United States v. Lueder

Decision Date01 February 1907
Docket Number126 (3,339).
Citation154 F. 1
PartiesUNITED STATES v. LUEDER.
CourtU.S. Court of Appeals — Second Circuit

The majority and dissenting opinions of the Board of General Appraisers read as follows:

Waite General Appraiser. The merchandise in question consists of sugar drainings, upon which duty was assessed at the rate of six cents per gallon under the provisions of paragraph 209 of the act of July 24, 1897, c. 11, Sec. 1, 30 Stat. 168 (U.S Comp. St. 1901, p. 1647). The rate of duty to be assessed is determined by polariscopic test. If the test indicates more than 56 degrees the duty should be assessed at six cents per gallon; if not, it should be assessed at three cents per gallon. The only question here is one of fact, as to what the test actually was at the time the goods were imported.

The goods were entered on February 1, 1901, and unloaded about the 19th of February. Samples were taken on the 19th, and tests made at different times from the 21st of February 1901, to some time in 1902. The test used as the basis for assessing the duty was arrived at by averaging a number of tests, and showed 56.025 degrees. Thus it will be seen that the reading was carried to one-fortieth of a degree. It is undisputed that drainings, after fermentation commences, show a higher reading by the polariscope, and that this increase continues during fermentation, and after fermentation ceases it returns to its normal state. The evidence indicates that the tests relied upon by the government were taken after fermentation had commenced, as the tests seem to have increased for a period after samples were taken, and then fallen away again until they indicated a condition considerably below 56 degrees. We are of opinion that the first tests taken by the government were more nearly correct than subsequent ones, and there was no occasion for taking the third test. Besides, tests made by other competent polariscopists indicate that the test relied upon was erroneous. Hence we conclude that the duty should be assessed as upon drainings showing a test of 56 degrees or under.

The protest is therefore sustained and the collector's decision reversed, with instructions to reliquidate the entry accordingly.

De Vries, General Appraiser (dissenting). The sole question here is the true polariscopic test of certain sugar drainings. They were assessed for duty at the rate of six cents per gallon, as testing 56 degrees and above by the polariscope and are claimed to be dutiable at the rate of three cents per gallon, as testing not above 56 degrees by the polariscope, under the provisions of paragraph 209 of the act of July 24, 1897 (30 Stat. 168, c. 11, Sec. 1 (U.S. Comp. St. 1901, p. 1647)) which, in so far as pertinent, is hereinafter quoted. The undisputed facts shown by the record and testimony may be epitomized as follows:

(1) The merchandise was imported per Vala, which arrived at the port of New York January 31, 1901. This merchandise was entered for consumption February 1, 1901, and the following note made on the entry: 'The within cargo damaged by water and a large quantity of molasses found and landed in 220 packages, February 18, 1901.'

(2) February 21, 1901, tests were made at the government laboratory of samples of the 220 packages of drainings. The examining officer on that day took from the drainings the requisite quantity for samples, intermixed the same, and sent to the laboratory one regulation can thereof. This was divided into two parts in the laboratory and each part tested by a different expert, with the results that one part showed a polariscopic registration of 55.9 degrees and the other 56 degrees, with the average of 55.95 degrees as the accepted test of that sample, all of which was duly certified to and recorded by the said examiner. On the same day the second can forwarded to the laboratory and likewise treated and tested and the results certified and recorded as 56.1 degrees, 56.1 degrees, average and accepted test of sample, 56.1 degrees. The average of the two accepted tests (55.95 degrees and 56.1 degrees) was then taken as the true test of that sample of the drainings, and due notice thereof given to the importer.

(3) No application was made by the importer within the required two days under the provisions therefor in article 1372, Customs Regulations, 1899, providing: 'Should the importer, within two official days after such notice has been sent to him by the appraiser, claim an error in the test so reported and request a retest of any mark or portion of a mark, such retest may be granted. * * * ' The following article of said regulations is pertinent and provides: '1373. In case of retest, the test upon which sugar shall be classified shall be the original test unless such test 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. ' On March 1, 1901, however, many days after time required, the importer filed a request in writing for a retest of the drainings in question, upon which the examiner, however, acted, and a retest was on March 2, 1901, made pursuant to the regulations with the following results: The first can tested 57 degrees and 57.1 degrees, average and accepted test of the can 57.05 degrees; the second can tested 56.6 degrees and 56.7 degrees, average and accepted test of that can 56.65 degrees, which was duly certified to and recorded by the examiner with the average of tests for the accepted test of the 'retest' sample 56.85 degrees. A further test was made in response to complaint of the importer on March 7, 1901, of one sample can resulting in 57 degrees and 57 degrees, with an average and accepted test of 57 degrees.

Counsel for importer in his brief contends that the first can, which was but one-half of the first sample, tested at the government laboratory, resulting in 55.9 degrees and 56 degrees, with an average of 55.95 degrees, was the 'test' of the drainings, and the second can, which was the other half of that sample, giving the result of 56.1 degrees and 56.1 degrees, with an average of 56.1 degrees, was a 'retest,' and that under article 1373 of the regulations quoted the former should be accepted as the actual test. I do not concur in this view. It required both of these cans to be tested and the average of the accepted tests of each to comply with the regulations for the first test. Moreover, importer had not as yet filed his request for a 'retest,' and the retest in compliance therewith was subsequently made. The 'retest' contemplated by the regulations (article 1373) is that made upon application of the importer as prescribed in the preceding article thereof (1372), and the test of a single can or part of a sample made by the laboratory at the instance of the examiner is not within purview of that regulation.

(3 1/2) On November 21, 1901, a test made under the supervision of this board in the government laboratory showed a polariscopic result of 52.6 degrees; second, 52.8 degrees; average and accepted test, 52.7 degrees.

(4) February 23, 1901, samples of these drainings were tested by Sherer Bros., chemists, of New York, who returned that they tested by the polariscope 54.7 degrees, and a member of that firm testified that a very recent test of the same sample showed only 50 degrees.

(5) February 28, 1901, samples of the drainings in question were tested by Sharples & Bennett, chemists, New York, who returned them at the polariscopic test of 53 degrees. On March 4, 1901, a subsequent test by the same firm of the drainings was returned at 52.6 degrees.

(6) It appears that the drainings, when examined by Mr. Sherer at least, were and had been undergoing fermentation; that that state usually lasts about 10 days; that its effect is to first raise the polariscopic test and then resume the normal, unless it continues to attack the sugar, in which case it reduces all the sugar to alcohol. It does not appear satisfactorily whether or not these drainings were undergoing fermentation at the time imported, nor when such fermentation commenced, and only by inference whether or not it ceased.

(7) It appears from the importer's witnesses that chemists are not able to read the polariscope within from .2 to 1 degree of one another, and that in molasses they sometimes vary 2 or 3 degrees in a test, and that commercially about .5 of 1 degree is allowed in both sugar and molasses test for such variations; that the government regulations are different in their requirements from the commercial tests, and Mr. Sherer stated: 'If I had followed the government articles, I would probably have got my readings .3 degrees .4 degrees higher than I did.'

(8) Subsequent tests made by A. Weichert, April 10, 1902, showed 52 degrees; by G. Grund and Charles F. Judd, April 11, 1902, showed tests of 54.8 degrees and 55 degrees, respectively. The applicable provision of law is as follows: '209. Sugars * * * concrete and concentrated molasses, testing by the polariscope; * * * molasses testing above forty degrees and not above fifty-six degrees, three cents per gallon; testing fifty-six degrees and above, six cents per gallon; sugar drainings and sugar sweepings shall be subject to duty as molasses or sugar, as the case may be, according to polariscopic test. ' Regulations were duly promulgated by the Secretary of the Treasury under authority of law (section 251, Rev. St. (U.S. Comp. St. 1901, p. 138)) for the enforcement of this act. Among other things they provide:

'Art. 1362. Raw or unrefined sugars not above No. 16 Dutch standard in color shall be separated by the experts in the examining room according to the marks, and the samples of each
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    • United States
    • U.S. District Court — Eastern District of New York
    • 9 Junio 1927
    ...of law. Cramer v. Arthur, 102 U. S. 612, 616, 617, 26 L. Ed. 259; Aldridge v. Williams, 3 How. 9, 29, 11 L. Ed. 469; United States v. Lueder (C. C. A.) 154 F. 1, 7, 8; United States v. Bartram Bros. (C. C. A.) 131 F. 833; Von Cotzhausen v. Nazro (C. C.) 15 F. 891, 897, affirmed 107 U. S. 21......

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