Mr. SULLIVAN. The collector first makes a rate, and then the party aggrieved, not being satisfied with his classification, protests, and that is filed, as you see on the first page of this document. The administrative act provides that all papers, including the invoices, are to be forwarded to the board for examination and determination. Mr. GREEN. You pass on any case without the formal appearance of counsel, upon the filing of a protest?

Mr. SULLIVAN. Yes, sir. The party may proceed without a counsel, or he may employ a counsel if he wishes.

Mr. GARNER. Really, in the majority of cases they have no counsel to appear for them?

Mr. SULLIVAN. I would not say that, Mr. Garner. I would not say the majority. There may be many, and there are many, especially outside of the city, but as a rule they have a counsel. The customs bar is composed of 40 prominent members, and some of them appear in the vast majority of cases.

Mr. GARNER. But I was talking about the poor people down on the border, where I live.

Mr. SULLIVAN. That is correct. They can present the case if they wish to without a counsel..

Mr. YOUNG. I will say, Mr. Garner, that I presented a case. I simply did that by writing a letter and I did not say that I was a lawyer, or that I was appearing that way, and they gave me a hearing and my case received favorable consideration.

Mr. SULLIVAN. Mr. Garner, we hold hearings in different parts of the country. We have held hearings, very extended hearings, at El Paso, and we have held hearings at Laredo, and we did have prior to the war, when there was considerable importation of goods from Mexico, quite extensive hearings at El Paso.

The law of 1909 provides for the hearings to be held outside of the city; but you are all familiar with that.

I want to make a suggestion, one not in behalf of the entire membership of the board, not on behalf of the Board of Appraisers, but as a citizen of the United States on some matters that will probably come before your committee, and upon a subject which is covered in the report of the Tariff Commission.

Mr. GREEN. I think, Mr. Sullivan, that I can say with the approval of the chairman of the committee that any suggestions you may make along any line, in view of your experience, for improvement as to the administrative features of the bill the committee will be very glad. to hear them.

Mr. HAWLEY. Did you state for the record your official position? Mr. SULLIVAN. I am a member of the Board of United States General Appraisers, and under the law there must be some one to act as president, to make assignments, and I hold that position, but there is no preference. We are all equals.

Mr. HAWLEY. How many members are there on the board?
Mr. SULLIVAN. There are nine.

The first board, as you will recall, prior to 1890, under the administrative act of June 10, 1890, consisted of one general appraiser, and then two merchant appraisers. The merchant appraisers were appointed by the collector, and that was not found, evidently, to be

satisfactory, and the act of 1890 was created. Prior to that time the meetings were secret. A merchant did not know what evidence was produced by the Government, but the Government always knew what evidence was produced by the merchant; since that time they have held open hearings, and the record has been made and completed in every way and in the presence of the witnesses and the presence of the parties. I have in my mind one or two matters, and especially paragraph I of the present act, and paragraph 90 in the report of the Tariff Commission.

The CHAIRMAN. Do those open hearings add materially to the burdens of the court?

Mr. SULLIVAN. No, they do not; but it makes the matter much more satisfactory to everyone concerned. To hold secret meetings or to hear witnesses secretly with reference to the value of merchandise, Mr. Chairman, is very unsatisfactory.

The CHAIRMAN. Then you approve of holding open hearings?

Mr. SULLIVAN. Oh, yes; very much. The importer puts his witnesses on the stand, and the Government is enabled to cross-examine them, and the importer is also enabled to cross-examine the witnesses put on by the Goverenment, and the importer may produce as many witnesses as he wishes, and we have all of that in the report. I think it has proved entirely satisfactory, and I know that I have the approval of the members of the board in saying that it is a better way than the old way of examining witnesses privately.

The CHAIRMAN. I am glad to hear you say that, Judge.

Mr. SULLIVAN. Now, with regard to paragraph I of the tariff act of 1913, which has caused considerable trouble. There is in that what is known as the clause "clerical error"-that is, the law provides that there may be a correction of an entry on an invoice, where you have an error, if it is manifest, and the courts, have construed what "manifest" means, it must be apparent on the face of the record. Now, there may be in fact an error and that it is a hardship to impose the additional tax on the importer, but the error is not manifest, and therefore we can not give relief.

I hold in my hand a recent opinion of the Court of Customs Appeals where that matter was brought out very clearly, and where a very great hardship was caused upon the importer. I can not recall the name now. The case is entitled "United States against Rivers," I think, bringing merchandise from Canada, where there was an absolute error, admittedly, but it was not manifest on the face of the paper. Mr. GREEN. Will you say how the term "manifest" is construed? What is its construction?

Mr. SULLIVAN. It has to be apparent on the face of the record. You can not get evidence outside the record to establish that there is

an error.

Mr. GREEN. No matter how well satisfied you are that there is an error, and how well it is established by the testimony, it is not considered?

Mr. SULLIVAN. No, sir; and the board is not permitted to exercise any discretion, Judge Green.

Mr. HAWLEY. Is it where the error is with reference to the number of items on the invoice?

Mr. SULLIVAN. Or, it might be, as an example, it may be that the exporter intended to put down the figure 3 and that figure 3 was

correct, but he put down the figure 4. Now, that is not manifest on the face of the papers, and therefore we can not correct it.

The board is divided into three boards, as you understand. The board is divided up, the membership of the board, with three members on each board. We could not all sit together and ever get through with any business.

I have brought along the record in the case of the United States v. George F. Rivers, October term, 1920, United States Court of Customs Appeals, because I thought you might like to have it for your general information. That is a case where the board determined that an error was manifest, and that it imposed a great hardship upon the importer, sustained the protest and directed the collector to relíquidate entry omitting therefrom the assessment of additional duty, from which judgment the Government appealed. The judgment of the Board of General Appraisers was reversed. The General Appraisers thought that that was such a clerical error that it ought to be corrected, but, in view of the authorities which the Court of Customs Appeals had, they reversed it.

Mr. HAWLEY. I wish you would put that in the record as a part of your testimony. I believe it would be of value to the committee. Mr. SULLIVAN. Yes, sir. The record is as follows:

UNITED STATES COURT OF CUSTOMS APPEALS.

October term, 1920, calendar No. 6, suit No. 2028.

The United States, appellant, v. George F. Rivers, appellee.
Barber, J.

The facts in this case, as we understand them, are as follows:

On the 24th day of December, 1918, Lymans, Limited, of Montreal, Canada, deliv. ered to the American Railway Express Company a quantity of Esperia essential oil consigned to V. Vivaudou, Inc., at New York City. The shipment was by way of Rouses Point. Mr. Kercher, a customs house clerk for Lymans, Limited, on the 19th day of the same December made an invoice of the merchandise as purchased by V. Vivaudou, Inc., from Lymans, Limited. The invoice stated the quantity to be 31.25 kgms., the price per unit to be 9.46, the total amount $295.63, plus a duty of 7%, described the goods as made in France, and contained the words "In bond. For immediate transportation without appraisement." Thereon in red ink are entries made by customs officials as follows:

Rouses Point, N. Y., Jan. 28, 1919.

Appraised at $48.25 per kilogram, $1,507.81, 20%, par. 49.

H. S. Ladd, appraiser.

Jan. 28, 1919. Quantity correct and value noted. W. S., inspector.

This invoice was duly certified by the American Vice Counsul December 19. The declaration of the purchaser, among other things stated, that "it is intended to make entry of said merchandise at the port of New York. In due course it reached Rouses Point and there was entered for consumption on the 27th day of December by George F. Rivers. His entry stated the value of the merchandise to be $296, the rate to be 20 per cent and the duty $59.20. The red ink notations thereon showed that the appraiser appraised the merchandise at $1,508, stated the duty to be $301.60, the increased duty $242.40, the additional duty, at 75 per cent, to be $1,131, totaling $1,373.40, and that it was advanced 409 per cent.

Mr. Rivers was called as a witness on behalf of the importer, and testified without contradiction, that he was agent for the American Railway Express Co. at the date he made the entry; that he had no personal knowledge of its value at that time, and no request or authority from Vivaudou to make the entry; that he acted as broker for the express company and handled shipments coming through that port destined to the United States; that the reason why he made the consumption entry was, that "The American Railway Express Co. has issued instructions to my office not to handle shipments for immediate transportation to New York only on account of the congestion down there:" that prior to January 28, 1919, he had no conversation with the appraiser or the customs authorities respecting the value of the con

signment, and that the first he knew of any question about it was when he got the notice of advance.

On January 3, 1919, Vivaudou wired and wrote Lymans, Limited, that the price stated in the commercial and consular invoices should be $48.25 instead of $9.46 per kilo, asking them to make new commercial and consular invoices, and immediately give the customs house at Rouses Point the necessary data to release the goods.

On the following day Lymans, Limited, complied with this request by enclosing to the collector at Rouses Point a corrected invoice stating the unit value to be $48.25 per kilo, amounting to $1,507.81, to which it added what was evidently a Canadian duty of 7%, amounting to $113.10, aggregating a total value of $1,620.91, with the following words below the description of goods "Made in France. Bond."

On January 14, 1919, Vivaudou wrote to the collector at Rouses Point, among other things stating the date of shipment from Montreal; that on account of the error in the consular invoice the goods had been detained at Rouses Point; that a customs house inspector had been to see them to investigate as to the correct price of the goods, concerning which they had given him a bill from their principals in France, and that inasmuch as the original invoice was stamped for immediate exportation without appraisement, they could not see why the goods were detained.

On the 15th of January a deputy collector at Rouses Point wrote to Vivaudou acknowledging receipt of the above letter, advising Vavaudou that the goods were entered for consumption December 27th, 1918, at a valuation of $296 and held for appraisal, that about January 5, 1919, a corrected consular invoice had been received from Lymans, Limited, giving the value, including the Canadian duty, to be $1,620.91; that on January 12th Rivers, agent of the express company, had made application to amend the entry, explaining how the error was made; that as his cffice had no authority to amend entries it had been submitted to the collector of customs at Ogdensburg, N. Y., who doubtless had submitted it to the department, but whether the department would authorize the amendment the writer was unable to say; that if not the shipment would bear an additional duty which would be 75% of the appraised value, and an increased duty, and the merchandise subject to seizure, and that it would be held until the department's reply was received.

Thereupon, on January 22nd, Vivaudou wired the collector of customs at Ogdensburg to expedite the shipment.

On January 24th the collector at Ogdensburg wrote Vivaudou that the department at Washington, to which the matter had been referred, held the amendment could not be made, because it appeared that the application therefor was filed subsequent to the time the invoice and merchandise had come under the observation of the appraiser.

The entry was liquidated July 25, 1919. Sometime thereafter the assessed duties were paid, and on August 18th following a protest was filed in the name of Rivers, agent for Vivaudou, ultimate consignee, alleging that a manifest clerical error was committed in the invoice and entry of the merchandise, by reason of which no increased and additional duty should have been assessed.

The corrected invoice from Lymans, Limited, to the collector at Rouses Point, as shown by the foregoing correspondence, was not forwarded by the collector to the Board of General Appraisers with the protest, but was produced at the hearing by the importer and considered by the board. This invoice was also made by Mr. Kercher, who testified that the $295.63 entry in the first invoice was wrong. Explaining the error he said:

*
*

*

"In sending down the papers for entry there was no dollar and cents sign to the invoice. The shipment came from France in the first place and was made out in francs. Not knowing that this was the figure, that the amount was sent down to me to make the invoice from was made out in dollars and cents, I took it for granted it was still francs, and converted that into Canadian money. *. The figures should have been 31.25 kilograms, at $48.25 per kilogram. * * $1,507.81." It appeared from his testimony that 48.25 francs would equal $9.26 Canadian money; that upon receipt of the telegram and letter from Viviadou under date of January 3rd, above referred to, he made out for Lymans, Limited, the corrected invoice in accordance with the request of Viviadou, and forwarded it to Rouses Point. This corrected invoice contained a correct statement of value, as already appears. As we understand, there is no disagreement that before this corrected invoice was furnished the original invoice and merchandise had come under the observation of the appraiser, and he had started an investigation to determine the correctness of the invoice and entered value. He did not, however, conclude the appraisement until afterwards, and in fact appraised the merchandise at the value stated in the corrected invoice, upon which the entry was liquidated.

Upon these facts the Board of General Appraisers, impressed, as we are, that the payment of the liquidated amount imposed a great hardship upon the importer,

sustained the protest and directed the collector to reliquidate the entry, omitting therefrom the assessment of additional duty, from which judgment the Government appealed.

It is unnecessary to discuss the question of manifest clerical error. In United States v. Swedish Produce Co. (4 Ct. Cust. Appls., 223; T. D. 32760) we held that it could not be established by proof dehors the record. In United States v. Wyman (4 Ct. Cust. Appls., 264; T. D. 33106) it was held that when an entry was made just as the entrant intended, and carried the intended signification to the mind of the collector, manifest clerical error was not established.

-; T. D. 38373)

In the case of Consmiller v. United States (10 Ct. Cust. Appls., many of the cases upon this subject are collated and may be referred to. We attach no importance to the corrected invoice, because it clearly appears that the application to amend the entry pursuant thereto was not made in time. The ob vious purpose of amending was to raise the entered value. In the Consmiller case we held, in view of the express language of Paragraph I of section 3 of the act of 1913, that an importer can not after either the invoice or the merchandise has come under the observation of the appraiser make additions in the entry to or deductions from the cost or the value given in the invoice, and we are still of opinion that the statute expressly so prohibits.

If it could be regarded that the entry was made by Lymans, Limited, and proof dehors the record be considered, the testimony of Mr. Kercher shows that he made the figures upon the invoice just as he intended them to be, and there is no claim that Rivers, in making the entry, did not place therein the figures that he intended, or that in either case the intended signification was not correctly carried to the mind of the collector.

The importer's counsel further contends that the fact that Rivers made a consumption entry without any authority, and contrary to the statement contained in the consular invoice that the goods were "For immediate transportation without appraisement" constitutes a manifest clerical error. In support of this contention early decisions reported in Federal cases are cited. He urges that an error not attributable to the real importer, but to what he characterizes as the act of "an unauthorized intermeddler warrants us in sustaining the protest upon the ground of manifest clerical error.

Some of the cited cases are, as to the facts, quite analogous to this, but a comparison of the statutes then and now in force leads us to the conclusion that they are inapplicable.

If, when knowledge that an unauthorized consumption entry had been made was brought home to the interested parties, it had been disavowed and an entry for transportation in bond been tendered, it is likely this case would not have arisen. It can not be assumed that the proper entries would have been refused, and the importers compelled to proceed under the unauthorized entry, because that would seem to savor of duress. Vivaudou, however, knowing all the facts, appears to have adopted the consumption entry made by Rivers, and is now litigating the liquidation made thereunder in his name as their agent. This seems to render the claim that he was "an unauthorized intermeddler" somewhat inconsistent. However this may be, the protest is definitely confined to a claim for relief upon the ground of manifest clerical error. We think it is not such.

There is no claim of bad faith or of an attempt to defraud the Government, and Vivaudou apparently has been compelled to pay money which in justice ought not to have been demanded. Equitably reimbursement from some source ought to be made, but we are powerless to grant relief.

The judgment of the Board of General Appraisers is reversed.

UNITED STATES COURT OF CUSTOMS APPEALS.

October term, 1920, Calendar No. 6, suit No. 2028.

The United States, appellant, v. George F. Rivers, appellee.

CONCURRING OPINION.

It seems to me that this case upon proper protest could well be ruled by Stein v. United States (1 Ct. Cust. Appls., 36; T. D. 21007) and particularly on rehearing, at page 478.

The basic facts of this case are in principle the same. The entry herein was made without knowledge of the owner of the goods by one who was not in any way constituted as agent, and in violation of the declaration upon the papers "that it is intended