DISSENTING OPINION BY
BARBER, JUDGE.After much consideration of this case I find myself unable to concur in the majority opinion, which as I view it is based upon a misapprehension both of fact and of law. While some of my reasons *161for dissenting are included in those expressed by Judge Smith, there are others the nature of which requires expression. ■
The main opinion opens by assuming that the importers attempted to appeal to reappraisement by filing a supplementary notice thereof on May 7 and on May 10 paid the appeal fee to the collector, hut does not in that connection point out what proof there is of such assumed fact.
On the assumed fact, however, the opinion holds, there was no appeal to re-reappraisement; that the board of three was without jurisdiction, its acts void; and the collector justified in rejecting its appraisement in his liquidation.
The majority entirely overlook the rule of law that upon ample authority was stated in United States v. Bradshaw (5 Ct. Cust. Appls. 121; T. D. 34168). We there held that “It must be conceded that the appraisement of the board of three is conclusive upon all parties until shown to be contrary to law or based upon some erroneous principle. For the presumption is that the reappraising board acted in accordance with law and this presumption obtains until the contrary is lawfully made to appear.”
A duly certified record of the appraisement board is before us. It is not pointed out what is contained therein (nor is there anything) that tends to show that its proceedings were contrary to law or based upon an erroneous principle. It is therefore necessary to estab-¡ lish the impeaching facts by evidence, unless they are conceded.. The main opinion states that the fact of nonpayment of the appeal fee within two days was conceded by importers’ counsel at the hear-, ing before the classification board. I deny this, and, so that it may appear upon what the assumed concession is based, produce here the record in that behalf.
When the case came on -for hearing before the classification board, the appearances for the importers and for the United States were entered. Immediately after which, no evidence whatever having been introduced, counsel for importers said that he would submit on the record as it stood and asked for three weeks’ time in which to file a brief. Government counsel asked for a like time thereafter for reply. Then followed a comment by a general appraiser as to the time asked for. Importers’ counsel then said: “It is something new. The collector declined to follow the board’s reappraisement on the ground that the fee had not been paid in time. Of course I know the court has decided the payment of the fee is necessary, but at the same time it has not been before the board in this situation.” A general appraiser then inquired if the board had decided it was not necessary, to which importers’ counsel replied, “No. Your honor will probably recall you sat with Judge Weller as a member of Board 2 and later on after the collector had liquidated and the papers reached the naval *162office somebody discovered that the fee had not been paid, and so the question raised in that way.” The record next shows that it was finally agreed that the importer should have two weeks to file his brief and the Government two weeks for reply.
These proceedings constitute all that transpired before the classification board as shown by the record here. The briefs referred to are not before us nor are we in any way advised as to their contents. By no stretch of the imagination am I able to conclude that the record before the classification board contains the concession stated in the main opinion.
The first remark of importers’ counsel was merely a statement of the ground on which the collector based his action. It was not a concession of any kind and especially was not a concession of the fact of nonpayment within the two days. The second remark was in answer to the general appraiser and called his.attention to a hearing in which he had previously participated where it appeared the collector had liquidated and the naval office discovered on papers sent to it that the fee had not been paid. This statement is no concession whatever, and in this case no one claims the fee has not been paid. On just what papers the discovery was based was not disclosed.
In this court importers’ counsel states in his brief that importers have never admitted that the fee was not paid in time. The correctness of that statement is not challenged by the Government. I submit that the statement in the main opinion that the concession was made is not supported by the record.
It is also argued in the majority opinion that the collector has made and returned a finding that the appeal fee was not seasonably paid, that this must be presumed to be correct, and that therefore it was incumbent upon importers to introduce before the classification board evidence tending to show that it was paid in time.
It is a novel proposition that after an appraisement has been made by a board of three, and returned to the collector with the accompanying statutory mandate that it shall be final and conclusive against all parties and not subject to review in any manner for any cause in any tribunal or court, that the collector may disregard the same, and by that act at once deprive it of its statutory immunity to attack as well as of the presumption of its correctness we have held attached thereto. It is in effect to say that the presumption of correctness that attaches to the collector’s action is superior to that which inheres in the judgment of the reappraisement board. While denying this, I recognize of course that the appraisal of that board may be held void if it is lawfully made to appear that it proceeded upon a wrong principle, contrary to law, or transcended the power conferred upon it by statute, or failed to comply with statutory provisions. But to establish these *163impeaching facts, unless they are conceded, the burden is upon the collector and therefore upon the Government in this case. A claim of the collector that such facts exist is not sufficient, neither can his alleged finding, made after final judgment has gone against him, fill the gap, and importers here were under no obligation to produce evidence as to the time when the appeal fee was paid.
In this connection the language of Justice Taney in Tucker et al. v. Kane (24 Fed. Cas. 268) is apposite. He said: “The appraisement must speak for itself and he construed by its own language; and if its validity is to be impeached by anything outside of the award it must be by testimony showing that the question referred was not decided or showing some misconduct on the part of the appraisers.”
Reference in the main opinion is made to the decision of the Board of General Appraisers in re-reappraisement found in T. D. 38667, G. A. 8421, andfrom that opinion it is concluded that at one timeit was admitted that the rubber stamp referred to in Judge Smith’s dissenting opinion showed that the fee was paid on May 10.
If it is proper to refer to that decision for the purpose of finding or supporting the finding of any fact, it should he known that the question there before the reappraisement board was whether on a petition by the United States the board would open the case and vacate the appraisement here involved. The matter was heard on the petition of the Government and no evidence was introduced other than the papers before us.
The board refused to vacate its appraisement. I am clear that it does not appear by the opinion in that case that any such admission was made. The opinion is too long to justify its incorporation here, but therein it is stated, referring to the Government’s petition, that “ the nearest approach to the allegation that the fee was not paid in time is that it is shown by the rubber stamp dated May 10, 1920, that the fee of one dollar was paid, the appeal having been filed May 7, 1920.”
Later in the opinion the board said, referring to this rubber-stamp entry and to certain erasures on the face of one of the papers before us:
The entry already referred to in the record, now defaced by zigzag pencil marks, indicates that the fee was paid, notwithstanding the rubber stamp to the contrary, though if the person who put the ink writing on that record had power to nullify the decision of the board, he probably also had power to deny that that fee was paid and mutilate that record too.
As to what is in fact shown by the so-called record of the collector that is among the papers before us, I do not care to add much to what Judge Smith has so well said. I agree with him that it is not relevant. I may say, however, that it contains, according to the collector’s own statement, only a part of the record before the re-appraisement board and embraces, he says, “the various pertinent facts necessary to the consideration of the protest.” It was his *164duty to submit the entire record. He had no authority to determine what was pertinent. He states the papers include a “supplementary notice of appeal to reappraisement.” No paper so entitled is before us. When he first forwarded the papers to the general appraiser for reappraisement he impliedly recognized and adjudged that appeal had been duly taken. So far as we know he may have appealed himself. When he appealed to the board of three he recognized that there had been an appraisement made by the single general appraiser. The jurisdiction of the board of three was lawfully invoked by transmission to it of the prescribed papers by the collector. —Larzelere v. United States (6 Ct. Cust. Appls. 510; T. D. 35154). It is significant to note that the statute does not provide that in order to clothe that board with jurisdiction of an appeal it is necessary that an appeal fee must have theretofore been paid.
On this phase of the case I conclude that the record of the re-reap-praisement contains nothing which tends to impeach its validity nor are any facts conceded that have that tendency. If the pretended finding of the collector, made after he received the final appraisement of the board of three, be regarded as admissible for any purpose, it fails to establish any such impeaching facts. Their existence must be shown by evidence. The collector was not vested with power to make such evidence by an alleged finding. He must prove the facts. His classification of merchandise is within his function and carries with it the presumption of correctness, but it is not so of the post mortem finding relied on here.
I venture to assert that it never has been held that after a reap-praisement or a so-called re-reappraisement (each of which is but an appraisement) has been made and duly certified to the collector he can by disregarding or rejecting the same thereby create any presumption whatever that overcomes the presumption that the ap-praisement is valid.
There is another view of this case that to me suggests a simple and safe rule for its determination.
It is still to be kept in mind that the real question in this case is whether or not from the record it appears that the collector was justified in rejecting in his liquidation the value fixed by the appraisement board.
The only objection to the validity of its appraisal is that the jurisdiction of the single general appraiser was not legally invoked. If that be assumed, how does it affect the judgment of the board of three?
As already pointed out, there is no provision of the statute that the validity of the judgment of a board of three is contingent upon the validity of the appraisal of the single general appraiser. The *165only prerequisite for an appeal by either the collector or the importer is that the former shall deem the appraisement too low or the latter that it is too high. The appeal is not required to be founded upon errors of fact or of law. The single general appraiser is not required to review the proceedings before the local appraiser nor is the board of three required to review the proceedings before either the local appraiser or the single general appraiser, or to remand the case to either of them for any purpose. The statute does not provide that the jurisdiction or the appraisement of either is to be determined by the jurisdiction or appraisement of the preceding appraiser. In any such case the tribunal making the last appraisement advises the collector of its appraisement either directly or through the general appraisers. The only purpose of an appeal is to ascertain the value of the imported merchandise and the appraisers are not for that purpose a judicial tribunal. In addition to this the statute provides that the importers’ appeal only shall be deemed finally abandoned and waived if the fee is not deposited; not that a subsequent or any appeal by the collector shall be affected thereby, and it is an appraisement made on a collector’s appeal that we are considering. If the appraisement of the board of three had been in favor of the collector could the importer on this record impeach it on the sole ground that he never had appealed or could the collector support it by a subsequent finriing that in fact the deposit was made within two days ?
In Origet v. Hedden (155 U. S. 288) the court said the question of dutiable value was not to be tried before the appraisers as if it were an issue in a suit in a judicial proceeding.
In Oelberman v. Merritt (123 U. S. 356) proceedings in appraisement were likened to those in arbitration.
In Burgess v. Converse (4 Fed. Cas. 726) an analogous principle was considered. The court said: “The call by the importer for the second appraisement on account of his dissatisfaction with the first is in the nature of an appeal; and there seems to be no good reason why, in such a case, the errors which have affected the first appraisement, which is superseded and rendered wholly immaterial by the appeal to the merchant appraisers, should be afterwards relied on or allowed to have any effect.” And later, “but if he demands a reappraisement, and that is regular, he waives all objection to the first which is superseded and rendered unimportant by the second on which the law in terms requires the collector to proceed as final and binding.”
In United States v. Loeb (107 Fed. 692) the Circuit Court of Appeals defining what constituted an appeal to the board of three said that the transmission to them of the designated papers clothed them with jurisdiction and that the case thereby came before them for examination and decision and that it was unimportant to know who was *166the appellant or why he appealed. See also Loeb v. United States (1 Ct. Cust. Appls. 385; T. D. 31479).
In the matter of Wolff & Co., T. D. 29628 (G. A. 6888), the Board of General Appraisers held, “It is unnecessary for us to pass upon the irregularity or the validity of the local appraiser’s action, for whatever irregularity may have occurred in that proceeding was cured by valid reappraisement.”
In Beer v. United States (1 Ct. Cust. Appls. 484; T. D. 31526), it was contended that an appraisement, reappraisement, and re-reap-praisement were invalid. We hold, “If the re-reappraisement by the Board of General Appraisers was valid, inquiry as to the validity of preceding appraisements is unnecessary. We therefore confine our discussion of the case in the main to the proceedings before the board of three general appraisers, which, if conducted in confoimity with the modes prescribed by the law, is final, and not the subject of review by any classification board of general appraisers or by this court. ”
In Oelrichs & Co. v. United States (2 Ct. Cust. Appls. 356; T. D. 32091), the importer appealed to the‘single general appraiser, then to the board of three, and then protested the liquidation upon its appraisal, claiming that the appraisal was invalid for want of jurisdiction because the collector had failed to designate the samples for examination as required by law. We held that the importer having thus invoked the jurisdiction of the appraisement board ought not to be heard to say that it could not perform its function, and citing Burgess v. Converse, supra, said “that if the importer demands a reappraisement and that reappraisement is regular, he waives all objections to the action of the local appraiser.”
In the United States v. Johnson & Co. (9 Ct. Cust. Appls. 258; T. D. 38215) it was stated that, “The appeal presents an issue relating to the validity of certain reappraisement proceedings. While the issue is tendered as to the validity of the appraisement proceedings before the single general appraiser, as well as on appeal before the board of three general appraisers, in our view of the case the latter alone is here determinative. ”
I am unable to see why these cases do not afford a rule for the decision of the one at bar. It may be conceded for the purpose of discussion that the appraisement by the single general appraiser was not valid. I think if the proceedings had stopped there, the collector might have rejected that appraisement as a basis of liquidation and his action should be sustained if on the -trial before the classification board it was conceded or proven that no appeal had been taken to the single general appraiser, but when the collector has invoked the jurisdiction of the board of three, as in this case, he must stand or fall upon the proceedings before that board, and unless he *167proves that it lawfully proceeded, its appraisal is conclusive upon him. I do not think the three methods of appraisement provided by statute are to be likened to or determined by the rules in courts of law regulating appeals from an inferior to a higher tribunal. Each of these appraising bodies has but one duty to perform and that is, to ascertain the value of the importation. They each proceed de novo and the judgment of one is not to be determined by the jurisdiction or judgment of the tribunal that has already functioned in the matter.
The rule of the majority opinion results in this: The collector may, in liquidation upon an appraisement found valid by the classification board and this court, proceed to reexamine papers in his files, conclude and make a pretended finding that such papers should be differently interpreted than he first thought and found, reverse his first finding, make another directly opposite and thereby cast upon importer the burden of further litigation in which the papers and facts pertinent to be considered are such only as the collector in advance determines.
Such powers are not his.
The majority opinion closes in part with the statement: "The judgment of the Board of General Appraisers in re-reappraisement we think clearly shows on its face a lack of jurisdiction. ”
As an answer to this and without comment, I insert the material part of that judgment. It bears the proper title of the case and then states: “The foregoing appeal for re-reappraisement on merchandise described in the within invoice coming on to be heard in regular order before Board Three and after having proceeded according to the law governing such appeals, and upon the testimony and facts disclosed by the record, we do find that the actual dutiable value or wholesale price of the merchandise at the time of exportation in the principal markets of the country from whence exported, was as follows: Reappraised value affirmed. And we do hereby determine the value of such merchandise accordingly.”
I would affirm the judgment below.