up," and testified that in accordance with said order he filled said goods. Upon cross-examination he was asked to produce, and did produce, a sample of said goods, when it appeared that they were neither filled, within the definition of "being occupied to their full capacity," or of "practically closing up the interstices." The goods in question are not filled, in fact, within the foregoing ordinary meanings of that term, or within the definition "to put, pack, or pour into until no more can go in," for it is not contended that these goods have been filled to their full capacity with starch, nor so far filled as to entirely close the interstices; or in the technical sense, as shown by the books treating of this subject, in which it is generally stated or assumed that, in order to constitute a filling, there must be some inorganic material or material other than starch. The testimony of the witnesses for the government conflicts as to whether the method pursued for starching is the same as that used for filling. The uncontradicted testimony shows that all finished goods are starched with a greater or less percentage of starch, and that the amount used is modified according to the purposes for which the article is to be adapted. In view of all the foregoing considerations, it must be held that the goods in question are not filled, and therefore the decision of the board of general appraisers is reversed. HENSEL et al. v. UNITED STATES. (Circuit Court, S. D. New York. December 28, 1899.) No. 2,312. CUSTOMS DUTIES-CLASSIFICATION-PICTURE FRAMES. Paragraph 575 of the tariff act of 1894, admitting free of duty paintings which are works of art, does not include as a part of such paintings ornamental frames in which they are imported, nor are such frames exempt as usual coverings, but are dutiable, under paragraph 181, as manufactures of wood. Appeal by the importers from a decision of the board of general appraisers, which affirmed the action of the collector in assessing duty upon the importations in question. Howard T. Walden, for importers. TOWNSEND, District Judge (orally). The merchandise in question comprises certain gilt and bronze picture frames, assessed for duty at 25 per cent. ad valorem, under paragraph 181 of the act of August 27, 1894, as "manufactures of wood," and claimed to be exempt from duty, under paragraph 575 of said act, as parts of paintings, or as usual coverings. It is clear that these frames are designed for purposes other than to cover and protect the paintings, and that they are designed to give additional attractiveness to the pictures. The only apparent support for the contention of the importers is in the language of the circuit court of appeals in U. S. v. Hensel (C. C. A.) 98 Fed. 418, as follows: "It appears that the treasury department has allowed frames containing pictures, which for some reason had been given free entry by congress, to come in free with the pictures, but in the case of dutiable oil paintings the practice of assessing a separate and independent duty upon the frame has been followed by the treasury department continuously since 1866, and, so far as appears, has never been successfully attacked; nor, indeed, has it ever been presented to any court." Thereupon the circuit court of appeals, reversing the decision of the circuit court, held that certain frames on paintings subject to duty should be separately assessed, on the ground that where there has been "a long acquiescence in a regulation, and by it rights of parties for many years have been determined and adjusted, it is not to be disregarded without the most cogent and persuasive reasons." Counsel for the government shows by the citation of a great number of treasury decisions since 1875 that duty has been repeatedly assessed on frames as manufactures of wood, where the paintings, for certain reasons, have been admitted free. In the Hensel Case, which was before the circuit court of appeals, the only question involved was that of the duty upon frames where the paintings themselves were subject to duty. Therefore the evidence as to the action of the treasury department on frames containing free pictures was not presented to the court by counsel for the government. I think the general provisions of the act of 1894 for free entry of paintings which are works of art should not be so construed as to include ornamental frames such as those here in question. The decision of the board of general appraisers is affirmed. UNITED STATES v. LOEB et al. (Circuit Court, S. D. New York. January 19, 1900.) No. 2,699. CUSTOMS DUTIES-APPEAL FROM REAPPRAISAL-JURISDICTION. Under the provision of section 13 of the customs administrative act of 1890 that the action of a single general appraiser in making a reappraisement "shall be final and conclusive as to the dutiable value of such merchandise, unless the collector shall deem the appraisement of the merchandise too low," the duty of determining whether or not such appraisement is too low is devolved upon the collector, and in the performance of such duty he acts judicially, and his discretion cannot be controlled by his superior officers; hence, when he does not, in fact, deem the appraisement too low, an appeal taken by him by direction of the secretary of the treasury confers no jurisdiction on the board of three general appraisers to review such appraisement, and he is a competent witness to rebut the presumption of jurisdiction arising from the fact of appeal by showing that it was not taken in the exercise of his own judgment. This was an appeal by the United States from a decision of the board of general appraisers, which sustained certain protests involving the legality of a reappraisement by the board of review of certain imported merchandise. The decision of the board of classification, written by General Appraiser Somerville, is as follows: The goods involved in these protests consist of so-called "Swiss embroideries," a small number of handkerchiefs being also included in the importation, all of which were the subject of certain appraisements hereinafter more fully explained. The appraised value of the articles, as ascertained by the local appraiser at the port of New York, was in advance of the invoice value of the goods. The importers called for a reappraisement pursuant to the provisions of section 13 of the customs administrative act of June 10, 1890, which, in each instance, was held accordingly before a single general appraiser, who reappraised the goods, and reduced the advances made by the local appraiser to the extent shown by the record. The collector of customs, being of opinion, as he officially reported, that the appraisements made by the single general appraiser were not too low, declined to comply with the suggestion of the local appraiser that he should transmit the invoices and papers appertaining thereto to a board of three general appraisers for review, under the provisions of said section 13. He did, however, subsequently adopt this suggestion, when requested to do so by the treasury department, under circumstances hereinafter stated, which are claimed by the protestants to have operated upon his official action as a moral and legal duress, it being made to appear that the collector had made no change in his original opinion that the appraisements made by the single general appraiser were not too low. The board of three general appraisers assumed jurisdiction of the cases against the objection of the protestants, who interposed a written demurrer thereto; and the board proceeded to examine and decide the cases under the authority of said section 13. The collector liquidated the entries upon the basis of values ascertained by this board of review, and the importers filed their protests within the time prescribed by law, urging objections to the said liquidation, which are discussed seriatim in this opinion. 1. The first contention of the importers is that the board of three general appraisers never acquired jurisdiction to review the appraisements held by the single general appraiser, for the want of legal compliance with the requirements of said section 13, inasmuch as the collector transmitted the invoice and accompanying papers to the board of three general appraisers under coercion of the treasury department, and in face of the fact that he (the collector) did not deem the appraisement of the merchandise as already made too low. In our judgment, the question of jurisdiction is one which can properly be raised by protest. The rule is well settled by numberless decisions of the courts that, while the valuation of imported merchandise, as appraised by the proper officers, is conclusive upon the parties, "nevertheless the appraisement is subject to be impeached when the appraiser or collector has proceeded on a wrong principle, contrary to law, or has transcended the powers conferred by statute." U. S. v. Passavant, 169 U. S. 16, 21, 18 Sup. Ct. 219, 42 L. Ed. 644, and authorities there cited. Any statutory tribunal which assumes jurisdiction not expressly given by law unquestionably transcends the powers conferred on it by statute. The authority of a board of three general appraisers, sitting as a board of classification, duly organized under section 14 of the act of June 10, 1890, to pass upon questions raised by protests of this character, has been held to be precisely coextensive with a like authority conferred upon the courts by section 15. U. S. v. Klingenberg, 153 U. S. 93, 102, 14 Sup. Ct. 790, 38 L. Ed. 647; Passavant's Case, 169 U. S. 16, 18 Sup. Ct. 219, 42 L. Ed. 644; In re Taylor, G. A. 4072; U. S. v. J. Allston Newhall & Co. (C. C.) 91 Fed. 525. In U. S. v. Murphy, decided by the United States circuit court for the Southern district of New York, per Townsend, J., in December, 1898 (suit 2.704), it was held that a reappraisement of merchandise made by a single general appraiser under the provisions of said section 13 could be successfully challenged by protest, on the ground that the general appraiser who made the reappraisement did not examine any of the goods, nor have before him samples of the same at the time of the reappraisement. When the case was before the board of classification upon protest, that board held that the alleged irregularity was one which could be proved by parol evidence, and was fatal to the jurisdiction of the general appraiser, and, consequently, that his reappraisement was null and void. 1 No opinion filed. This view of the law was sustained by the court, and the decision was duly acquiesced in by the treasury department. S. S. 20,538 and 18,959. There is nothing in the suggestion of the government counsel that the so-called “reappraisement board" (or board of review) had a legal right to finally determine its own jurisdiction. If such a claim could be successfully made in this case, it could be sustained with equal propriety in every other case which has gone before the courts for review where a like jurisdiction has been assumed. No tribunal whose decisions are subject to review can lawfully be the final arbiter of its own jurisdiction. 2. The important inquiry in this case, and one not entirely free from difficulty, is whether, under the state of facts disclosed at the hearing and by the record, the board of three general appraisers, organized and acting under the authority conferred by said section 13, acquired jurisdiction to "examine and decide" the case thus submitted. The provisions of said section, so far as they are pertinent to the issues raised by the protest, read as follows: "Sec. 13. The decision of the general appraiser in cases of reappraisement shall be final and conclusive as to the dutiable value of such merchandise against all parties interested therein, unless the importer, owner, consignee, or agent of the merchandise shall be dissatisfied with such decision, and shall, within two days thereafter give notice to the collector in writing of such dissatisfaction, or unless the collector shall deem the appraisement of the merchandise too low, in either case the collector shall transmit the invoice and all the papers appertaining thereto to the board of three general appraisers, which shall be on duty at the port of New York, or to a board of three general appraisers who may be designated by the secretary of the treasury for such duty at that port or at any other port, which board shall examine and decide the case thus submitted, and their decision, or that of a majority of them shall be final and conclusive as to the dutiable value of such merchandise against all parties interested therein, and the collector or the person acting as such shall ascertain, fix, and liquidate the rate and amount of duties to be paid on such merchandise, and the dutiable costs and charges thereon, according to law." This board of review, sometimes popularly designated the "board of reappraisement," is manifestly a statutory tribunal, with limited powers and jurisdiction. Appraisers, invested with an analogous jurisdiction under the previous statutes, have sometimes been designated as "quasi judges" or "legislative referees." Greely v. Thompson, 10 How. 225, 240, 13 L. Ed. 397; Rankin v. Hoyt, 4 How. 327, 11 L. Ed. 996. So, in like manner, the collector of customs is a special statutory officer or tribunal, invested with power to exercise certain specified statutory functions, some of which are purely ministerial and executive, while others are of a quasi judicial character. U. S. v. Leng (D. C.) 18 Fed. 15. The rule in reference to all statutory officers and tribunals of this character is well settled, and it is that, where they have jurisdiction over the subject-matter, their determination is conclusive, "except upon a review in such way as the law points out for the correction of errors"; but, as stated in U. S. v. Thurber (D. C.) 28 Fed. 56, per Brown, J.: "There is one fundamental exception to this rule: Not only must the officer have jurisdiction of the subject-matter, but he must also keep within the limits of power conferred by statute. Whenever a suit is brought, based upon such officer's action, it is always competent by way of defense to show that the officer has departed entirely from the statute, or acted so contrary to it that his acts are deemed beyond his jurisdiction, and in excess of power; and in such a case what he does in excess of power is illegal and void, and may be shown in defense. Void acts are thus wholly different in their consequences from merely erroneous acts. Mere errors or mistakes in the performance of a duty do not make the officer's acts void. They stand good and valid until reviewed and corrected as provided by law,"-citing U. S. v. Doherty (D. C.) 27 Fed. 730, 733, and cases cited. From the letter of the statute (section 13) it is apparent that the board of review could acquire jurisdiction to "examine and decide" these cases only in one of two ways: First, in the event of the importer or other owner of the merchandise giving notice of his dissatisfaction with the decision of the single general appraiser in the time and manner prescribed by said section 13; or, secondly, by the action of the collector in announcing in some suitable way the fact that he "deemed the appraisement of the merchandise too low." And in both contingencies the collector is required to transmit the invoice and papers to the board of three general appraisers. The importers have expressed no such dissatisfaction, so that the jurisdiction of the board must turn upon the action of the collector. The law makes the decision of the single general appraiser final and conclusive, unless the collector shall "deem the appraisement of the merchandise too low," acting upon which conclusion he is to transmit the invoice and accompanying papers to the board of three general appraisers. The words "shall deem," as used here, we construe to mean "shall think, judge, or hold an opinion, decide, or believe on consideration," which accords with the definition given by the lexicographers. The formation of this opinion or belief must necessarily involve the exercise of judgment and discretion by the collector, based on proper investigation, and entertained according to the rules of reason and justice. Without a compliance on the part of the collector with this requirement, the board of review would acquire no jurisdiction to decide the case, and any decision made by it. would be null and void. It is, in other words, a condition precedent to the exercise of jurisdiction. The rule obtains that, "where the act or thing required by the statute is a condition precedent to the jurisdiction of the tribunal, compliance cannot be dispensed with"; and, furthermore, even if such compliance be impossible, the jurisdiction fails. End. Interp. St. p. 630, § 443. Nor can any consent of parties give jurisdiction, so that any statutory provision which goes to the jurisdiction does not admit of waiver. Cooley, Const. Lim. 493-506. It has accordingly been held that, where an act provided that justices, at the hearing of a bastardy proceeding, should "hear the evidence" of the mother, and such other evidence as she may adduce, the evidence of the mother was so essential to the jurisdiction of the tribunal that no order could lawfully be made without it, although the woman died before the hearing. Reg. v. Armitage, L. R. 7 Q. B. 773. The record here fails to show that the collector deemed the appraisement of the merchandise, as made by the single general appraiser, too low; and the testimony taken at the hearing shows beyond question that he did not deem it too low. It is in evidence that when the local appraiser at the port of New York suggested to the collector that he order a reappraisement of the goods by a board of three general appraisers the collector declined to adopt the suggestion. He expressed himself in a letter to the secretary of the treasury, under date of August 16, 1898, giving his reasons fully for the conclusions he had reached after due investigation. He officially reported to the secretary, after stating his reasons, as follows: "I am satisfied that the appraisements made by the general appraiser are not too low, although considerably less than those of the local appraiser; and I have no good reason that would justify the opinion on my part that the reappraisements as made are too low. Hence I am constrained to deny the request of the appraiser that I order a reappraisement on the 120-odd invoices by the board of three United States general appraisers, unless otherwise instructed by the department." The assistant secretary of the treasury then in charge of the customs division, in reply to this letter of the collector, under date of August 17, 1898, urged upon him the expediency of an appeal from the decision of the single general appraiser. After stating certain reasons, he concludes as follows: "The department has, therefore, to request that you make due application for a reappraisement by the board." It appears from the testimony that this letter was written after consultation with the solicitor of the treasury, and obtaining from him an opinion, verbally given, that "the secretary had the authority to request the collector to make an appeal in such case." The collector seems to have construed this request to be an order or instruction, from the fact that he made the following indorsement upon the papers: "In view of the department's order of August 7, 1898, I hereby order a reappraisement by the board of three general appraisers of the merchandise covered by this reappraisement." Subsequently, on October 7, 1898, the collector, after a personal conference with the assistant secretary of the treasury, made and signed the following indorsement upon the papers: "I hereby appeal from the decision of the general appraiser in this case, under the provisions and in accordance with section 13 of the act of June 10, 1890, |