UNITED STATESV. LENG.
nary, 1881, at the amounts deposited and paid by the importer upon the original entries, with the exception of $11.90, which it is claimed was paid by the iJllporter. Thereafter, on the twentyfourth of 1881, the secretary made a further order, contrary to his previous decision in favor of the importer, and directed another reliquidation in accordance with the collector's original assessment and' liquidation; and under this last order the duties were again liquidated by the collector on the third of March, 1881, to $4,015.83 in excess of the amonnt previously liquidated and paid, to reccver which this suit was brought, with interest to the time of trial, amounting to $301.17; and a verdict was thereupon directed for the aggregate sum of $4,317, subject to the opinion of the court, with leave to either party to file a bill of exceptions, to which direction the defendant excepted. William C. Wallace, Asst. Dist. Atty., for the United States. ScuddM' & Carter, for defendant. BROWN, J. The small balanc.e of which, upon the reliquidation in January, 1881, after the original decision of the secretary of the treasury, was found not to have been covered by the de. posit at the time of the original entry, must, I think, be assumed to have been paid in January, 1881, before the date of the last reliquidation. It was proved that the money was given by the defendant to his custom-house broker for the purpose of payment, and the latter testified to his belief that he did pay it; and on the ,trial it was not understood that any question was made upon this point. Upon the facts, therefore, admitted or proved, it appears that after due protest and appeal to the secretary of the treasury from the original liquidation of the collector, pursuant to section 2931, the secretary's decision thereupon had been communiaated to the collector bya formal order, and acted upon by a reliquidation of the duties in can· formity therewith, and by payment and settlement of the duties in accordance with the secretary's decision. The third liquidation, namely, that of March 3, 1881, based upon the subsequent order of the secretary of the treasury, of February 24, 1881, was made more than a year after the entries upon the first two importations, and was, therefore, in my judgment, unauthorized and void, under the act of June 22, 1874. By section 21 of that act, (1 Supp. Rev. St. 81,) it is enacted that" Whenever duties upon any im;Jorted goods shall have been liqUidated and paid, and such goods shall have been delivered to the owner, such settlement of duties shall, after the expiration of one year from the time 01 entry, in the absence of fraud, and in the absence of protest by the owner, be final and conelusive 'lpon all parties." This statute is binding upon the government, (U. S. v. Phelps, 17 Blatchf. 316;) so that after one year from the date of entry, no previous settlement of the duties, in the absence of fraud or protest,can be v.18,no.I-2
overturned by means of a reliquidation, or otherwise. It is not claimed that there was any fraud in this case j nor at the expiration of the year from the date of entry, or at the time of the last reliqui· dation on March· 3, 1881, was there any existing protes.t. By the words "in the absence of protest," the statute means the absence of any protest pending and in force at the expiration of the year or at the date of the proposed reliquidationj that is, a protest upon which proceedings are then pending, or which may serve as the basis of some future appeal to the secretary, or of some suit in the courts. In this case, after the secretary's first decision, and the reliquida. tion made under it, in accordance with the defendant's protest and appeal, no further protest or appeal, either to the secretary or to the courts, was taken, or could be legally taken, by the defendant, because that decision had sustained all the defendant's claim asset forth in his protest; and by section 2931 that decision incontestably became "final and conclusive" upon him. The former protest was, therefore, wholly spent; 80 that at the expiration of the year from the date of entry, there was no protest which had any vitality, or which could by any possibility become the bltsis of any further proceedings. It had been completbly disposed of by the secretary's decision and order sustaining it, and by the reliquidation under that order, and the settlement and payment made in accordance with it. The first two entries, therefore, come within the limitation of this section, and the subsequent reliquidation of March 3d, as respects them, was unauthorized and void upon this ground. The third entry, that of April 10, 1880, was less than a year prior to the reliquidation of March 3,1881, upon which the present suit IS based. This action, however, was not commenced until August following, which was more than a year from the date of entry. If section 21 above quoted is interpreted as being strictly a statute of limitations, restricting the commencement of suits to one year after the date of entry, then this action would be barred as respects the third entry also. I do not think, however, that was the intention, or would be the proper construction, of this section. As was said in U. 8. v. Campbell, 10 FED. REP. 822, the statute is in the nature ot It statute of limitatioDs,as respects the remedy of the government b) reliquidation, and limits that remedy, after settlement, to one yeal from the date of entry; but the statute makes no reference to the commencement of suits; it declares only "that such entry and passage free of duty, and such settlement of duties, shall · '* · be final and conclusive upon all parties;" this is, if no proceeding be taken by either party to avoid the effect of "such settlement of duties," the settlement sO made shall, after one year, in the absence of fraud or protest, be final and conclusive. Until the lapse of a year such settlement of duties is not binding or conclusive. A reliquidation is the first step in the collection of additional duties, and in preventing
the prior settlement from becoming binding and conclusive upon the government. Such reliquidation, therefore, if lawfully made within the year, vacates and annuls the former "settlement," and hence the statute no longer applies. If a higher duty be thereby assessed, a valid obligation of the importer to the United States becomes thereby legally ascertained and fixed by the collector, as the tribunal authorized to determine it, (13 How. 488;) and upon this obligation, thus fixed and determined within the year, I think the government may sue at any time afterwards. U. S. v. Camarata, 2 FED. REP. 145. The defense based upon section 21 of the act of 1874, therefore, fails, in my judgment, as respects the entry of April 10, 1880. It is necessary, therefore, to consider, as respects the third entry, the validity" of the liquidation of March 3d, based upon the order of the secretary of the treasury made February 24, 1881, contrary to his decision upon the importer's appeal, and his order announcing that decision made in November preceding. The order of February 24th was not itself put in evidence, so that it does not appear whether that order was intended to be made as a part of the appellate proceeding under section 2\;131, or under some other general or particular authority of the secretary of the treasury. The absence of the order is not, however, very material, as I am satisfied. that the decision on appeal, after it had been once duly made and promulgated by the secretary's order, and acted. on by areliquidation of duties accordingly, could (1) neither be set aside collaterally by any subsequent and independent order, nor (2) recalled and reversed as a part of the appellate proceeding. 1. There can be no question, as it seems to me, that the secretary, in hearing appeals under section 2931, acts as a specialstatlltorytribl1nal, of a quasi judicial character, for the determination of the questions brought before him in accordance, with the provisions of that section, and that such was the intention of the statute. Under his general powers he is not officer, and though he may make rulings and give a constructIon to the tariff laws binding upon his subordinates, (section 2652,) he is not authorized to assess duties upon particular importations, because that duty is specially charged upon the collector, (sections 2621, 2930,) and the statute makes the collector's decision final andcon.elusive upon the importer, unless an appeal be duly taken. It is only by virtue of such an appeal that the secretary a.cquires jurisdiction of. that proceeding. The hearing before him ls,therefore, purely appellate; and his jurisdiction and powers in deciding this appeal do not differ from those which any other person would have who was appointed by statute to determine it. The is based upon specific exceptions stated in the protest and appeal, which are required by statute to "set forth distinctly and specifically the grounds of objection" to the collector's decision. The qt\E;lstions presented are mainiy judiciaJ in their charactel" and relate to the. construction of the tariff law, the classification of goods and the rate of questions
as· to value merely having been prevIously determined, (section 2930,) -and the decision of the appeal is made "final and conclusive," save only the provision for a suit by the importer in the circuit court. These features show that the appellate proceedings must be classed with those of a quasi judicial character before a speci'll statutory officer or tribunal; and their force, except as otherwise prescribed by statute, must therefore be construed according to the law applicable to such tribunals. In the case of Lawrence v. Caswell, 13 How. 488, TANEY, C. J., referring to the collector's decision, says:
"Where no protest is made, the duties are not illegally exacted in the legal sense of the term, * II< II< but paid in obedience to the decision of the tribunal to which the law has confided the power of deciding the question." Nichols v. U.' S. 7 Wall. 127; U. S. v. Campbell, 10 FED. REP. 819.
The general rules of law applicable to the determinations of such 8pecial tribunals are well settled. Except as otherwise .provided by statute, their decisions are binding and conclusive adjudications upon all the parties to the proceeding, like the judgment of a court of record; .and this is so independent of any express statutory provision making them final. When a statute creates a special tribunal to determine a class of questions, it is a necessary implication that the determinations are intended to have force and validity, otherwise the whole proceeding would be vain and useless, (Tappan v. U. S. 2 Mason, 404; Rankin v. Hoyt, 4 How. 335;) and to give them validity at all, there is no alternative but to make them final, except with such limitations as the statute itself prescribes.
" It is a universal principle," says BALDWIN, J., in U. S. v. Arredondo, 6 Pet. 729, "that when power or jurisdiction is delegated to any public officer or tribunal over a subject-matter, and its exercise is confided to his or their discretion, the acts so done are binding and valid as to the SUbject-matter. and individual rights will not be disturbed collaterally for anything done in the exercise of that discretion within the authority and power conferred. The only qnestions which can arise between an individual claiming a under the acts done and the public. or any person denying its validity, art' power in the officer and fraud in the party. All other questions are settled by the decision made or the act done by the tribunal or officer. whether executive, legisJative, judicial, or special, unless an appeal is prOVided for, or other revision by some appellate or superVising tribunal is prescribed by law."
This expression of the law has been repeatedly affirmed by the su- preme court as applied to appraisements of value for the purpose of assessing duties. Bartlett v. Kane, 16 How. 263; Belcher v. Linn, 24- How. 522. Section 2931, in declaring that the secretary's decision shall be "final and Mnclusive," only enacts expressly the ordinary rule of law applicable to such tribunals. The government, moreover, is plainly a party to the proceeding. The whole controversy is between the government and the importer or owner, as appellant. By the ordinary rule, therefore, as well as by the language of section 2931, the government, as a party to the proceeding, is bound by the decision.
UNITED STATES V. LENG.
For the plaintiff it is contended that the words "final and conclusive" should be applied only to the importer or owner, and not be construed tQ bind the government; and the construction given to the same words in the preceding part of the same section, as to the effect of the collector's decision, is appealed tom support of that contention. But the two clauses are 'not similar. The collector's decision is declared to be "final and conclusive" only "as to all persons interested in the goods;" and a reference to prior statutes shows conclusively that only the owner, importer, etc., are referred to by the words "persons interested in the goods," (see Act of March 3, 1857, § 5; 11 St. at Large, 195,) and that those words are not intended to include the United States. It is by reason of this very limitation, expression of the limited effect of the collector's and the decision, that his decision is held not to prevent a subsequenUiquidation. U. S. v. Phelps, 17 Blatchf. 312, 816. But there is no such limitation of the effect of the decisio'n of ,the secretary of the treasury on appeal. It is made "final and conclusive," without qualification, (except in a particular suit,) and without being restricted, like the collector's decision, to one of the parties only; and it must, therefore, be held to be binding on both parties alike,.,.-i. e., upon the government as well as the importer,-subjeat only to the qualification stated. The clause in the statute next following the words "final and con· elusive," viz., "and the goodd shall be liable to duty or exempted therefrom accordingly," further shows the intention that the decision shall be binding on the government as well as on the importer; and this intention is indicated still more emphatically by the additional language of the original acts from which the revision is made, which declare that "the goods shall be liable to duty or exempted therefrom, accordingly, any act of congress to the contrary notwithstanding,"Act of March 3, 1857; § 5, (11 St. at Large, 195;) Act of June 30, 1864, § 14, (13 St. at Large, 214,)-that is, no matter what other statute or apparent powers might seem to authorize· a different or further determination, the secretary's decision on appeal shall stand . as the final determination of the amount of duty payable, except only further/determinaticn as may ,be had in a suit brought as there prescribed. Per BLATCHFORD, J., in U. S. v.Oousinery, 7 Ben. 255, approved by the chief justice in Wattv. U. S. 15 Blatchf.33. In omitting. the last clause in the Revision, it is not to be supposed that congress intended any change in the effect of the secretary's decision on appeal. However extensive may be the general powers 01 the secretary of the treasury, in his superintendence of the collection of the revenue, (sections 248,249,251,2652,) they cannot authorize any acts in conflict with the particular provisions of· section 2931, or with the bind i ing effect of his decision on appeal, as prescribed by that section and the general rules of law. The gQods could not be "liable to duty (lC-
cordingly," i. e., according to his decision upon t,he appeal, and n"ot otherwise, "any act of congress to the contrary notwithstanding," if he might lawfully direct a different duty to be assessed through any subsequent and independent order. Considering, moreover, that the decision of the appeal is committed to the head of the treasury department; that the government is thereby in a sense the judge in its own case; that the secretary, in the performance of his duties, is aided by permanent and learned experts in the interpretation of the tariff laws, and in guarding the interests of the revenue; and that in practice, by reason of the importer's sub· sequent right of snit, every doubt on the hearing is resolved in favor of the government,-it would seem irrational and extraordinary if the decision of such a tribunal, the highest officer in the department and the special guardian of the revenue, should have no binding force on the government itself. Under section 2930 the decision of the merchant appraisers on appeal, or, if they do not agree, then the decision of the collector, as to the value of the goods, is in like manner declared to be "final." The United States, though not named, are, nevertheless, held to be bound by the decision equally with the importer, so that the valuation as thus fixed cannot be again inquired into, either by the secretary or by the courts, in any subsequent suit. Tucker v. Kane, Taney, Dec. 146; Stairs v. Peaslee, 18 How. 521, 527; Iasigi v. The Oollector, 1 Wall. 375, 383; Tappan v. U. S. 2 Mason, 398; Morris v. Maxwell, 3 Blatchf. 143; Wills v. Bussell, 1 Holmes, 228. The provisions of section 2931, and of the acts of 1851 and 1864, above quoted, are more emphatic as to the finality of the secretary's decision than those of section 2930, as to the appraiser's decision on appeal, and I can perceive no reason why the former should not be held to be as binding upon the government as the latter. The only later statute to which I have been referred as authority for any subsequent order for the re-examination or reliquidation of the duties is the act of March 3, 1875, (1 Supp. Rev. St. 172.) The first proviso of section 1 of that aot provides that the secretary may authorize a re-examination and reliquidation whenever he "shall be of opinion that such duties ha.ve been assessed and collected under an erroneous view of the facts in the case, and make such refund in accordance with existing laws as the facts so ascertained shall, :n his opinion, justify; but no Buch reliquidat,ion shall be allqwed, unless protest .and appeal shall have been made as required by law." The title of the act, the context of the proviso, and the express prohibition of any such reliquidation, "unless protest and appeal shall have been made, as required· by law," show conclusively that no "re-examination and reliquidation," in the interest of the government, are designed or authorized by thi:g proviso; but only a reliquidation demanded by and for the benefit of the importer or owner. This proviso, therefore, cannot apply to a case like this, where an
UNITED STATES V. LBNG.
appeal has been previously decided infa,vor of the importer, and a reliquidation made by the collector in accordance with the decision and with the importer's claim; both because no further re-examina. tion or reliquidation is demanded by the importer, and because there is no protest and appeal from the last liquidation, which is the only remaining assessment of duties said to be erroneous, and which it is proposed to correct; whereas the proviso expressly requires such a protest and appeal as a condition of the secretary's right to take further action. This proviso, moreover, manifestly has no reference to a direct review by the secretary himself of his own previous decision, .as to the principle of classification, in favor of the importer, and as a part of his proceedings upon a protest and appeal under section 2931. The third proviso of the same section of the act of 1875,relating to the correction of errors "arising solely upon errors of factj" does not purport to enlarge the secretary's former powers; it has no reference to the secretary's authority to review his bwn decisions in proceedings brought before him upon protest and appeal under section 2931; nor can it apply at all to this case, which depends upon the construction of different sections of the tariff act as to classification, and not upon any errors in liquidation "arising solely from errors of fact." For the above reasons it must be held that· the decision on appeal, under section 2931, is a binding adjudication upon the governmant, and cannot be disregarded or set aside by any subsequent independent order, nor collaterally attacked or reversed, ex:cept by suit, as provided by that section. 2. It remains to consider what is the decision on appeal which, by section 2931, is made "final and conclusive;" and· whether, aside from the act of 1875, which I have said does not affect it, whenonoe rendered, it can be recalled, reviewed, and reversed as a part of the same appellate proceeding. A similar question in regard to the action of the permanent appraisers! was considered in Iasigi v. The Collector, 1 Wall. 375, 383. But the act of 1830 (Rev. St. §·2929) expressly authorizes the collector to direct a reappraisement, if dissatisfied with the appraiser's report; and in view of that act, and of the liability of the appraisers to mistake through the lack of information, and of the interests of the government, it was held that the appraisers, upon the collector's request, might, within a reasonable time, reconsider their report. In Bartlett v. Kane, 16 How. 263, it was also held that after a'll appeal had been taken to the merchant appraisers,but before it had been acted on, the permanent appraisers might further consider their valuation and require the production of papers relating thereto. But neither this reappraisement by the original appraisers, sustained br express statutory authority,:p.or·the reliquidatiOI1 which the collector may also make, under the express statutory limitation of the effect of his original liqnidation, afford any support to a direct review and reversal of ithe decision ou appeal
because such a review in the latter proceeding has no such Rtatutory or authority. The very language of the statute, making the decision "final and conclusive," would seem of itself to forbid any such review; for so long as any such right of review exists at the option of the secretary, surely' the decision made on appeal is net "final and conclusive;" and if he may recall and reverse it once, he may do so indefinitely, until cut off by the act of 1874 above cited. The effect of Buch a rule would be that the decision on appeal would have n0 quality of finality whatever, and the language of the statute would beset at naught. If the analogy of appaals to the merchant appraiserd be considered, it has never been held, so far as I can learn, that the report of the latter, after it has been rendered and the duties liquidated accordingly, could be recalled and modified. No statute countenances such a proceeding, and all the decisions above quoted, holding the report final as to tl1e valuation, imply the contrary. In the absence of any statutory power to recall and review his decision, the same rule must apply tC' the decisions of the secretary of the treasury under section 2931. So long as the appellate proceedings are pending before him and remain in his hands, any decision arrived at is, of course, inchoate only; but when this decision has been promulgated by order and Bent back to the collector, and, as in this case, acted upon by a reliquidation of the duties accordingly, then, if ever, the decision becomes "tinal and conclusive," 'tnd cannot be reviewed or set aside by him, nor be otherwise reversed than in the suit authorized by section 2931. This, again, is in conformity with the general rule of law on this subject applicable to special statutory tribunals. By the general rule such tribunals, when they have once rendered thtlir decisions, become functus officio as to the particular proceeding, and having no longer any jurisdiction of it, cannot recall or reverse "their decision. The subject has often arisen in the courts of this state in reference to various special statutory tribunals of a quasi judicial character, and the decisions are all to the above effect. In the case of Jermaine v. Waggener, 1 Hill, 279, where canal commissioners were authorized to adopt a plan for the construction of the Crooked Lake canal, and the commissionerfi, having adopted such plan pursuant to statute, undel'took to modify it by the allowance of a dubotitute for a portion of it, the court held that their latter acts were null and void. The court (COWEN, J.) says, (p. 284;) "The commissioners having once passed upon the qU6stion, their powers judicial. The adoption were 'tt an end. These powers were of a specific plan was but another name for the rendition of a judgment by a court of limited jurisdiction. Such a step is, in its nature, irrevocable, and incapable of modification." It was claimed that third persons should be protected who had acted under the new directions of the commissioners, but the court say, (p. 285:)
II That rule certainly cannot apply to a case where the judicial body is limited to a single act, and has become functus officio by its performance. Jurisdiction over the subject-matter thus ceases, and must be regarded, for all purposes, as if it never existed,"
The principle is the same although the board be a permanent one, to hear appeals of a certain class, where its jurisdiction is plainly special and limited. In the case of Woolsey v. Tompkins, 23 Wend. 324, where the judges of, the court of common pleas sat as an appellate court to review the proceedings of commissioners in laying out highways, NELSON, J., says, (p. 327:) "The reversal of the order of the commissioners and determination to layout the road were quasi judicial acts, and could not be reviewed or altered by the judge8;" though it was held that they might amend clerical mistakes in the record of their proceedings. The rule has been applied in the case of assessors undertaking to change assessments, (Clark v. Norton, 58 Barb. 434;) to the action of a board of supervisors upon reapportioning taxes, (see People v. Bd. Sup'rs Co. oj Schenectady, 35 Barb. 408, where POTTER, J., in his opinion, reviews most of the authorities in this state;) to the marine court of this city, as an inferior court, and its inability to vacate its own judgments, (.'l1artin v. The Mayor, etc., 20 How. Pro 86; The People. etc., v. The Marine Court, 12 Wend. 220;) toa referee's changing his report after it is once signed and declared, (Ayrault v. Sackett, 17 How. Pro 507;) and to a rehearing by a justice of the peace, (People V. Lynde, 8 Cow. 133.) These decisions do not rest upon any statutory provision making the action or decision of such special tribunals" final and conclu. sive." They all proceed upon an ·inherent want of power in such tribunals to recall or modify their judgments when once made aud declared; because, having performed their statutory duty, they lose jurisdiction of the subject-matter, and are junctus officio. The appellate jurisdiction of the secretary of the treasury under section 2tl31 is of the same special, statutory, and limited character; like that of the judges of the common pleas over commissioners of highways, in the case of Woolsey v. Tompkins, above cited, or such as the judges of the supreme court in this state were formerly supposed to exercise over the commissioners of real estate and assessment 011 taking land for streets in the city of New York. So long held that the judges of the supreme court, in reviewing as it such proceedings, did not act as the supreme court of the constitution, but only as commissioners of review, under a special statutory power, it was held that these judges could not recall or change a decision once made by them. Matte?' oj the'Mayor, etc., 6 Cow. 57]; In re Mount Morris Square, 2 Hill, 14. Even the United States courts, it is held, have no power, in the absence of statutory provisions, to review or annul their own final decrees after the expiration of the term at which they are rendered.
In v. Hunter's Lessee, 1 Wheat. 355, the court say: "A final judgment of this court is'supposed to be conclusive upon the rights which it decides, and no statute has provided any process by which this c'mrt can revise its own judgments." Schell v. Dodge, 2 Sup. Ct. U. S. v. Millinger, 7 FED. REP. 187; S. C. 19 Blatchf. 202. Rep. District courts sitting in admiralty cannot set aside their own decrtes, except as expressly authorized. The Illinois, 1 Brown, Adm. 13. The general principles of law applicable to special statutory tribunals, the uniform course of decision as to the binding character of .theirdetermjnations and their inability directly to rlJeall, review, or reverse them; except as specially authorized by law, are in accord with what seems to me to be also the language and the intent of section 2931 a.s to thebintling character of the secretary's decision on appeal, upon, both the government and the importer; and ji lollows, t.berefore,that judgment should be, ordered for the defendant.
UNITED STATES ex rel. DEMING v. HANCHETT, Sheriff.
(Oircuit Court,N. D.lllinois. October 1, 1883,)
1. 'MII,lTAltY SERVICE-ENLISTMENT OF MINORS. Section 1117, Rev. si;, being the 'first section of the act of May 15, 1872, pr/)o vides that" no person under the age of 21 years shall be enlisted or mustereu into the militarv service of the United States without the written consent of his parents or guardians, provided that such minor has parents or guardians entitled to his custody or control." 2. SAME-DESERTION BY MINOR- DI"cHARGE OF PERSONS ILLEGALLY ENLISTED. Although it is made the duty of the secretary of war to discharge any person illegally enlisted as a suldier, that delegation of power to the secretary of war does not deprive the courts of their power, prescribed bJ the constitution, to discharge under writ of habeas corpus.
William H. Shirland, ,for petitioner. No appearance by Hanchett. BLODGETT, J. The relator in this casa, by his petition to this court, alleges that he is a minor, under the agll of 21 years, and has parents living who are entitled to his custody ani control; that on the fourth day of August, 1883, at a recruiting station of the United States army in the city of Chicago, he assumed to enlist as a soldier in the United States army, and was mustered by the officer in charge of such recruiting station into the military service of the United States; that such enlistment and' musterwere wholly without the consent of relator's parents, who are entitled to his services; that within three days after Buch enlistment, and before he had been assigned to any military duty, he left the Tendezyous for recruits in this city, where he had been temporarily quartered, and did not "oluntarily return