section 1219, even while they held no formal commission, or they were not serving at all. An actual formal commission is not necessary in order that an officer may have "served as a commissioned officer of the United States," within the purview of this section 1219, if the officer in fact rendered that service as a commissioned officer.

Respectfully,

The SECRETARY OF WAR.

JOHN W. GRIGGS.

APPRAISERS-SETTLEMENT TESTS-IMPORTED SUGARS.

Under Schedule E of the existing tariff law (act of July 24, 1897; 30 Stat., 168), specific rates of duties are laid upon imported sugars graduated according to the polariscopic test. These tests, while made by officers and experts subordinate to the appraiser, are reported to him, and by him, after ascertainment of the quality and value of the sugar, reported to the collector for classification.

It is the collector's duty to classify such sugars, and this classification is based upon the appraiser's report, which embraces not only the question of value, but the general result of his examination, including the character and quality of the sugars.

Section 16 of the customs administrative act (June 10, 1890; 26 Stat., 138), authorizes the officers therein named to cite witnesses and to require the production of letters, etc., in ascertaining the classification as well as the dutiable value of merchandise, including all information which the officers so empowered deem material.

It has been a part of the duty of appraisers throughout the tariff history of the country to examine and inspect merchandise and report upon its character and quality in connection with or in addition to the report on value.

Under the law as it exists, the appraiser, as the final and chief examining officer, is given authority to ascertain, by all reasonable ways and means in his power, not only the actual value of imported merchandise but its character and quality as well; and this right of ascertainment carries with it the authority to demand and secure from sugar importers the settlement tests of all importations of sugar. There can be no doubt of the collector's right, under section 16 of the customs administrative act, to call for such settlement tests, and for practical purposes it is immaterial whether the appraiser obtains this information directly from the importer or through his superior, the collector.

DEPARTMENT OF JUSTICE,

September 25, 1900. SIR: Your letter of April 16 informs me that under the tariff act of 1894 (Schedule E thereof), which imposed an ad valorem duty upon imported raw sugars, it became the practice in appraising such merchandise to ascertain first the value at the port of importation and to deduct the costs and charges incident to transportation, because such sugars were usually consigned for sale at the prices which might be realized; that these prices were determined by what is known as the settlement test of such sugars, which is the average of two tests made by chemists employed respectively by the seller and buyer, and in case of disagreement, by the intervention of a third commercial chemist. It appears that importers contended under that tariff that such settlement tests should be accepted by appraising officers as the proper basis for appraisement, and freely furnished such tests for that purpose.

In Treasury Department Circular No. 146, dated October 16, 1896, the sugar regulations then in force were supplemented by the provision that the appraiser may require the importer, under section 16 of the customs administrative act, to report the polariscopic degree revealed upon any settlement test, and may also require a sample identical with the sugar which was the subject of such test.

Under the existing tariff (Schedule E thereof) specific rates of duties are laid upon imported sugars graduated according to the polariscopic test, and it appears to have been the practice of the appraiser at New York to require of importers their settlement tests in order to determine, where necessary or desirable, whether the Government tests are correct. Many importers continue to produce the settlement test to the appraiser, while other importers object so to do on the ground, generally, that since now no question of value is involved, and since to the appraiser belongs the duty of ascertaining value, and he is not empowered by law to decide the question of classification, which is committed to the collector, the settlement test is not material in any official matter before the appraiser; and for the further reason that the object, as such importers

are informed, is to enable the appraiser, by comparison of the settlement tests and the Government official tests, to judge of the efficiency of the official samplers, and that it is not competent for the appraiser thus to coerce the importer in aid of the maintenance of official discipline. The contention of the appraiser, on the other hand, is that he is authorized to enforce a demand for such settlement tests by virtue. of the authority vested in him under section 16 of the customs administrative act.

It seems, further, that frequent applications are made to the appraiser at New York by importers for the retest of imported sugars under the provisions of paragraph 34 of the sugar regulations now in force which were promulgated May 10, 1899, by which paragraph it is provided that if an importer claims an error in the official test reported to him, and requests a retest of any portion of the sugar under examination, the request may be granted, provided the appraiser, on evidence furnished, deems the claim to be well founded; but such retest shall not, however, be granted when the error claimed amounts to less than four-tenths of 1 polariscopic degree. It seems that the evidence furnished by the importer is, generally, his settlement test, and that when that is shown to be four-tenths or more of 1 degree lower than the Government test, the retest is granted. When, however, the settlement test is four-tenths of 1 degree higher than the Government test, it is the appraiser's practice to make retest under an amended regulation of January 25, 1900, which provides that in case of retest the final test for classification shall be the original test, unless the latter is higher than the retest, in which case the retest or the average of the test and retest shall be taken as the basis of classification, whichever is shown to the satisfaction of the appraiser to be the correct test.

You state that it follows from the foregoing that when the settlement test is four-tenths of 1 degree higher than the Government test, that fact can not be known to the appraiser unless importers are required to present all their settlement tests, and the Government will lose the advantage of retests which are fully accorded to importers when the

settlement tests are four-tenths of 1 degree lower than the Government tests. Upon this point it appears from the papers, on behalf of the importers, which accompany your communication and which you make a part thereof in effect, that since the Government takes its own samples and makes its own tests, the classification is made upon the official test and not upon the settlement test; that if the classification could be made upon the settlement test, it would doubtless be furnished, but as this is not the case, the settlement test is not material to the appraiser in arriving at the proper test, and the importers' contention reverses the contention of the appraising officers, as stated by you, that the balance. of advantage in reference to comparison of tests is against the Government, because the importers claim that the appraiser is always willing to regard the settlement test when higher than his own, but is loath to give it significance when lower.

The position of the appraising officers, as shown more at large by other inclosures, is as follows: That, as above stated, when the official test is believed to be excessive, the importers do not hesitate to forward the settlement tests and demand investigation and correction based thereon; that the regulations drafted under the act of 1897 were founded upon those in effect under the act of 1883, when a schedule identical in spirit with the present one was in existence, the duties under the tariff of 1883 also being specific, the differences being, that under the present act, the polariscopic test was applied to sugars of higher color standard, and that fractions of a degree affected the tax proportionately, whereas under the earlier act, they were reckoned as degrees; that the settlement tests are material, and the appraising officer's inquiry is not restricted under the law to the ascertainment of value, but embraces quality, and that while the collector is by law the classifying officer, the appraiser's work in reference to the character as well as value of merchandise is the basis of the collector's classification; that if under the regulations such a test is found as experience in the character and quality of sugar shows to be incorrect, and by exercising the provisions of section 16 of the customs administrative act the

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true test can thus be ascertained, it is the duty of the appraisers to avail of the statute; and, finally, that the appraiser is not seeking information by methods which are inquisitorial, oppressive, and in excess of power, nor prejudicial to the interests of the importers, but, on the contrary, only seeks, for the purpose of discovering the actual and correct test of the sugar, information which has been willingly offered in the past, namely, the settlement test which the merchant claims to be the true test, at least when it is to his interest to do so.

Upon this state of facts you desire my opinion touching the authority of appraising officers to demand and secure from importers the settlement tests of all importations of sugar, from which it will be perceived that the question of law is whether the appraiser has the right under the statutes to compel the production by the importer of the information sought.

Addressing myself to the question, the provision of law which is the foundation of the conflict and is first to be considered is section 16 of the customs administrative act providing

"That the general appraisers, or any of them, are hereby authorized to administer oaths, and said general appraisers, the boards of general appraisers, the local appraisers or the collectors, as the case may be, may cite to appear before them and examine upon oath any owner, importer, agent, consignee, or other person touching any matter or thing which they, or either of them, may deem material respecting any imported merchandise, in ascertaining the dutiable value or classification thereof; and they, or either of them, may require the production of any letters, accounts, or invoices, relating to said merchandise, and may require such testimony to be reduced to writing, and when so taken, it shall be filed in the office of the collector, and preserved for use or reference until the final decision of the collector or said board of appraisers shall be made respecting the valuation or classification of said merchandise, as the case may be."

The importers apparently concede that the collector as the classifying officer may call for the settlement tests under this section, but contend that its provisions are distributive,