Commercial Solvents Corp. v. Mellon, 3738.
| Decision Date | 03 January 1922 |
| Docket Number | 3738. |
| Citation | 277 F. 548 |
| Parties | COMMERCIAL SOLVENTS CORPORATION v. MELLON, Secretary of the Treasury, et al. |
| Court | U.S. Court of Appeals — District of Columbia Circuit |
Submitted December 5, 1921.
Appeal from the Supreme Court of the District of Columbia.
B. H Warner, Jr., of Washington, D.C., and Edward P. Keech, Jr. of Baltimore, Md., for appellant.
Peyton Gordon and C. W. Arth, both of Washington, D.C., for appellees.
The Dye and Chemical Control Act, approved May 27, 1921, by title 5 provides, among other things, that--
'No synthetic organic drugs or synthetic organic chemicals shall be admitted to entry or delivered from customs custody in the United States * * * unless the Secretary (of the Treasury) determines that such article or a satisfactory substitute therefor is not obtainable in the United States * * * in sufficient quantities and on reasonable terms as to quality, price and delivery,' etc.
Hon. Edward Clifford, Assistant Secretary of the Treasury, with the approval of Mr. Secretary Mellon, issued an order on September 30, 1921, that 'fusel oil should not be considered to be a synthetic organic chemical within the meaning of the act,' and that permits for its release from customs custody were not required.
The Commercial Solvents Corporation, hereafter referred to as the corporation, manufactures at its plant in Indiana butyl alcohol, which it alleges can be used, and is in fact being used, by practically all of the former users of fusel oil as a satisfactory and efficient substitute for that oil. It asserts that fusel oil is a synthetic organic chemical, and that its entry into the United States is prohibited by the act, since the corporation's plant has ample capacity to manufacture a satisfactory substitute for it, is able to supply all the needs and demands for such oil, and offers the same for sale at a reasonable price, and on even and equal terms with all purchasers, having regard for the quantities of their purchases, any difference in price being merely sufficient to equalize the difference in the cost of selling in large or small quantities. It also alleges that, if the Secretary of the Treasury should permit the importation of fusel oil in accordance with the order just mentioned, the corporation would sustain great loss and damage.
Accordingly it filed its bill in the Supreme Court of the District, praying for an injunction forbidding the Secretary and the other appellees to give any instruction to any collector of a port of the United States, or other person, permitting the importation of fusel oil, except in the special cases provided for in the act. In response to a rule to show cause the Secretary of the Treasury and his associate appellees filed an answer. Upon a consideration of the bill and answer, an injunction pendente lite was denied. Thereupon the plaintiff submitted the cause on its bill alone. The court, being of the opinion that the bill did not state a sufficient cause for the relief sought, dismissed it, and the corporation brings the case here for our review.
The case must be disposed of on the assumption that all the allegations of the bill are true. If, when thus taken, they do not disclose a cause for action, the decree must be affirmed.
The act in question operates to extend a privilege to manufacturers of certain chemicals and their substitutes. It was competent for Congress to fix the conditions under which the privilege should be enjoyed. Calhoun v. Massie, 253 U.S. 170, 176, 40 Sup.Ct. 474, 64 L.Ed. 843. Among them is the one that the Secretary of the Treasury shall administer the act. To do this he has implied authority to interpret it, because that is necessary to the performance of his administrative duty. Hall v. Payne, 254 U.S. 343, 41 Sup.Ct. 131, 65 L.Ed. . . . .
The corporation alleges in its bill that various importers and would be importers of fusel oil made representations to various bureaus and officials of the Treasury Department to the effect that such oil is not a synthetic organic chemical; that these representations were considered by the appellees in their respective capacities as Chief of the Dye and Chemical Control Section, as Chief of the Customs Division, and as Secretary of the Treasury; that the Secretary of the Treasury decided that fusel oil was not a synthetic organic chemical, and that its importation, except subject to special license, etc., was not prohibited by the terms of the act. It also alleges that this decision, made after the consideration just mentioned, is not correct, and asks the court to review and reverse it, on the assumption that the court has the right to exercise its independent judgment with respect to the facts set forth in the bill and decide the case on the merits; in other words, that we have a right to substitute our judgment for that of the Secretary, if we think he was wrong, even though he was acting within his jurisdiction when he rendered his decision.
With commendable candor counsel for the corporation say:
'It is not contended in this case that the Treasury Department has acted in a capricious or arbitrary manner.'
This being admitted have we the power to grant the relief prayed? The law is well settled that we have not. New Orleans v. Paine, 147 U.S. 261; Riverside Oil Co. v. Hitchcock, 190 U.S. 316, 23 Sup.Ct. 698, 47 L.Ed. 1074; Ness v. Fisher, 223 U.S. 683, 32 Sup.Ct. 356, 56 L.Ed. 610; Duncan Townsite Co. v. Lane, 245 U.S. 308, 38 Sup.Ct. 99, 62 L.Ed. 309; Houston v. St. Louis Packing Co., 249 U.S. 475, 484, 39 Sup.Ct. 332, 63 L.Ed. 717, and cases cited; Brougham v. Blanton Manufacturing Co., 249 U.S. 495, 39 Sup.Ct. 363, 63 L.Ed. 725; Hall v. Payne, 254 U.S. 343, 41 Sup.Ct. 131, 65 L.Ed. 295; Handel v. Lane, 45 App.D.C. 389; Ashley v. Roper, 48 App.D.C. 69; Hall v. Lane, 48 App.D.C. 279.
In the Riverside Oil Co. Case the court, speaking of a decision of the Secretary of the Interior, said:
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