the information sought, no valid reason can be perceived either practically or in law why his chief subordinate officer, so related to him, is not entitled to obtain it.

Even if it should be conceded that the only statutory function of the appraiser is to estimate foreign market value of imported merchandise in the statutory mode prescribed, because the laws of Congress nowhere invest him. with additional power or authority, nevertheless it is clear under the statutes and the regulations that the appraiser performs with relation to the collector many advisory funetions (G. A., 1915), and the language of section 16 of the customs administrative act is sufficiently broad and positive to sustain the appraiser's demand for information in relation to his advisory functions as well as in relation to his strict statutory functions concerning the determination of value. Furthermore, while the definitions of "appraise." "appraiser," and "appraisement" (see Webster, Century, and Standard dictionaries) recognize primarily the strict legal and technical meaning of the words as relating to an estimation of value, they also define the words more largely as including the function of estimating or judging in regard to quality, service, size, weight, or worth in a broader sense.

Consequently, upon the abstract legal question I clearly incline to the view, and so hold, that under the law as it exists, appraising officers are authorized to demand and secure from sugar importers the settlement tests of all importations of sugar.

But since the question is obviously a close one, and since the remedy of the Government upon the refusal of the importer to submit the desired information is by a proceeding under section 17 to collect a financial penalty and possibly to institute a criminal prosecution or an information to forfeit the merchandise, which remedy being harsh in its nature may perhaps lead a court (even in a case by no means clear, vide United States v. Doherty, 27 Fed. Rep., 730) to hold the ways and means pursued by the appraiser not reasonable and the proceedings unjust, inquisitorial, and oppressive, I am led to suggest considerations which are connected