tifies 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. * 12 ORIGET v. HEDDEN. (Supreme Court of United States, 1894. 155 U. S. 228, 15 Sup. Ct. 92, 39 L. Ed. 130.) FULLER, C. J.13 * * * 3. The contention that the importer has the right to be present throughout the proceedings on the reappraisement, hear or examine all the testimony, and cross-examine the witnesses, which was passed on in Auffmordt v. Hedden, 137 U. S. 310, 11 Sup. Ct. 103, 34 L. Ed. 674, is renewed in this case. The importer appeared at the opening of the reappraisal, and made application that he or his associate or his counsel might examine the various affidavits made by experts, importers, merchants, and others, be present at the taking of any testimony, and cross-examine all witnesses produced, or suggest questions to the general appraiser. The appraisers ruled that they could not accede to this request, but expressed their desire to hear the importers in regard to their reappraisements, and their assurance of appreciation of any suggestions the importers might make as to asking questions of the witnesses. The presumption in favor of official action sustains this ruling as being in accordance with the rules and regulations established by the Secretary of the Treasury, under section 2949 of the Revised Statutes (U. S. Comp. St. 1901, p. 1940), to secure a just, faithful, and impartial appraisal of all merchandise imported into the United States, and just and proper entries of the actual market value or wholesale price thereof; and this was indeed the fact, as appears by reference to the general regulations of 1884, and instructions of June 9, 1885, given at length in Auffmordt v. Hedden. The following quotation from the instructions of 1885 will suffice to explain the reasons for the rule: "The law provides that the merchant appraiser shall be familiar with the character and value of the goods in question, and it is presumed that the general appraiser will have or will acquire such expert knowledge of the goods he is to appraise as to enable him to intelligently perform his official duty with a due regard for the rights of all parties and independently of the testimony of interested witnesses. The functions of the reappraising board are the same as those of the original appraisers. They are themselves to appraise the goods, and not to depend for their information upon the appraisement of so-called experts in the line of goods 12 See rules regarding examination of immigrants, 125 Fed. 643. 13 Only a portion of the opinion of Fuller, C. J., is printed. in question. * Appraisers are authorized to summon witnesses, but there is no authority for the public examination of such witnesses or their cross-examination by importers or counsel employed by such importers. The appraising officers are entitled to all information obtainable concerning the foreign market value of goods under consideration, but such information is not public property. It is due to merchants and others called to give such information that their statements shall be taken in the presence of official persons only. It must often occur that persons in possession of facts which would be of value to the appraisers in determining market values are deterred from appearing or testifying by the publicity given to reappraisement proceedings." As already stated, plaintiff in the case at bar was invited by the appraisers to present his views in regard to the reappraisement, and to suggest questions to be put to the witnesses. He did not avail himself of the opportunity, but insisted on the right to remain throughout the proceedings, to be informed as to all the evidence, and to crossexamine the witnesses as in open court. This, according to Auffmordt v. Hedden and Passavant v. U. S., 148 U. S. 214, 13 Sup. Ct. 572, 37 L. Ed. 426, could not be conceded. In those cases it was ruled that under the revenue system of the United States the question of the dutiable value of imported articles is not to be tried before the appraisers, as if it were an issue in a suit in a judicial proceeding; that such is not the intention of the statutes; that the practice has been to the contrary from the earliest history of the government; and that the provisions of the statute in this behalf are open to no constitutional objection. As respects taxation and assessment for local improvements, such notice and hearing as are appropriate to the nature of the case, and afford the opportunity to assert objections to the methods pursued or to the amount charged, are deemed sufficient for the protection of the i. dividual. Lent v. Tillson, 140 U. S. 316, 327, 11 Sup. Ct. 825, 35 L. Ed. 419. Duties imposed under tariff laws are paid in order that goods may be brought into the country, and provisions in respect of their levy and collection are framed in view of the character of the transaction. The finality of the appraisal is a condition attending the importation. prescribed by the government as essential to the operation of the system; and, if the importer is afforded such notice and hearing as enables him to give his views and make his contention in respect of the value of his goods, he cannot complain. * Judgment affirmed. FR.ADM.LAW.-14 SECTION 26.-IN DEALING WITH NUISANCES REYNOLDS v. SCHULTZ. * * (Superior Court of City of New York, 1867. 27 N. Y. Super. Ct. 282.) ROBERTSON, C. J.14 * The statute 15 requires the execution of the order to be suspended on demand of the party notified, and a hearing to be given him upon a fair and reasonable opportunity therefor, when he is to be allowed to give such proofs as he has to of fer, and the board may also introduce new proofs. Upon such hearing they may modify or rescind such order in an action at law. The board were then required to "cause the facts in regard to such complaint to be investigated and the appropriate remedy applied." This resembles greatly the trial and decision of issues in an action. If private individuals failed to call to their notice peccant employments, premises or substances, such board had a staff of accusers, consisting of ten medical inspectors, to report twice a week on such facts. as had come to their knowledge relative to the purposes of such act. So that abundant means were provided for obtaining the sufficient proof which the board were to take, without leaving their office, or uttering a word themselves, of accusation. I cannot come to any other conclusion than that such a mode of accusation, or obtaining evidence in advance, with such opportunity of being heard with evidence, and such a mode of final determination, was an exercise of judicial powers, and binding, unless prevented by some positive constitutional prohibition. If the compulsory attendance of witnesses for the accused, if necessary, be required to make the proceedings judicial, the board would probably be bound to give him the aid of the power they possess under the twenty-fourth section of the statute, to procure testimony. But in this case there is no pretense that any testimony has been lost by that means. If it had been set up, possibly this court might have exercised an equitable jurisdiction in obtaining such testimony, and perhaps also have thereby acquired jurisdiction over the whole subject. In order to enable such board to obtain proof sufficient for them to act upon, there was no necessity of their becoming active in hunting up testimony. The twenty-first section of the act requires them to keep a book open for public inspection, in which complaints of a sanitary character are to be recorded, signed by the accuser with his name, in which is to be entered the name of the accused, the date and the remedy suggested. This is not very unlike a complaint. * * * 14 Only a portion of the opinion of Robertson, C. J., is printed. 15 For provisions of statute in question, Laws N. Y. 1866, c. 74, see Metropolitan Board of Health v. Heister, ante, p. 137. The main objections to the constitutionality of the exercise of power under such first subdivision are that such proceedings violate "the laws of the land" required to be observed by the second section of the article of the Constitution of this state, and are not "due process of law" under the sixth section of the same article. The special points in which they are supposed to deviate therefrom are six in number, as follows: (1) That the functions of accuser and judge are blended in the same body. (2) That no process is served, or notice of the proceedings given to parties interested. (3) That the judgment precedes the trial. (4) That the accused is not confronted with witnesses against him. (5) That the testimony is not under oath, nor the ordinary rules of evidence observed. (6) That no means are afforded to the accused to compel the attendance of witnesses. The remarks already made dispose of the first and last of these objections. Indeed, I am not aware that there is any warrant for assuming that there must be a public prosecutor, except in cases in which the Constitution requires the presentment of a grand jury inorder to make a conviction legal. Prosecuting officers are the creatures of statutes, and, however expedient, are not indispensably necessary to procure the punishment of offenders. The people of the state are the accusers and "actors" in all cases of public offenses. The second and third of such objections are inapplicable to the case of an order, made absolute by the default of a party notified to move to set it aside after notice, or confirmed after a hearing upon evidence on both sides. Indeed, they are founded upon the mistaken notion that the first order is the final adjudication, instead of being a conditional order, made absolute only after a hearing, or neglect to appear after notice and demand of such hearing. The seizure of chattels in an action of claim and delivery, or the issuing of a preliminary injunction order, attachment or order of arrest, would be equally subject to such an objection. As to being confronted with witnesses, if that applies to the hearing, the board are bound to allow it, if their proceeding would otherwise be unconstitutional, and any irregularity in that respect could be corrected on certiorari. If oaths are necessary to be administered to witnesses, the same rule would prevail. 16 Although I am not prepared to say that an adjuration of a witness, the form of which may be varied by law, and is allowed according to the conscience of the party 16 Groenvelt v. Burwell, 1 Ld. Raym. 454, 472 (1699): "And by Holt, Chief Justice, where judicial power is given to persons by statute, they may by consequence of law administer an oath; but to that, he said, he would not give a positive opinion." sworn, including the simple affirmation of a member of the Society of Friends, is a constitutional requisition to make a trial valid. In regard to the attendance of witnesses, what I have already said as to that cause of complaint will suffice. And I am inclined to think that it will be found, on examination, that a power to compel the attendance of witnesses for the accused will not be found to be part of "the law of the land," at least that mentioned in "Magna Charta," and was given in more recent times. There still remains an objection to be considered, to wit, that no trial by jury is allowed under such statute. The words of the Constitution upon that point are (article 1, § 2) that "the trial by jury in all cases, in which it has been heretofore used, shall remain inviolate forever." The term "case," in such provision, has been held to mean the kind of action, prosecution or proceeding, and is not confined to the subject-matter. Thus, in the case of Duffy v. People, 6 Hill, 75, it was held that a proceeding to compel a husband to support his wife, being a mere preventive proceeding, like giving security to keep the peace, did not require a trial by jury, and that, preventive remedies for similar offenses having been used before the adoption of the Constitution, obtaining them was not a "case" within the meaning of the Constitution in which trials by jury had been used, although it was held that the adjudication of the magistrate on the subject of the marriage of the parties, although sufficient to compel giving security, was not conclusive. But although the judgment for the abatement of a nuisance at common law, "quod permittat prosternere," may have required a trial by jury, when demanded, yet courts of equity could always restrain the conducting of any business which was one, without such jury. And that is all which the order, as finally modified in this case, does. Such objection, therefore, falls to the ground. HUTTON v. CITY OF CAMDEN. (Court of Errors and Appeals of New Jersey, 1876. 39 N. J. Law, 122, 23 Am. Rep. 203.) * * BEASLEY, C. J.17 * But to rest here would be to put this matter on too narrow a ground. There is an infirmity in all proceedings of this nature, which lies deeper than the one just noticed. Assuming the power in this board, derived from the Legislature, to adjudge the fact of the existence of a nuisance, and also assuming such jurisdiction to have been regularly exercised, and upon notice to the parties interested, still, I think, it is obvious that, in a case such as that before this court, the finding of the sanitary board cannot operate in any respect, as a judgment at law would, upon the rights involved. It will require but little reflection to satisfy any mind, accustomed to 17 For first part of opinion, see ante, p. 136. |