In respect of these importations, it must be assumed that the bags were not, in fact, all of American manufacture, or substantially so.

The opinion of the general appraisers stated that 'it was admitted that there were bags of foreign manufacture and of American manufacture, all indiscriminately mingled together, no attempt being made, on entry or afterwards, to separate from these enormous totals of goods of the same class those claimed to be relieved from duty, accompanied by the proof establishing such indulgence.' The examiner testified that he 'in some cases examined every bale of the whole entire invoice'; that he used his judgment 'to try to open sufficient to get at the classification of the goods'; and that where he opened the bales, and examined them, he found of foreign make in general 'from seventy-five to eighty per cent.' Indeed, we do not understand the importers to deny that these importations contained foreign-made bags.

Under title 33 of the Revised Statutes a duty was imposed on grain bags, except those manufactured in the United States, and exported containing American products, declaration having been made of intent to return the same empty. Rev. St. §§ 2504, 2505.

By section 7 of the act of February 8, 1875 (18 Stat. 307, 308, c. 36), it was provided: 'That bags, other than of American manufacture, in which grain shall have been actually exported from the United States, may be returned empty to the United States free of duty, under regulations to be prescribed by the secretary of the treasury.'

Section 6 of the tariff act of March 3, 1883 (22 Stat. 488, 189, c. 121), provided that on and after July 1, 1883, 'the following sections shall constitute and be a substitute for title 33 of the Revised Statutes.' The provision in regard to empty returned bags of American manufacture was re-enacted in substance in the free list, but that of section 7 of the act of 1875 was omitted, and bags, excepting bagging for cotton, were made dutiable.

Paragraph 493 of the tariff act of 1890 retained the same exemption from duty upon returned empty bags of American manufacture, and was silent in regard to returned empty foreign-made bags which were filled when exported.

In view of this legislation, Acting Attorney General Maxwell advised the secretary of the treasury, July 20, 1893, that the provision of section 7 of the act of 1875 exempting foreign made grain bags was repealed. 20 Op. Atty. Gen. 630. This ruling was followed and approved by the treasury department, August 22, 1893 (Syn. T. D. 14,281); and the same ruling was made by the board of general appraisers, February 3, 1894, in Kent v. U. S., G. A. 2448, as it had been in prior decisions; by Judge Lacombe, in effect, April 21, 1891, in Re Straus, 46 Fed. 522; and specifically by Judge Townsend in Kent v. U. S., 68 Fed. 536, June 2, 1895. The latter case was carried to the circuit court of appeals for the Second circuit, and the decree affirmed, April 7, 1896. 38 U. S. App. 554, 19 C. C. A. 642, and 73 Fed. 680. The rule applied was that, 'when a later statute is a complete revision of the subject to which the earlier statute related, and the new legislation was manifestly intended as a substitute for the former legislation, the prior act must be held to have been repealed;' and the opinion of Judge Shipman leaves nothing to be added in support of the conclusion reached.

Foreign-made bags, then, being dutiable at two cents per pound under paragraph 365 of the act of October 1, 1890, and these bales being permeated with bags of foreign manufacture, the appraiser reported all the bags as dutiable, and the collector so assessed them.

But the importers insist that this assessment was illegal, because of the insufficiency or invalidity of the examination, or of the absence of a statute specifically applicable, or because it was not confined to foreignmade bags.

Paragraph 493 required proof of the identity of articles entered as exempt thereunder, and this was not only repeated in the regulations, but article 336 required 'verification, after examination, by the appraiser, with an indorsement stating whether the articles are of domestic or foreign manufacture.' By section 2 of the customs administrative act of June 10, 1890 (chapter 407), all invoices must contain a correct description of the merchandise, signed by the manufacturer, or by the person owning or shipping the same, or by his duly-authorized agent, which, under section 5, might be adopted by the domestic consignee or owner, who, by section 9, was made liable for the employment or use of any fraudulent or false invoice or statement by means whereof the United States may be deprived of lawful duties. Under section 10 it was the duty of the appraiser to ascertain, estimate, and appraise the actual market value and wholesale price of merchandise imported, and the number of yards, parcels, and quantities. And evidently this ascertainment involves character and quality as well as value, since the statement, invoice, or entry must be true in respect of the character of the goods as well as of their value. 26 Stat. 131, 136.

On the question of identity, then (which, under the law, includes the question of country of manufacture), the production of the papers required by the regulations are not conclusive proof, and if the appraiser, after actual examination had, decides that the goods are not as described, but are such, in fact, as to fall within a different classification, and so reports to the collector, his judgment must stand, unless reversed on reappraisement, or by the board of general appraisers, on protest filed.

As to these bags, the examiner reported to the appraiser his finding of a very large percentage of foreign-made bags in the shipments, and the appraiser reported that he found the shipments to contain bags of foreign manufacture, and that the importations were dutiable at two cents per pound under paragraph 365.

If the importers were not satisfied with the examination made, and objected to the competency of the examiner and appraiser, they should have applied for a re-examination; but they did not do this, nor did they offer evidence before the board of general appraisers tending to establish an objection on that ground.

But it is said that the appraisement was invalid because the examination was not in accordance with section 2901 of the Revised Statutes. That section, however, was intended for the benefit of the government, and we have held that it is not mandatory, and that official acts are not invalidated for want of strict compliance therewith. Erhardt v. Schroeder, 155 U. S. 125, 15 Sup. Ct. 45; Origet v. Hedden, 155 U. S. 228, 15 Sup. Ct. 92.

'The collector shall designate on the invoice at least one package of every invoice, and one package at least of every ten packages of merchandise, and a greater number should he or either of the appraisers deem it necessary, imported into such port, to be opened, examined, and appraised, and shall order the package so designated to the public stores for examination; and if any package be found by the appraisers to contain any article not specified in the invoice, and they or a majority of them shall be of opinion that such article was omitted in the invoice with fraudulent intent on the part of the shipper, owner, or agent, the contents of the entire package in which the article may be, shall be liable to seizure and forfeiture on conviction thereof before any court of competent jurisdiction; but if the appraisers shall be of opinion that no such fraudulent intent existed, then the value of such article shall be added to the entry, and the duties thereon paid accordingly, and the same shall be delivered to the importer, agent, or consignee. Such forfeiture may, however, be remitted by the secretary of the treasury on the production of evidence satisfactory to him that no fraud was intended.'

Assuming that fraudulent intent was lacking, these bags were not held for forfeiture, but the collector, in effect, added them all to the entries, leaving it to the importers to prefer such claim to exemption as they might consider they were entitled to.

Section 2901 was brought forward from section 32 of the act of March 2, 1861 (12 Stat. 197, c. 68), and on December 28, 1868, Mr. Secretary McCulloch made the following ruling:

At that time the law imposed a duty of 12 cents per pound on all woolen rags, and admitted free rags composed of cotton and linen and intended for the manufacture of paper; and 21 bales of rags brought into the country from Canada, and containing at least 40 per cent. of woolen rags, though imported as containing rags for the manufacture of paper, had been seized. The matter being referred to the secretary, he ruled, in a letter addressed to the collector of customs at Rochester, as follows: 'If you are satisfied that there was no intention on the part of the importers to conceal the dutiable rags by mingling them with others free of duty, you will not hold them for condemnation, but will allow the parties to separate such as are dutiable from such as are not so, and make entry accordingly, paying the proper duty on the former class. These instructions are to be considered as applicable only to such bales as contain so large a proportion of woolen rags as to render it worth while to collect a duty. Forty per cent. of woolen rags is, however, much too large a percentage to be allowed entry as free goods.'

Again, in July, 1890, it was held by the treasury department that where cargoes of anthracite and bituminous coal were imported, so mixed as to render it impracticable to separate the free from the dutiable coal for the purpose of the accurate weighing of each kind, the whole cargo should be treated as dutiable. T. D. 10,098, Syn. 1890.

The general policy of the law is indicated in the statutory requirements that, where goods of different qualities or different values are mingled, or are composed of material of different values, the highest rate of duty shall be imposed, as in the familiar instances of the classification of articles composed of two or more materials, at the rate of duty charged on the component material of chief value; in section 2911 of the Revised Statutes, that whenever articles composed wholly or in part of wool or cotton, of similar kind, but different quality, are found in the same package, charged at an average price, the appraisers shall adopt the value of the best article as the average value; in section 2912, that when bales of wool of different qualities are embraced in the same invoice at the same prices whereby the average price is reduced more than 10 per centum below the value of the bale of the best quality, the value of the whole shall be appraised according to the value of the bale of the best quality, and that no bale, bag, or package shall be liable to a less rate of duty in consequence of being invoiced with wool of lower value; and in section 2910, that: 'When merchandise of the same material or description, but of different values, is invoiced at an average price, and not otherwise provided for, the duty shall be assessed upon the whole invoice at the rate to which the highest valued goods in such invoice are subject.'

Numerous provisions exist in the statutes and regulations designed to protect the public treasury from the bringing in of goods at a less rate of duty than they ought to pay under cover of association with goods properly subject to the lower amount; and the protection intended to be secured ought, on principle, equally to be accorded in respect of dutiable goods invoiced indiscriminately with free goods.

Of these seven importations, according to the importers, all the bales in two of them, and 10 per cent. of those in three of them, were ordered to she appraiser's store, while as to two of them the number taken for examination fell a little short of 10 per cent.; and of all these bales 100 were opened. It appeared also that all the merchandise covered by all the invoices was of the same character and description. Since the bales that were opened were found to contain foreign-made bags in large numbers in importations claimed to consist solely of Americanmade bags, it is not easily seen how the examination of a larger number of bales would have affected the result arrived at by the appraiser. And, as before observed, if the importers believed that they had sustained injury because more bales were not opened, they should have applied for a re-examination, and they might have produced evidence before the board of general appraisers to maintain their claim that the bags were American-made, notwithstanding the return of the examiner and the report of the appraiser, or they might have protested on the ground that the duty should have been levied only on part thereof, and tendered evidence to support that contention.

If they had furnished evidence of the number of bags of domestic manufacture and the number of bags of foreign manufacture, or had sought a re-examination with the view to an adjustment by proportion, and that had been had, then the collector might have assessed the foreign bags so ascertained, and admitted the American bags free from duty. But it was for the importers, and not for the government, to make the separation on which such a claim for relief would have rested, or, at least, to have invoked the rule of proportion based on a re-examination.

The importers contended that they had complied with the law and the treasury regulations by furnishing certain statements of the shippers as to the origin of the goods, and certain certificates as to their exportation filled with wheat, and that this prima facie evidence of the bags being of the manufacture of this country had not been disproved. But, if it were admitted that these papers made a prima facie showing, that showing was overturned when it appeared that foreign-made bags in large numbers made up the importations.

The remedies provided by the act of June 10, 1890, furnish the equivalent for the action against the collector, which was originally the remedy for an illegal exaction of duties (U. S. v. Passavant, 169 U. S. 16, 18 Sup. Ct. 219; Schoenfeld v. Hendricks, 152 U. S. 691, 14 Sup. Ct. 754); and as in that action, so in this proceeding, the importer must establish the illegality in order to recover back duties paid under protest; and this, in a case like the present, involves, in substantiating that contention, the making proof of the identity of the merchandise (Earnshaw v. Cadwalader, 145 U. S. 247, 262, 12 Sup. Ct. 851; Erhardt v. Schroeder, 155 U. S. 125, 15 Sup. Ct. 45).

Moreover, where merchandise liable in large part to duty is entered as exempt therefrom the collector has the right to assume that the mingling was intentional, and with design to evade the revenue laws; and hence, even where the confusion of goods is accidental, or not fraudulent in fact, and forfeiture is not incurred, it yet devolves on the importer to show what part of the whole he contends should not be taxed.

But these importers planted themselves on the ground that all these bags were exempt under the act of 1875; or, if not, that the assessment was wholly void for insufficient examination, or illegal except as to foreignmade bags, which it devolved upon the government to segregate from the common mass.

In the case of Kent, already referred to, it was decided by the board of general appraisers, February 3, 1894 (G. A. 2448), that the act of February 8, 1875, was not in force, and a reliquidation was ordered for a classification according to the proportion of foreign and American bags found in two bales which, by agreement, had been examined as representative bales, bag by bag. On the 2d of May, 1894 (G. A. 2610), the board of general appraisers held, in the matter of Balfour, Guthrie & Co., that, inasmuch as bags made of burlaps were dutiable, except such as are described in paragraph 493, it was the duty of all persons bringing in goods claimed to be free out of a class otherwise dutiable to prove affirmatively the facts constituting the exemption, and that they should separate and designate such merchandise, accompanied by the evidence required by law. This decision was reaffirmed May 5, 1894 (G. A. 2613), and again in the case before us.

On the 27th of April, 1894, which was after this case had been carried before the board of general appraisers and the evidence had been taken, the treasury department (T. D. 14,912) held that, in the absence of any provision of law to prevent the importation of both free and dutiable second-hand bags baled together, collectors might pursue the course of examining the designated number of packages, making such investigation of their contents as would reveal the character of the bags contained therein, and then adopt the finding of the appraisers as the basis of the assessment of duty on bales not examined. And since then it has been determined that importers of bags must have bags of foreign and bags of domestic origin packed separately. T. D. 18,425.

Notwithstanding the positions taken by the importers are, as we have seen, untenable, we are not disposed to hold, in the light of these rulings of the department, and the special circumstances of the case, that, if the proportion of dutiable bags sufficiently appeared or might reasonably have been ascertained, the circuit court could not have adjudged a recovery in that proportion, or directed a reliquidation.

A re-examination de novo is now impracticable, but it appears to us that the evidence taken by the board affords an adequate basis for a conclusion. The examiner testified that he found 'along about 80 to 86 per cent. foreign make'; 'in general from seventy-five to eighty per cent.'; and that, in his judgment, there was no invoice 'that would show over twenty-five per cent. of American bags'; yet he also said that he could not give specific details of each invoice, and that he 'supposed, if seventy-five per cent. of the bags in the bale were of foreign manufacture, it carried the whole of them.'

In view of this testimony, and considering that the statute was not strictly pursued in the examination (though we perceive no reason to doubt the faithfulness of the officials in the discharge of their duties), and the difficulties in the way of determining the make of the bags disclosed by the evidence, and bearing in mind that the taxation of so many of the bags as were of American manufacture operated as a penalty in spite of the concession that no fraud on the revenue was intended, we think it unnecessary to remand the cause for another hearing, and that the ends of justice will be best subserved by directing a decree for the refunding of one-fourth of the duties paid.

Decree reversed, and cause remanded, with a direction to enter such a decree.