to the dutiable value of the merchandise, against all parties interested therein.

There is nothing in the instructions of the Secretary of the Treasury, or in any of the regulations prescribed, or in the evidence in this case, which shows that the appraisers were not free to perform their duties properly, as required by the statute. The reappraisers appraised the goods in the appraisers' room in the public store. On the day before the reappraisement took place, the agent of the plaintiffs received due notice of it, and he attended and was called by the reappraisers before them. The merchant appraiser had then and there samples of the plaintiffs' goods, and the general appraiser asked the agent for his statement in the case, and it was made. The samples were on the table before the merchant appraiser, and the cases of goods were in the adjoining room. The agent made no objection as to the proceedings, and testifies that he was allowed to make a full statement concerning the value of the plaintiffs' goods; and the evidence fails to show that any request was made on behalf of the plaintiffs which was refused, except the request to find the value which the plaintiffs desired to be found. It is contended for the plaintiffs that the merchant appraiser is an officer, and an inferior officer, who, under article 2, section 2, of the Constitution could be appointed only by the President, or by a court of law, or by the head of a department. In the present case, the selection of the merchant appraiser, his oath, and the manner in which he and the general appraiser discharged their duties, were in compliance with the statute and with the Treasury regulations; but it is urged that the manner of appointing the merchant appraiser was illegal. The merchant appraiser is an expert, selected as an emergency arises, upon the request of the importer for a reappraisal. His appointment is not one to be classified under the civil service law, he is not to be appointed on a competitive examination, nor does he fall within the provisions of the civil service law. He is not a "clerk," nor an "agent," nor a "person employed," in the customs department, within the meaning of section 6 of the civil service act; nor is he an officer of the United States, required to be appointed by the President, or a court of law, or the head of a department. He is an expert, selected as such. Section 2930 requires that he shall be a "discreet and experienced merchant," "familiar with the character and value of the goods in question." He is selected for the special case. He has no general functions, nor any employment which has any duration as to time, or which extends over any case farther than as he is selected to act in that particular case. He is an executive agent, as an expert assistant to aid in ascertaining the value of the goods, selected for the particular case on the request of the importer, and selected for his special knowledge in regard to the character and value of the particular goods in question. He has no claim or right to be designated, or to act except as he may be designated. The statute does not use the word "appoint," but uses the word "select." His position is without tenure, duration, continuing emolument, or continuous duties, and he acts only occasionally and temporarily. Therefore, he is not an "officer," within the meaning of the clause of the Constitution referred to. (United States v. Maurice, 2 Brockenbrough, 96, 102, 103: United States v. Hartwell, 6 Wall. 385, 393; United States v. Germaine, 99 U. S. 508, 510, 511; Hall v. Wisconsin, 103 U. S. 5, 8, 9; United States v. Mouat, 124 U. S. 303, 307; United States v. Smith, Id. 525, 532.)

The present question is very much like that considered in United States v. Germaine. In that case, under section 4777 of the Revised Statutes, the Commissioner of Pensions was empowered to appoint civil surgeons to make a periodical examination of pensioners and to examine applicants for pensions. The question arose whether a surgeon so appointed was an officer of the United States, whose appointment was required to be made by the President, or a court of law, or the head of a department. This court held that he was not, and said, referring to the case of United States v. Hartwell: "If we look to the nature of defendant's employment, we think it equally clear that he is not an officer. In that case the court said, the term embraces the ideas of tenure, duration, emolument, and duties, and that the latter were continuing and permanent, not occasional or temporary. In the case before us the duties are not continuing and permanent, and they are occasional and intermittent. The surgeon is only to act when called on by the Commissioner of Pensions in some special case, as when some pensioner, or claimant of a pension, presents himself for examination. He may make fifty of these examinations in a year, or none. He is required to keep no place of business for the public use. He gives no bond and takes no oath, unless by some order of the Commissioner of Pensions of which we are not advised. No regular appropriation is made to pay his compensation, which is two dollars for every certificate of examination, but it is paid out of money appropriated for paying pensions in his district, under regulations to be prescribed by the Commissioner. He is but an agent of the Commissioner, appointed by him, and removable by him at his pleasure, to procure information needed to aid in the performance of his own official duties. He may appoint one or a dozen persons to do the same thing. The compensation may amount to five dollars or five hundred dollars per annum. There is no penalty for his absence from duty or refusal to perform, except his loss of the fee in the given case. If Congress had passed a law requiring the Commissioner to appoint a man to furnish each agency with fuel at a price per ton fixed by law high enough to secure the delivery of the coal, he would have as much claim to be an officer of the United States as the surgeons appointed under this statute.”

This case does not present any question like that of substituting a new merchant appraiser for one already selected, as in Greely v. Thompson. (10 How. 225;) nor is it a case where the appraiser did not see the original packages, as in Greely's Administrator v. Burgess, (18 How. 413;) nor a case where it was offered to show that the merchant appraiser was not a person having the qualification prescribed by the statute, as in Oelbermann v. Merritt, (123 U. S. 356,) and in Mustin v. Cadwalader, (123 U. S. 369;) nor a case where it was contended that the appraisers did not open, examine, and appraise the packages designated by the collector, as in Oelbermann v. Merritt; nor a case where to the admitted market value of an importation there was added such additional value as was equal to a reduction made in the valuation of the cases containing the goods, as in Badger v. Cusimano, (130 U. S. 39.) Those were instances of errors outside of the valuation itself and outside of the appraisement prescribed by the statute.

Nor is there anything in the objection that section 2930 of the Revised Statutes is unconstitutional in making the decision of the appraisers final, and that the plaintiffs had a right to have the question of the dutiable value of the goods passed upon by a jury. As said before, the

government has the right to prescribe the conditions attending the importation of goods, upon which it will permit the collector to be sued. One of those conditions is that the appraisal shall be regarded as final; and it has been held by this court, in Arnson v. Murphy, (109 T. S. 238,) that the right to bring such a suit is exclusively statutory, and is substituted for any and every common law right. The action is, to all intent and purposes, with the provisions for refunding the money if the importer is successful in the suit, an action against the government for moneys in the Treasury. The provision as to the finality of the appraisement is virtually a rule of evidence to be oberved in the trial of the suit brought against the collector.

The uniform course of legislation and practice in regard both to the mode of selection of the merchant appraiser and as to the conclusive effect of the appraisal, are entitled to great weight. (Stuart v. Laird, 1 Cranch, 299, 309; Martin v. Hunter's Lessee, 1 Wheat. 304, 352; Cohens v. Virginia, 6 Wheat. 264, 418, 421; Cooley v. Board of Wardens, 12 How. 299, 315; Lithographic Co. v. Sarony, 111 U. S. 53, 57; The Laura, 114 U. S. 411, 416.)

The plaintiffs complain of the exclusion, as evidence, of a paper, Exhibit No. 14, being a report received by the collector at New York from the United States consul at Horgen, in Switzerland, dated February 25, 1886, and purporting to be a memorandum made by one Schmid, a government silk expert, concerning certain undervaluations of merchandise covered by invoices of goods to C. A. Auffmordt & Co., which embraced the goods in question. The paper was excluded by the court on the objection of the defendant that it was immaterial and irrelevant, and the plaintiffs excepted. It does not appear that the paper was used upon either of the appraisals, and, if it had been, it Would have been proper to use it, as advising the officers of the government of the cost of the goods in question. It was properly excluded. The other questions discussed at the bar have been fully considered, but it is not considered necessary to comment on them.

True copy.-Test: Clerk Supreme Court U. S.

(10605.)

Judgment affirmed.

Erpenses incurred for the care and support of detained immigrants to be paid by the owners of the importing vessels.

TREASURY DEPARTMENT, January 17, 1891. SIR: The Department is in receipt of your letter of the 3d instant, in which you ask, "Are steamship companies liable to pay necessary expenses for immigrants before they are duly landed?" and stating that you have in several instances presented bills to the agents of steamship companies for expenses incurred in the care of immigrants who have been injured on board ship. * * *

In reply to your question, you are informed that the Department has uniformly held that the steamship companies are liable for expenses incurred in rendering aid to detained immigrants before they are duly landed. As instances of this, your attention is called to Department

letter of July 22, 1890, in reply to a proposition from you by which steamship companies should be made to pay for the services of the surveyor's officers while guarding barred immigrants. You were therein informed that "the steamship companies are liable for all expenses for the services of Government officers employed in guarding barred immigrants from the time of their arrival until their departure.” Also to Department letter of October 1, 1890, which is more pertinent to the present question. *** In this case you were informed that it is held that the steamship companies are liable for all expenses incurred in guarding and feeding and lodging barred immigrants pending the decision of the collector." *

As to the liability for expenses incurred for immigrants who have been detained and subsequently allowed to land, a case in point occurred at the port of Philadelphia, wherein an immigrant suffering from diarrhoea was removed from the vessel to a hospital for treatment, and after recovery was discharged from custody by the immigration officials. The bill for his board and treatment was paid by the Commissioners of Immigration. In this case the Department, under date of November 28, 1890, in a letter relative thereto, advised the Commissioners as follows:

Hereafter, in cases of this class, no immigrant is to be allowed to leave the vessel for the purpose of receiving hospital treatment or any temporary relief at the expense of the immigrant fund. If an immigrant is found to be sick or disabled, he must not be allowed to leave the vessel except on the distinct understanding that the expense for his or her relief shall be provided for and paid either by the agent or owners of the vessel or by the friends of the immigrant, whether the latter shall be permitted to land or returned as prohibited from landing.

Notwithstanding it is claimed by some that the clause in section 2 of the immigrant act, which reads "for the relief of such as are in distress," is intended to meet cases of want occurring previous to landing in the United States, the Department is of the opinion that the language used (such as are in distress') in directing to what uses the headmoney is to be applied, when taken in connection with other clauses in sections 2 and 3, applies only to such immigrants as may secure a landing, under the law and the regulations of the Secretary of the Treas ury. According to the construction of the Department, sanctioned by the courts, immigrants are not, strictly speaking, landed until they are discharged and permitted to land by the proper officers, and consequently not considered as having arrived in the United States until thus permitted to land.

Respectfully yours.

WILLIAM WINDOM,

Secretary.

Hon. JOHN B. WEBER, Superintendent of Immigration, New York City.

(10606.)

Fish caught by means of nets, etc., owned by a Canadian fish company not

free.

TREASURY DEPARTMENT, January 17, 1891.

SIR: In reply to your letter of the 10th instant, you are informed that if the nets or other devices mentioned therein are the individual property of Mr. C. E. Warner, a resident of your city and a citizen of the United States, the fish caught thereby will be entitled to free entry under paragraph 571 of the free list, act of October 1, 1890.

If, however, such nets or other devices are the property of the Manitoba Fish Company (a company chartered under the laws of Canada. and composed principally of foreign stockholders), and the title in such nets or other devices is merely vested in Mr. C. E. Warner as a stockholder, or for the benefit of said company, the fish caught thereby are not the product of American fisheries, or entitled to free entry under paragraph 571 above referred to.

You will, in all cases, refuse the free entry of fish where the proof of the ownership of such nets or other devices is not entirely satisfactory

to you.

As regards the rights of an American corporation under paragraph 571, you are informed that the rights of American corporations and American citizens are identical, as will appear from an inspection of the recent decisions of the Board of General Appraisers on this subject. * * *

Respectfully yours,

COLLECTOR OF CUSTOMS, Detroit, Mich.

O. L. SPAULDING,

Assistant Secretary.

(10607.)

Boxes containing philosophical apparatus.

TREASURY DEPARTMENT, January 17, 1891.

SIR: The Department duly received your letter of November 7 last, submitting the appeal, 9311 t, of Messrs. J. W. Queen & Co. from your assessment of duty, at the rate of 45 per cent. ad valorem, on certain socalled cartons containing philosophical apparatus, imported by them per Indiana, February 11, 1890 (protest filed prior to August 1, 1890),