Mr. Justice WOODBURY
delivered the opinion of the court.
This writ of error is brought by the collector of Boston to reverse a judgment rendered against him in favor of Thompson et al., importers of a quantity of railroad iron.
The judgment was, that he should refund $ 6,681.28, which had been exacted of the importers, on the ground that the iron was appraised more than ten per cent, above the invoice. The .first questions appearing on the record relate to rulings against the defendants, admitting certairrevidence that the appraisers were duly sworn, to which the defendants objected.
But as the defendants do not bring a writ of error on that account, the final judgment being in their favor, we proceed to consider the rulings and instructions of which the collector, who is the plaintiff here, complains.
The first ground of objection by him is the refusal of the court below to allow in evidence a letter from the Secretary of the Treasury, to show that the removal of one of the merchant appraisers was made by his order.
We think, however, that the removal of that appraiser must be deemed valid or not, as to third persons, according as the collector possessed legal power to make it on the facts of the case. The orders as well as the opinions of the head of the Treasury Department, expressed in either letters or circulars, are entitled to much respect, and'will always be duly weighed by this court ; but it is the laws which are to govern, rather than their opinions of them, and importers, in cases of doubt, are entitled to have their right settled by the judicial exposition of those laws,- rather than by the views of the Department. (Marriott v. Brune, 9 Howard, 634, 635.) And though, as between the custom-house officers and the Department, the latter must by law control the course of proceeding (5 Stat. at Large, 566), yet, as between them and the importer, it is well settled, that the- legality of all their doings may be revised in the judicial tribunals. (Tracy et al., v. Swartwout, 10 Peters, 95; United States v. Lyman, 1 Mason, C. C. 504; Opinions of Attorneys-General, 1015.)
Besides this objection, there are specific exceptions, taken to these instructions below, which deserve a separate and more detailed examination. Those instructions, as set out in the record, re, —
" 1st. That the date of the procurement of the iron in Eng-' iand -or Wales, to wit, the 24th of January, was the time at which the appraisers should have' fixed the value of the iron, and not the date of invoice and bill of lading, to wit, the 24th of February, when materially different.
"2d. That if both appraisers, in each set of appraisers, did not make some personal examination of tne iron, their report or decision was not made in conformity to law, and did not justify the penalty.
" 3d. That the valuation of the merchant appraisers was invalid, because one of the merchants who made the appraisal was wrongfully substituted for another, to wit, the merchant appraiser who was. turned out of office, .or attempted to be, without any legal authority to do.it on the facts of the.case."
The first of these instructions extends merely to the point of. law, whether the date of the procurement of the iron abroad was, by the acts of Congress, the proper time at which to fix the value of it, or the date of the invoice and bill of lading.
This has become a highly important question to the government, as well as the commercial world, under facts such as exist in this case, because a month had intervened here between the procurement and the shipment, and in the mean time, under one of those extraordinary fluctuations in prices which occasionally happen in trade, iron had risen nearly one fifth in value.
Ordinarily, the time of the procurement of an article, as also the time of the purchase of it, when it is bought and not manufactured by the importer, is near the date of the invoice or exportation, and the price, differing but little. Then, if selecting for the period of the appraisal the latter date, it is acquiesced in by the importer as immaterial. But where, as in this instance, the difference in time and value is great, the 'importer has a right to insist on the time as provided by the acts o'f Congress.
"Which is the proper time is, therefore, all that is involved in this first instruction, and not another question beside, which has been urged by the plaintiff' in error ; whether the chartering of the vessel in England to transport the iron here, after it was ordered; made, and collected for shipment by the'importers who manufactured it, should in point of law be deemed the time of its procurement. No charge below on that point is set out, none, therefore, can be revised here, however easily it could be settled.
After full consideration, we think that the time of procurement was the proper time for appraising the value, and it seems to us to have been stated., in the instruction in conformity with both the express language of several acts of Congress, and .the reason of the case.
The first leading act on this subject was passed March 1st, 1823. (3 Stat. at Large, 732.) Officers to appraise the value existed before only in the case of goods with no invoice, or damaged, or fraud suspected. (1 Stat. at Large, 41, 42, 166.) The invoice, with the oath of the importer, was previously the.chief guide.
But under an impression that goods were often undervalued in the invoice after the increased duties imposed in 1816, and that the revenue thus became diminished, it was provided by the sixteenth section of the act of 1823, that appraisers should be appointed to examine and estimate the true value of the merchandise imported. And to remove all doubt- as to the time when the value was to be fixed, it was expressly enacted in the fifth section, " that the ad'valorem rates of duty upon goods, wares, and merchandise shall be estimated in the manner following: to the actual cost', if the same shall have been actually purchased, or the actual value, if the same shall have been procured otherwise than by purchase, at the time and place when and where purchased, or otherwise procured, or to the appraised value, if appraised, except in cases where goods are subjected to the penalty provided for in the thirteenth section of this act, shall be added all charges, except insurance, and also twenty per centum on the said cost or value, and charges, if imported from the Cape of Good Hope, or any place beyond that, or from beyond Cape Horn, or ten per cem turn if from any other place or country ; and the said rates of duty shall be estimated on such .aggregate amount: Provided, that in all cases where any goods, wares, and merchandise, subject to ad valorem duty, shall have been imported from a country other than that in which the same were manufactured or produced, the appraisers shall value the same at the current value at the time of exportation in the country where the same may have been originally manufactured or produced." (3 Stat. at Large, 732.)
These words seem too plain for doubt, that the time to fix the value, in a case like this, when the goods have been procured rather than purchased, is the time of procurement, and when purchased, is the time of the purchase; and in neither case should be the date of the invoice or bill of lading, if they are at a different time.
It has been urged, however, in pursuance of a treasury circular of November 26,1846, that this act should receive a different construction, and that the true time is the time of exportation ; because that is named in the proviso, and thus is supposed to annul or modify all which precedes it.
But it seems to be overlooked, that the proviso relates to another kind of merchandise than that regulated before in the body of the section, the' former being expressly goods of an origin foreign to the country whence they are now to be imported, and the latter, goods not foreign"but of the growth or manufacture of the country from which they are imported hither.
As the time of the original procurement or purchase of tfre proviso goods in the country of their birth might have been years before, and difficult to fix, a new and different time is selected for them, namely, the period of their exportation to this country.
This distinction has been ever since preserved in our laws between these kinds of merchandise. See the sixteenth section of the Act of August 30,1842 (4 Stat. at Large, 564); see also Alfonso v. United States, 2 Story, 429, 430.
It would be very irrational to consider, such a proviso as a repeal or a change of the body of a section where it does not contradict it, but merely purports to regulate the appraisal of a different species of goods in a different manner. (See on this, 1 Kent, Com. 462, 463.)
The proviso does not pretend, in words or spirit, to interfere with goods situated like those contained in the shipment in the present case, and hence, instead of conflicting, it is in harmony and consistent. 23 Maine, 360.
As further proof that the time of the procurement was to remain the guide in cases like this, notwithstanding the provisó, the fourth section of this act continues in full force and unmodified, and requires the manufacturer or owner, as was done here, when importing, to swear that " the goods were not actually. bought by me in the ordinary mode of bargain and sale, but are of the value stated, including charges, &c., at the timé or times, and place or places, when and where procured for,my account." (3 Stat. at Large, 732.) See on this oath, 2 Story, 430.
So. the eighth section .still exists, and positively requires the oath of the importer, when, as here, a foreigner,-that "the invoice contains a true and faithful account of the said goods, wares, and merchandise, at their fair market value at the time and place when and where the same were procured or manufactured, as the case may be, and all charges thereon." 3 Stat. at Large, 733.
Other similar illustrations of this might'be cited, but are not necessary , to support this obvious position, that the time of procurement's the true time for fixing the value, when the goods are manufactured or procured otherwise than, by purchase, and are npt of an origin foreign to the country whence they are imported hither. Indeed, it would seem reasonable, independent of the express language of the acts of Congress, that, if uncertainty remained about the true construction of the fifth section of the. act of 1823, the proper time for fixing the value of goods should be considered the time they were-purchased or procured; because the idea of having the" value and charges fixed, and assessing the- duty on them, is to tax the importer on the amount or value he has expended. And what he has expended cannot be more than what he has thus paid ; and the invoice itself; often prepared, as in the interior, days and weeks before the vessel sails, states the price or value as thus made up, and not at the time of the bill of lading, when the market value may be higher or lower.
We do not find that the value at the time of exportation of goods of the growth or manufacture of the country whence exported, has ever been selected by any act of Congress for thé purpose of assessing the duty. Though in one instance it is adopted merely to compile statistical tables of the value of foreign imports (3 Stat. at Large, 542), it is never done to regúlate duties.
The value for statistical purposes it is reasonable to fix at the time of .exportation, because it thus indicates .the worth of all shipped hither, which is what is then desired ; but the value on which to tax the importer is the capital or price he has invested in the goods, which is prima facie the amount paid, if purchased, or the amount for which they were procured, if not purchased.
There is another'objection in -this case to the applicability of the act of 1842, if construed to affix ihis penalty to an undervaluation of goods, procured otherwise than by purchase. (See § 16,17 ; 5 Stat. at Large, 563, 564.)
That act applies expressly only to goods " purchased." So the act of 1846, July 30, applies only to goods " actually purchased." See § 8, page 43, Pamphlet Laws for 1846.
They thus appear to, leave goods, procured other ways than by purchase, to the provisions of- the acts of 1823 and 1830, which do not at all affixitlre penalty here exacted, looking to the valué, whether when procured ó. when exported.
Especially in a penal provision, it could not seem judicious, any more than'legal, to extend it beyond the clear-language of the act. (See cases in Maxwell v. Griswold, post, p. 242.) But on this objection, growing out of the words of the act of 1842, it is hardly necessary to give a decisive opinion) as the instruction to the jury does not in form' cover it; and on the other ground, the appraisal is palpably erroneous, on account of its being made as of the wrong time.
The second general instruction excepted to is, that the appraisal was in valid,"'because not made on a personal examination of any of the goods by all of those certifying to its correctness. .
It is almost impossible to adopt anyother construction of the acts of Congress, or of the analogies of the case. Those acts expressly require, that the appraisers should inspect or examine a portion of the goods pointed out by the collector. 4 Stat. at Large, 410; 3 Stat. at Large, 736; 5 Stat. at Large, 565..
The oaths administered to them are, " diligently and.faithfully to examine the goods," &c. Act of 1823, §. 16 (3 Stat. at Large, 735).
So of the assistant appraisers, the oath is in like words! (4 Stat. at Large, 409).
In this'very case the appraisers swore " diligently and faithfully to examine .and inspect said lot of railroad iron," and reported thatwe have examined" it, &c., when the record states, that one of the merchant appraisers " never saw the iron," and one of the 'permanent appraisers did not " examine," and " did not inspect or see the iron."
Besides this, it would be unreasonable to overturn the invoices and oaths of importers, unless by a personal inspection and examination ; ,an insufficient value should clearly appear to have been affixed, considering the quality'of the article first, and next the market value abroad of articles of that quality, at the time required by law.
' But it has .been'urged, that if one examines and reports to the other that the article is " merchantable," the other can correctly fix the value,(by knowing-the value of what is merchantable.
The answer to this. 5s, that the law requires the quality to be fixed by inspection or examination, and not alone by evidence, or opinion of others.
Again, too, an article may be barely merchantable, and yet not be worth-so much as one that is not only merchantable, but on the brink of being better than merchantable. A personal examination, therefore, is proper for making such discriminations in quality and value.
It is further urged against our construction, that a sufficient force does not exist in most custom-houses for all the appraisers to make personal examinations, or all-the assistant, appraisers to do it. There are two answers to this. If officers enough to perform these public duties do not exist, more should be authorized, or their duties to examine in person should ' be dispensed with by an act of Congress. Again, the collector need detail no more officers to make the appraisal than can be spared, or than the law imperatively demands. All we hold is, that such as are detailed in a particular case should do their duty,' in the manner which their oaths require; and it would be a novelty for courts to countenance one' or more persons, if undertaking a duty in. such a case, to be exonerated from it because it was burdensome or difficult.
There is, too, a sufficient answer to another objection, that, if a personal examination was required of every article, time enough would not exist for the purposé. For the acts of Congress do not require every article in a package to be examined. A fair selection of specimens or samples is made sufficient. (3 Stat. at Large, 735, § 15.)
The instruction by the court below on this point is, therefore, the only one tolerated by the language of the acts of Congress and the oaths of the appraisers, though a different usage may have grown up at some ports, without intending any thing negligent or wrong.
The only remaining question is, whether the removal of one of the. merchant appraisers, and the substitution of another, who estimated the value, was not on the facts of this case irregular, so as to make their appraisal invalid.
The court below instructed the jury it was so. We feel constrained, by the law and reason of the case, to concur in that view. The person removed was one selected as a member of an appellate .tribunal, to revise the value estimated by the regular appraisers, and he was removed and another appointed, as the record shows, not for any misconduct discovered, or^tny incompetency intervening, by act of God or otherwise, but merely because he wished time given to obtain more evidence from England, which might justify a lower estimate.
Now, without saying what might be proper in case of a strictly public officer, quasi judicial and misbehaving, as nothing was ruled on that point below, and indeed without holding what might.be competent in case of an arbitrator or referee, public or private, becoming corrupfed or incapable, as the ruling did .not apply to that case, we'are satisfied that the allowance of an appeal to merchant appraisers by the importer would be nugatory, or a mockery, if a member of the tribunal can be removed by the collector or Secretary whenever his opinion appears not likely to accord with theirs on the matter submitted. He is, as to that, a quasi judge, a " legislative referee." Rankin v. Hoyt, 4 Howard, 327.
And an interference with such a referee for süch a cause would conflict with all just notions of judicial independence,.'or judicial purity, and when done and sanctioned as to a publiereferee, it might shake confidence abroad as well as at home in the administration of our revenue system, as connected with commercial imports. In all free countries, public sentiment is much shocked by any interference with judicial duties, tending to warp them. And more especially, if so made as to be likely to influence a pending question in favor of those interfering, and actually ending in the removal of a judicial incumbent merely for an opinion expressed- in the course of the case which was not agreeable.
Again, the merchant appraisers here can hardly be considered public officers at all, in the ordinary acceptation of the term. One of them was formerly selected by the importer alone. Neither of them now holds a commission, nor are they selected to discharge generally public duties of a certain character.
Bat they are mere umpires between the permanent appraisers- and the importers, when disagreeing as to the value in some particular case ; and it is difficult to see how, when third persons are interested in their decision, the other side, whether represented by the collector or Secretary, could, without the consent of those third persons, or without some grave public ground beyond a mere difference of opinion, remove an umpire, and thus attempt to change the award about to be made.
Though some very culpable cases of removals of public- judicial- officers occurred in England before her revolution, during the arbitrary reign of the house of Stuart, and led for security to a change in the tenure of their offices from the pleasure of the king to good behaviour, yet nothing of the kind seems since.to be countenanced, here or there, for mere difference of opinion. And the course pursued in the present instance was probably the result of not adverting to the judicial character of a merchant appraiser, or of a misapprehension as to the duty and right to do the act, only for requesting delay to obtain more evidence, rather than arising from any intentional abuse of power.
The delay, asked for the benefit of the importers, was also to prevent a penalty; and in such a case, when doubts exist, the respondent is to be favored. (7 Peters, 453 ; .1 Baldwin, C. C. 317.) The removal, made to avoid this delay of further evidence against the forfeiture, was likewise in the case of merchants and manufacturers of -apparently high respectability, and without a' particle of evidence indicating any intent by them to defraud the government.
Almost the whole system of appraisals is founded on tne idea, that fraud has been, or is likely to be, practised. And while this court has never been backward in ferreting out and punishing real frauds attempted on the revenue, yet, at the same time,'where no dishonesty is pretended, but a disposition appears in the importer to conform to the laws, he is entitled to fujl legal protection, else fair 'commerce between us and the rest of -the world will be 'discouraged, and our national- character tarnished.
The government, too, could not suffer by the delay asked here, as they, in the' mean time, would hold the goods, unless the increased duties on the highest appraisal, and the penalty, were paid to them.
The judgment below is affirmed.
Order.
This cause came on to be heard on the transcript of the record f"om the Circuit Court of the United States for the District of Massachusetts, and was argued by Counsel. On consideration whereof, it is now here, ordered and adjudged by" this'court, that"the judgment of the said Circuit Court in this cause be, and the same is hereby, affirmed, with costs and damages at the rate of six per centum per 'annum.