delivered the opinion of the court:
Goods entered by appellees under the tariff act of 1913 were appraised at 15 per cent above their entered value by the appraiser who returned the invoice on May 3, 1920. Appellees attempted to appeal by filing supplementary notice of appeal to reappraisement on May 7, and on May 10 paid $1 to the collector, who received it and treated the appeal as completed. The single general appraiser on reappraisement sustained the entered value. The collector took an appeal to re-reappraisement where the reappraised or entered value was affirmed. The collector, in the final liquidation of the entry, assessed duty on the original appraised value and assessed additional duty because of the advance over the entered value, refusing to liquidate upon the reappraised value on the ground that the reap-praisement and the re-reappraisement proceedings were void because the fee had not been paid within two days, as required by paragraph M of Section III of the act of 1913. The importers protest the action of the collector and contend that the entry should be liquidated in accordance with the finding of value by the board.
The collector states that the time for moving for a rehearing after the finding in the re-reappraisement by the board of three had expired before he had taken notice of the date of filing fee.
The board, sitting in classification, in its ruling opinion, referring to the jurisdictional question raised, held that—
It is our duty, however, to give a liberal construction to those provisions of law out of which grow the board’s power to ascertain and determine the market value of imported merchandise, and to ascertain and determine the correctness of the classification of said merchandise and the assessment of duty thereon. * * * We are inclined to the view that in a reappraisement proceeding, the board’s jurisdiction being expressly statutory, jurisdiction should not be denied when the express statute which creates it has been substantially complied with. [Our italics.]
We hold that this is a wrong conclusion of law.
Paragraph M of Section III of the tariff act of 1913 in part is as follows:
* * * If the collector shall deem the appraisement of any imported merchandise too low, he may, within sixty days thereafter, appeal to reappraisement, *147which shall be made by one of the general appraisers, or, if the importer, owner, agent, or consignee of such merchandise shall deem the appraisement thereof too high, and shall have complied with the requirements of law with respect to the entry and appraisement of merchandise, he may within ten days thereafter appeal for reappraisement by giving notice thereof to the collector in writing. Such appeal shall be deemed to be finally abandoned and waived unless within two days from the date of filing thereof the person who filed such notice shall deposit with the collector of customs a fee of $1 for each entry. [Italics ours.]
Tlie importers had 10 full days from May 3 in which to file their written notice of appeal. They filed it on May 7.
The statute also says in no uncertain or indefinite terms:
Such appeal shall be deemed to be finally abandoned and waived unless within two days from the date of filing thereof the person who filed such notice shall deposit with the collector of customs a fee of $1 for each entry.
The importers could have waited until the tenth day, and then they would have had two days in which to file the fee, but they filed the notice on the fourth day, and in order to complete the appeal they should have filed the fee within two days from that date.
The only right given litigants in appeal is in the wording of the statute, and it contains nothing that would authorize an extension of the 2-day period on the ground that the entire 10-day period had not expired. Under the express wording of the statute, we are not justified in stating that a filing of the fee on the third day after the notice of appeal is a substantial compliance with the act, or that anyone may waive, change, or extend its plain provisions.
It seems clear to us that there was no appeal to reappraisement or to re-reappraisement, and that the single general appraiser and the board of three sitting in re-reappraisement were without any jurisdiction whatever, and that their acts were void. It follows that the collector was entirely within the law and within his limitations under the law when he refused to liquidate in accordance with the void re-reappraisement. If the reappraising bodies had no jurisdiction, the collector’s acts before them were of no effect; his laches, neglect, or silence could not alter the plain mandate of the statute. The statute itself had dismissed the appeal; he could not revive it by any act of his. He could not waive the time limit; the law under which they were attempting to function had already dismissed the appeal.
The words “shall be deemed to be finally abandoned and waived” should be noted carefully. No discretion is given to anyone. No officer of the Government, nor any judicial tribunal, is given discretionary power with reference to the appeal. If the fee is not paid within two days after the notice, it is adjudged by the law that the appeal is not in existence, and the rights given have passed.
*148“Deemed,” “abandoned,” and “waived” mean, according to Webster’s New International Dictionary, as follows:
Deem: To sit in judgment over or upon; to judge; also to pronounce judgment upon, to decide.
Abandoned: To relinquish or give up with the intent of never again resuming or claiming one’s rights or interests in; to give up absolutely; to forsake entirely; to renounce utterly; to relinquish all connection with or concern in.
Waive: To throw away; to relinquish voluntarily, as a right which one may enforce if he chooses; to abandon or forsake.
That tbe failure to file tbe fee within, tbe time specified by tbe act leaves tbe single general appraiser and tbe Board of General Appraisers sitting in re-reappraisement without any jurisdiction whatever, is, we think, definitely decided by tbe cases of Sugar Products Co. v. United States (10 Ct. Cust. Appls. 179, 181; T. D. 38649) and Carriere v. United States (163 Fed. 1009; T. D. 28957).
In tbe Sugar Products case tbe $1 fee was not paid in time, and tbe action of tbe single general appraiser, tbe board of three, and tbe Board of General Appraisers in dismissing tbe appeal on motion of tbe Government makes that case, with tbe exception of tbe question of tbe delay -in making tbe motion to dismiss, on all fours with tbe case at bar. Judge Barber, in delivering tbe opinion of tbe court, said:
It is really immaterial whether we regard the giving of the notice as constituting the appeal or as a preliminary step thereto to be supplemented and perfected by the deposit. In either view the provision is mandatory that “unless within two days” the deposit is made, “such appeal shall be deemed to be finally abandoned and waived.” If deemed abandoned and waived there is no pending appeal. The real status of the matter is the same as if the notice had not been given.
Nor is this inconsistent with importer’s theory as to the legislative intent in enacting the provision under consideration, concerning which counsel argues that Congress intended thereby to discourage frivolous appeals, the taking of which serves to congest the files of the Board of General Appraisers, and that requiring the deposit was for the purpose of evidencing the good faith of an importer in taking an appeal. We are unable to see how, if the interpretation of the statute claimed by the importer be sustained, this purpose is accomplished. If all that an importer is required to do is to give his notice and then deposit the fee any time before the appeal comes on for hearing,- it is clear that in many instances a long time would elapse between the taking of such an appeal and the manifestation of the importer’s good faith in taking it. Indeed, no one but the importer could know whether the appeal was taken in good faith until it came on for hearing before the proper tribunal. * * *
We regard the provision of the statute that unless the deposit for each entry is made within the two days the appeal shall be abandoned and waived as mandatory, and that in any subsequent proceedings attempted in such a case no other course is open than to so regard the alleged appeal. That has been done in this case.
As the Board of General Appraisers in disposing of the matter well said:
The limits of time within which the appeal must be filed and the deposit of the fee made are definite limitations of the statute which no judical tribunal may extend. (Citing authorities.) To pretend to do so would be in effect to usurp the legislative functions of the Congress.
*149And to this it may well be added that to ignore this express declaration of congressional will would be either to regard the same as meaningless or to deliberately deprive it of effect.
In Carriere v. United States, supra, United States Circuit Judge Knappen in construing the following statute—
That if the owner, importer, consignee, or agent of any imported merchandise, or the collector, or the Secretary of the Treasury, shall be dissatisfied with the decision of the Board of General Appraisers, * * * they or either of them, may, within thirty days next after such decision, and not afterwards, apply to the Circuit Court of the United States within the district in which the matter arises, for a review of the - questions of law and fact involved in such decision. Such application shall be made by filing in the office of the clerk of said circuit court a concise statement of the errors of law and fact complained of (26 Stat. L., p. 138, ch. 407, sec. 15; U. S. Comp. St. 1901, p. 1933). (Italics ours)—
said:
The 30-day period had thus elapsed when the application for review was made. An application on the 31st day after the decision was not in time. (Citing authorities.) (P. 1010.)
A motion to dismiss the application is made by the district attorney on behalf of the United States, upon the ground that it was not made within the period limited by statute therefor. If this application were one addressed to the discretion of the court, I should be loth to exercise it in favor of such dismissal, coming, as it does, upon final hearing of the case, and raised, as it is, only by brief of counsel. If, however, the failure to apply for a review within'the statutory period is jurisdictional, no case for the exercise of discretion is presented. (P. 1009.) * * *
This statute is mandatory and its observance is essential to the conferring of jurisdiction upon this court. The dismissal of appeals and writs of error because not taken within the period limited by statute is expressly based upon a lack of jurisdiction in the appellate court. (Citing authorities.) * * *
A delay of one day beyond the statutory period is thus as fatal as a longer period. (Citing authorities.) * * *
Going to trial upon the merits does not have the effect to waive the lack of jurisdiction. In Stevens v. Clark (10 Ct. Oust. Appls. 379; 62 Fed. 321) it was held that by going to trial upon the merits an appellee could not waive lack of jurisdiction resulting from failure to take a proper appeal within the prescribed time. * * *
In Credit Co. v. Arkansas Railway Co. (128 U. S. 258), and in Edmonson v. Bloomshire (74 U. S. 306), the question of jurisdiction was raised by the court upon its own motion and upon hearing on the merits.
The above authorities alone would seem to so definitely dispose of the question of jurisdiction and of waiver by the collector as to require no additional citations from the abundance of authorities.
There being no jurisdiction, the actions of the single general appraiser and the board of three were absolutely void and not voidable.—Atlantic Transport Co. v. United States (5 Ct. Cust. Appls. 373; T.D. 34872).
In the Atlantic Transport case, the court said:
It would seem, however, that the court may at any stage raise the question of jurisdiction of the subject matter, and should do so, and that the determina*150tion of the trial court that it has jurisdiction adds nothing to the force of its judgment. See Brown on Jurisdiction (second edition, sec. 26, at pp. 131 and 132), where it is said:
If the court lacks jurisdiction over the subject matter of the controversy, all the authorities agree that the judgment is void, however honestly it may believe it is acting rightfully, whatever may be the recitals of its record, however formal may be its acts, or however judicious its conclusions. If it lacked power to perform the judicial act it undertook, its findings that it had jurisdiction adds nothing to the verity of its pretended judgment. Its power was usurped and its finding that it possessed the power in no way confers it.
It is very ably and earnestly urged by the learned counsel for the importers that regardless of the question as to whether the trial tribunals below had jurisdiction or not, the jurisdictional facts were before them and their findings presume that they determined from the facts that they had jurisdiction, and that their decision can not be attacked collaterally, and that the issue raised by the Government in the case at bar is collateral. He also contends that the record in this case shows affirmatively that the requirements of the statute governing appeals were in fact complied with.
The jurisdictional fact, to wit, the filing of the fee three days after notice of appeal was evidently considered by the board o! three sitting in re-reappraisement. The opinion of the Board of General Appraisers while sitting in re-reappraisement is found in T. D. 38667 (G. A. 8421). There, it seems from reading the opinions, that it was admitted that the stamp showed that the fee was filed on May 10, and no suggestion that the fee was paid on an earlier date was made, and the board holds that the Government should have raised the question before the single general appraiser, so as to give the importers the chance to contradict the evidence of the "rubber stamp.” The board’s decision proceeds upon the theory that the Government’s counsel "either actively waived or passively ignored the defect” (namely, the jurisdictional fact), "and taken chances on two trials,” and were estopped from raising the question successfully in subsequent proceedings. The board did not find that the fee had been paid within two days. On the contrary, if their decision can be said to make a finding on the question, it was at least by implication that the fee was. not paid until on the third day, and that they had jurisdiction to consider the case owing to the waiver of the defect by the Government. General Appraiser Adamson reasons:
If the importer should be deemed to have waived the appeal, if the fee was not paid, the Government may be deemed to have waived the objection to the defect—
and again:
The Assistant Attorney General fails to cite any authority conferring upon this board original jurisdiction to consider and dispose of any such application and the gist of his application is an insistance on the importance of jurisdiction, and, if the board had no power to consider and dispose of the appeal if the point *151had been raised by a motion in the first instance, how could the board now acquire jurisdiction to hear and determine a motion to dismiss that appeal if the case were reopened? If the whole proceeding is null and void, it may be so regarded everywhere, and the matter needs no action by this board. (T. D. 38667; G. A. 8421.)
It is true that the jurisdictional fact, i. e., the date of the fee, could have been shown by evidence at the trial, and if the importers could have successfully proved the filing to have taken place within the two days, it is an unfortunate and regrettable position into which they have been thrown. Yet, where all the evidence in the record shows the filing to have been on the third day, and the case comes to us on that question, we can not.permit our regrets to influence our declarations upon legal principles.
In further answer to the contention that the record in the case shows that the requirements of the statute regarding appeals were complied with, it should be noted that the record now before this court establishes without contradiction that the reappraisement fee was not deposited with the collector until the third day after the date when the appeal to reappraisement was filed. In the first place the collector made and recorded a finding to that effect and incorporated it in his official report to the classification board. It is of course elementary that the collector’s findings and decisions are presumed to be correct, and that at the trial of a protest against them the burden of proof upon disputed questions rests upon the protestant. Therefore in this case, if the importers had intended to dispute the collector’s findings relative to the date of the deposit they should have submitted their evidence upon the subject to the classification board at the trial of the protest. The record, however, discloses that the importers made no such contention before the classification board, and introduced no evidence at all at the trial. Furthermore, the importers’ attorney there conceded that the reappraisement fee had not been deposited within the two-day period. Consequently, the board in its ruling opinion rightly accepted it as an established fact that the fee had not been deposited with the collector until the third day after the notice of appeal was filed. It is manifestly too late to raise any question of fact upon that subject now, and the legal effect of the belated deposit has already been declared.
Prior to the tariff act of 1922, reappraisements were not subject to review by the classification boards or the courts by means of a direct appeal or writ of error. Nevertheless they were subject to be impeached where the appraisers proceeded upon a wrong principle, contrary to law, or transcended the power conferred by statute, or failed to comply with statutory provisions.—Muser v. Magone (155 U. S. 240, 247), United States v. Passavant (169 U. S. 16), Loeb v. United States (1 Ct. Cust Appls. 385; T. D. 31479), Tilge v. United States (id. 462; T. D. 31507). It must be conceded that a reappraise*152ment made without a lawful appeal therefor would fall within the foregoing condemnation. The remedy against such illegal reappraise-ments was not confined to the importers only, but was extended to the collector as-well. Accordingly if the objection to the reappraisement came from the importers, they were permitted to file a protest against the liquidation upon the ground that it was illegal. On the other hand, if it was the collector who contended that the reappraisement was illegal, he could refuse to adopt it when liquidating the entry, leaving the importers to protest, should they desire to defend the reappraisement. It is plain that no other remedy against an illegal reappraisement would be available to the Government under such circumstances, for if the collector-adopted such reappraisement as the basis of his liquidation the Government would be foreclosed thereby, since the collector could not file a protest against his own liquidation.
The protests in both classes of cases were triable alike upon evidence the same as other protests before the classification boards. At the trial of such an issue the reappraisement in question would be presumed to be lawful and. correct (United States v. Bradshaw & Co., 5 Ct. Cust. Appls. 121; T. D. 34168), and that presumption would prevail unless overcome by positive, clear, and certain proof to the contrary (United States v. Johnson Co., 7 Ct. Cust. Appls. 466; T. D. 37050); but if the facts establishing the illegal character of the reappraisement in question were satisfactorily proved before the classification board it would be the board’s duty to reject the re-appraisement (United States v. Loeb, 107 Fed. 692); and if in cases like the instant one the importers themselves conceded before the classification board the existence of facts from which the illegal character of the reappraisement appeared, that board should sustain the action of the collector in rejecting the illegal reappraisement.—United States v. Scanlan (5 Ct. Cust. Appls. 290; T. D. 34473).
In the absence of these remedies neither the importers nor the collector could have obtained relief under former tariff acts against illegal or void reappraisements, since a direct appeal therefrom to the classification board or the courts was not” allowed. And if no remedial procedure at all had been provided of allowed it would have been idle for the courts to say that reappraisements were subject to be impeached “where the appraisers proceeded upon a wrong principle, contrary to law, or transcended the power conferred by statute, or failed to comply with statutory provisions.”
The issue in this case is of the foregoing character, the importers claiming the reappraisements to be valid, while the collector refused to adopt them because of his claim that they were illegal and void. The issue therefore was not a collateral attack upon the reappraise-*153merits but a direct impeachment of them for illegality by the only means then allowed by law. Moreover, the illegality of a reappraisement could be proved before the classification board by facts dehors the record of the reappraising officers, and without the introduction of such records in evidence. — United States v. Loeb (107 Fed. 692). These considerations apply with peculiar force to the present case, since the deposit of the jurisdictional fee was required to be made with the collector, and therefore the only fact involved in the case was one which took place before him and became a part of his official record. When he came to liquidate the entry, he was necessarily compelled to decide whether to accept the local appraiser’s valuation of the merchandise or that of the reappraising officers. And when he found from an examination of his records that no statutory appeal to reappraisement had been taken, he was bound to adopt the local appraiser’s return. That action, however, was of course subject to review upon protest, and such a review necessarily required the classification board to pass upon the legality of the appeal to reap-praisement. Its decision thereon was of course appealable to this court, and neither the classification board nor this court can be ousted of its jurisdiction in the case by the conclusions, if any, reached by the reappraising officers regarding the legality of the appeal.
In the next place, it may be observed that the question before us, rightly stated, is whether within contemplation of law there were any reappraisements at all in the present case. In other words, this appeal does not really call for a review of the reappraisements as such, nor does it question any ruling of the reappraising officers in relation to the merchandise or its value, but it challenges the authority of the reappraising officers to act at all under the circumstances. The issue therefore does not depend upon the proceedings which were had before the appraisers, but upon those had before the collector. For if there was no legal appeal taken before the collector, it would follow that the reappraising officers possessed no authority at all to deal with the merchandise, and their attempt to reappraise it was simply null and void. This principle was expressed in relation to reappraisement boards by the Circuit Court of Appeals, Second Circuit, in the Loeb case, supra, in the following words, viz:
As the board of three general appraisers is a special tribunal, and derives its jurisdiction from a compliance with the statutory requirements conferring it, it is undoubtedly true that its acts and decisions are coram non judice, unless the jurisdiction has been invoked pursuant to the terms of the statute by which it is conferred.
Therefore, if the jurisdictional requirements of the statute were not complied with there was no reappraisement within the sense of *154the statute. This court when dealing with an analogous case, in Maddaus v. United States (3 Ct. Cust. Appls. 330; T. D. 32623), said:
The statute entitles the importer, or the Government, to an appraisement by a single general appraiser or a board of general appraisers proceeding according to law. The decision thus had become final, and neither the board nor this court can review the same. Until, however, the jurisdictional requirements of the statute have been complied with or satisfied there is no “decision” within the statute of a single general appraiser or a board of three general appraisers. The review sought, therefore, is not a review of the decision itself, but a review of the legal power of the general appraiser or board of general appraisers to render that which without such power duly exercised does not become the “de-.cisión” contemplated made final by the provisions of the statute. (P. 332.)
While this court has held in United States v. Kurtz, Stubbeck Co. (5 Ct. Cust. Appls. 144; T. D. 34192) that the Board of General Appraisers in classification is a judicial tribunal, and has also held in Shallus v. United States (5 Ct. Cust. Appls. 317; T. D. 34525) that the Board of General Appraisers in re-reappraisements is not a judicial tribunal, it is not necessary for us to determine whether the decision rendered by the Board of General Appraisers sitting in re-reappraisement is such a decision as would come within the inhibition of the rule of collateral attack. We think, however, that the question of the timeliness of depositing the fee is squarely and properly before us, and that it is a jurisdictional question, and the question being properly before us, it can not be ignored. In the case at bar, the single general appraiser and the Board of General Appraisers in re-reappraisement proceeded without authority of law and contrary to law in so far as they had no jurisdiction whatever in the case. The same parties, the same case, and the question of appraisement or reappraisement are before this court as were before the lower tribunals, and the question of appraisement is necessarily involved here as it was in the lower tribunals. This court is not setting aside a decree of the lower tribunals upon their weighing of facts in determining appraised value. The statute creating and giving power to the lower tribunal sets aside the decision for the reason that it denied it any jurisdiction whatever to determine the facts unless certain conditions were complied with by the litigants within a certain specified time. The void judgment amounts to nothing, and it is as if it did not exist. Neither the Board of General Appraisers nor this court can vest the appraising tribunal with a power which has been denied it by Congress. Congress exercised its right in fixing a definite limit of time in which an appeal could be perfected. No agreement or silence by the parties can confer jurisdiction where the legislative intent is plain that.no jurisdiction shall vest.
It might be well to add that if it were admitted that the Board of General Appraisers sitting in re-reappraisement was a judicial tri*155bunal, and if it were further admitted that the attack on its decision in this case was collateral, we do not think such attack would be in contravention of the rule against collateral attacks on decisions of judicial tribunals, for the reason that the finding of the Board of General Appraisers sitting in re-reappraisement in this case was absolutely void for want of jurisdiction. It was not voidable, but void— a nullity with no more force and effect than if it had not been entered. Such a judgment, decree, or finding may be attacked in any judicial tribunal, in any other cause, at any time the question arises. —Lincoln v. Tower (15 Fed. Cas. No. 8355; 2 McLean 473); Moore v. Edgefield (32 Fed. 498); Thompson v. Whitman (85 U. S. [18 Wall.] 457).
The judgment of the Board of General Appraisers in re-reappraisement we think clearly shows on its face a lack of jurisdiction, and that the jurisdictional question raised was erroneously decided in favor of the importer upon the theory that the Government had waived it.
The judgment of the Board of General Appraisers is reversed.