Star-Kist Foods, Inc. v. United States

• Decision Date: 15 December 1959
• Docket Number: Customs Appeal No. 4988.
• Citation: 275 F.2d 472
• Parties: STAR-KIST FOODS, INC., Appellant, v. UNITED STATES (Bruno Scheidt, Inc., Party in Interest), Appellee.
• Court: U.S. Court of Customs and Patent Appeals (CCPA)

275 F.2d 472 (1959)

STAR-KIST FOODS, INC., Appellant, v. UNITED STATES (Bruno Scheidt, Inc., Party in Interest), Appellee.

Customs Appeal No. 4988.

United States Court of Customs and Patent Appeals.

December 15, 1959.

Lamb & Lerch, John G. Lerch, New York City (David A. Golden, New York City, of counsel), for appellant.

Shipley, Akerman & Pickett, Washington, D. C., Carl L. Shipley, Washington, D. C., amici curiæ.

George Cochran Doub, Asst. Atty. Gen., Richard E. FitzGibbon, Chief, Customs Section, Samuel D. Slade, Herman Marcuse, trial attorneys, Washington, D. C., of counsel (Geo. S. Leonard, trial attorney, Washington, D. C., of counsel), for the United States.

Before WORLEY, Chief Judge, and RICH, MARTIN and SMITH, Judges, and Judge WILLIAM H. KIRKPATRICK.^*

MARTIN, Judge.

This appeal arose out of a protest filed by Star-Kist Foods, Inc., an American producer of canned tuna fish packed in oil and of tuna fish packed in distilled water (a "dietetic pack"). The protest was filed pursuant to section 516(b) of the Tariff Act of 1930, as amended, 19 U.S.C.A. § 1516(b), and attacked the assessment made by the Collector of Customs, Port of New York, of an import of tuna fish packed in brine at 12½ per centum ad valorem. The Collector assessed the imported merchandise in accordance with paragraph 718(b) of the Tariff Act of 1930, 19 U.S.C.A. § 1001, par. 718(b), as modified by a trade agreement with Iceland, T.D. 50956.¹ StarKist asserted that the goods were dutiable at the rates imposed by Congress in paragraph 718(b).

Section 516(b) provides in pertinent part:

"Classification. The Secretary of the Treasury shall, upon written request by an American manufacturer, producer, or wholesaler, furnish the classification of and the rate of duty, if any, imposed upon, designated imported merchandise of a class or kind manufactured, produced, or sold at wholesale by him. If such manufacturer, producer, or wholesaler believes that the proper rate of duty is not being assessed, he may file a complaint with the Secretary of the Treasury setting forth a description of the merchandise, the classification, and the rate or rates of duty he believes proper, and the reasons for his belief."

Then follow the steps which the Secretary of the Treasury must take, and the action which the manufacturer, producer, or wholesaler may take if he disagrees with the Secretary's decision. Such permissive action includes the filing of a protest.

In a contest between the parties to the instant litigation, this court held, in a decision reported at 45 CCPA 16, C.A. D. 666, that Star-Kist Foods, Inc., was a manufacturer or producer of the same class or kind of merchandise as that imported within the meaning of section 516 (b) thereby reversing the decision of the Customs Court; Star-Kist was held to be entitled to maintain its protest, and the cause was remanded for action on the merits. It is from the judgment on remand that the instant appeal has arisen.

Appellant asserts two reasons for objecting to the Secretary's action refusing to disturb the collector's assessment of the imported tuna fish at the reduced duties under the trade agreement with Iceland. Each ground, it is asserted, requires a holding that the trade agreement, by virtue of which the duty on brine packed tuna fish was reduced from 25% to 12½% ad valorem, is null and void.

The first reason urged by appellant is that the Trade Agreements Act of 1934,² by authority of which the trade agreement was negotiated, is null and void as being an unconstitutional delegation of legislative powers by the Congress to the President of the United States. Specifically, Star-Kist alleges that Congress has improperly attempted to delegate its legislative powers which are vested in it by the following Constitutional provisions:

Article I, Sec. 1:

"All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives."

Article I, Sec. 7:

"All bills for raising Revenue shall originate in the House of Representatives; but the Senate may propose or concur with Amendments as on other Bills."

Article I, Sec. 8:

"The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defense and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States;

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"To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes; * * *."

Second, appellant maintains that the trade agreement with Iceland, consummated under the provisions of the Trade Agreements Act of 1934, is a treaty and is therefore null and void because it was neither negotiated with the advice and consent of the Senate nor did two-thirds of the Senate concur in its execution as is required by Article II, Section 2, clause 2 of the Constitution, which reads as follows:

"He the President shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur; * * *."

Appellant maintains further that the proclamation of the President pronounced in connection with this trade agreement is also null and void.

We shall treat these questions in the order in which we have outlined the contentions of appellant.

At the outset of this discussion it is well to bear in mind that this court has no authority to chart a new course in jurisprudence in a field in which precedents have been established by the Supreme Court. It behooves us, therefore, to endeavor to propound the principles governing the issues presented here as deduced from the pronouncements of that Court.

The first case coming to our attention which we consider pertinent is The Aurora v. United States, 7 Cranch 382, 3 L.Ed. 378. That was an appeal from the District Court of Orleans, condemning the cargo of the brig Aurora imported from Great Britain in violation of the non-intercourse act of March 1, 1809. Among other questions, the case involved the right of Congress to enact legislation which predicated the revival of an expired law upon a proclamation by the President attesting to the happening of certain events. It was argued that this procedure amounted to an unconstitutional delegation of legislative powers. In upholding the act, the Supreme Court said:

"* * * we can see no sufficient reason, why the legislature should not exercise its discretion in reviving the act of March 1st, 1809, either expressly or conditionally, as their judgment should direct. The 19th section of that act, declaring that it should continue in force to a certain time, and no longer, could not restrict their power of extending its operation, without limitation upon the occurrence of any subsequent combination of events."

Another decision of the Supreme Court significantly relevant to the case at bar is Field v. Clark, 143 U.S. 649, 12 S.Ct. 495, 36 L.Ed. 294. That suit was brought by importers to obtain a refund of duty claimed to have been illegally exacted upon imported merchandise under the Tariff Act of 1890, 26 Stat. 567. The importers protested against the assessment alleging, inter alia, section 3 of that act to be an unconstitutional delegation of legislative and treaty-making powers. It provided, "That with a view to secure reciprocal trade with countries producing the following articles * * * whenever, and so often as the President shall be satisfied that the Government of any country producing * * * such articles, imposes duties or other exactions upon the agricultural or other products of the United States, which in view of the free introduction of * * * such articles into the United States he may deem to be reciprocally unequal and unreasonable, he shall have the power and it shall be his duty to suspend, by proclamation to that effect, the provisions of this act relating to the free introduction of * * * such articles for such time as he shall deem just, and in such case and during such suspension duties shall be levied, collected, and paid upon * * * such articles." There followed a list of the duties to be paid on those specific commodities. After reviewing many acts, the first being passed during the Washington administration, which delegated to the President power to lay embargoes and other restrictions on imports and exports whenever he felt that foreign countries were discriminating against the United States in matters of trade or for various other reasons, the Court stated:

"It would seem to be unnecessary to make further reference to acts of Congress to show that the authority conferred upon the president by the third section of the act of October 1, 1890, is not an entirely new feature in the legislation of congress, but has the sanction of many precedents in legislation. While some of these precedents are stronger than others, in their application to the case before us, they all show that, in the judgment of the legislative branch of the government, it is often desirable, if not essential, for the protection of the interests of our people, against the unfriendly or discriminating regulations established by foreign governments, in the interests of their people, to invest the president with large discretion in matters arising out of the execution of statutes relating to trade and commerce with other nations. If the decision in the case of The Brig Aurora had never been rendered, the practical construction of the constitution, as given by so many acts of congress, and embracing almost the entire period of our national existence, should not be overruled, unless upon a conviction that such legislation was clearly incompatible with the supreme law of the land. Italics ours.

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"That Congress cannot delegate legislative power to the president is a principle universally recognized as vital to the integrity and maintenance of the system of government ordained by

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