Kleberg & Co. v. United States

• Decision Date: 22 May 1933
• Docket Number: No. 3582.,3582.
• Citation: 71 F.2d 332,21 CCPA 110
• Parties: KLEBERG & CO., Inc., v. UNITED STATES.
• Court: U.S. Court of Customs and Patent Appeals (CCPA)

21 CCPA 110, 71 F.2d 332 (1933)

KLEBERG & CO., Inc., v. UNITED STATES.

No. 3582.

Court of Customs and Patent Appeals.

May 22, 1933.

Wm. L. Wemple, of New York City, for appellant.

Charles D. Lawrence, Asst. Atty. Gen. (John F. Kavanagh, Sp. Atty., of New York City, of counsel), for the United States.

Before GRAHAM, Presiding Judge, and BLAND, HATFIELD, GARRETT, and LENROOT, Associate Judges.

GRAHAM, Presiding Judge.

The appellant imported certain safety matches of the "strike-on-the-box" variety and entered the same at the port of New York on May 8, 1929. The shipment originated in Austria but was reshipped from Sweden. On March 23, 1931, the Secretary of the Treasury issued an order, T. D. 44718, 59 Treas. Dec. 642, as follows:

"To Collectors of Customs and Others Concerned:

"After due investigation in accordance with the provisions of section 201, antidumping act, 1921, I find that the industry of manufacturing safety matches of the strike-on-box type in the United States is being and is likely to be injured by reason of the importation into the United States of safety matches of the strike-on-box type from Austria, and that such safety matches of the strike-on-box type have been sold and are likely to be sold in the United States at less than their fair value."

After this importation was received, the local appraiser, under the provisions of section 201 (b) of the Anti-Dumping Act of 1921, 42 Stat. 11 (19 USCA § 160 (b), notified the Secretary of the Treasury, under date of February 19, 1930, that he suspected dumping as to this importation. It was as a result of this notice that the order of the Secretary was issued which is above quoted. Said section 201 (19 USCA § 160) appears in a marginal note.¹

After the issuance and promulgation of the said order of the Secretary, the local collector fixed an anti-dumping duty upon said merchandise under the provisions of section 202 of said Anti-Dumping Act (19 USCA § 161).

Thereupon the importer appealed to reappraisement, and the matter came on to be heard before Judge McClelland of the United States Customs Court. In the initiation of the proceedings before the single judge, the attorney for the importer simplified the issue by making the following statement:

"* * * In this case, if the court please, I will concede that if there were any warrant in law for the making thereof, the action of the appraiser in finding foreignmarket value of the merchandise in this case is correct. I would further concede, subject to the same conditions, that if there were any warrant in law for the making thereof, the appraiser's calculation of the importer's sales price or exporter's sales price, whatever he did compute, is also correct, and I will further concede, subject to the same conditions, that the appraiser has correctly performed the arithmetical computation in subtracting one figure from the other. This concession is confined to this case only. It does not extend to any other case or any other issue.

"I propose to try only one point in view of the concession I have just put on the record, and that is that the Secretary of the Treasury in making the alleged dumping finding in this case acted illegally and outside the powers conferred upon him by the statute."

The case was tried upon that issue before the single judge, who, after hearing the parties, sustained the contention of the importer and found a dutiable value equal to the entered values. The Government petitioned for a review, which was duly heard by the Second Division of the United States Customs Court. The Appellate Division reversed the judgment of the single judge and sustained the imposition of the dumping duty. From that judgment the importer has appealed.

In this court the appellant assigns several grounds of error, but its particular contentions are these: First, that the Secretary of the Treasury had no facts before him upon which he was justified in issuing the antidumping order in question; second, that the court below erred in not finding that it could judicially investigate the facts which were the basis of the Secretary's order; third, that the Secretary had no legal right to define the phrase "fair value" by means of a Treasury regulation, and that where such a regulation is made, it is not binding upon a court which reviews it; fourth, that the court below and this court should give a judicial construction to the phrase "fair value" as applied to the facts in this case; fifth, that the order of the Secretary was void as ultra vires, and that if it was within his statutory powers, the act authorizing it is unconstitutional and of no effect.

Various other suggestions are made, but these are the essential points involved.

On the hearing before Judge McClelland, the importer called three witnesses: Edward J. Dougherty, customs agent of the Treasury Department; Edwin Kleberg, treasurer and president of the importer; and Andrew W. Mellon, Secretary of the Treasury. In substance, Dougherty testified that in 1929 he received certain instructions from the Treasury Department, as a result of which he investigated the subject of dumping matches in the United States and injury to American industry thereby. He interviewed certain persons in the custom house in New York, and certain persons representing domestic match interests. When this agent's investigation was completed, his report was duly forwarded to the Secretary, through the Commissioner of Customs, in November or December, 1929. The contents of this report were considered confidential by the witness and were so held to be by the trial judge; however, the witness did testify at some length as to a comparison between prices of these and competitive American products in the markets of this country.

The witness Kleberg testified, in a general way, as to the selling prices of these and similar domestic matches in the markets of the United States. The attempt here, by the importer, was to establish what he designated as a "just price" for the imported product, in the markets of the United States, at that time.

The witness Mellon testified that he remembered the issuance of said order of March 23, 1931, T. D. 44718; that he caused an investigation to be made relative to the prices at which matches imported from Austria were sold in the United States in 1929, 1930, and 1931, by the witness Dougherty and the antidumping unit of the Customs Department. He further stated that he consulted with the assistant secretary in charge of the case, had the files, and familiarized himself with the facts and some of the arguments of counsel. In addition to acquainting himself with the files, he stated that he went further and discussed the matter with his assistant and with the undersecretary, and thereafter signed the order personally.

The Secretary stated that in ascertaining what the "fair value" of the imported matches was, he considered Treasury Regulations, article 712, 1923 Cust. Reg. 370, and applied the meaning of said article to said words. Said article appears in a marginal note.²

On March 27, 1931, counsel for the importer addressed a letter to the Treasury Department asking for permission to inspect the evidence "and other representations" upon which the Secretary acted. So far as the record shows, no such permission was granted. It fairly appears from the record that such failure to grant such permission was due to the fact that the Secretary considered such matters confidential.

It appears, therefore, that the Secretary of the Treasury did make such investigation as he thought necessary; that he did find that an industry in the United States, namely, the business of manufacturing safety matches of the strike-on-box type in the United States, is being, or is...