Macy v. Browne

• Decision Date: 13 July 1914
• Citation: 215 F. 456
• Parties: MACY et al. v. BROWNE et al.
• Court: U.S. District Court — Southern District of New York

215 F. 456

MACY et al. v. BROWNE et al.

United States District Court, S.D. New York.

July 13, 1914

Joseph H. Choate, Jr., of New York City, for complainants.

William L. Wemple, Asst. Atty. Gen., of New York City, for defendants.

HOUGH District Judge.

Complainants lately proferred for entry into the United States at the port of San Francisco certain tea, which the collector of that port rejected, as inferior in purity to the established standards, because of the presence in the imported tea of certain coloring matter. In so doing the collector acted in assumed compliance with the 'act to prevent the importation of impure and unwholesome tea,' approved March 2, 1897, and of the regulations established by the Secretary of the Treasury pursuant to power conferred upon him by said statute. protested against the collector's decision ^[1] and caused 'the matter in dispute to be referred to a board of three United States General Appraisers. ' The three defendants herein are the General Appraisers (commonly called the 'Tea Board') to whom complainants took what is practically an appeal from the collector's decision. The object of this suit is to obtain the directions of this court as to how the tea board shall decide the matter submitted to it pursuant to the statute, and on the motion of the complainants themselves. It would hardly be admitted by the draftsman of the bill that what I have just said fairly summarizes the purpose of suit, yet I think the justice of the comment will appear from analysis of proven facts and some study of the statute.

The act of 1897 provides for the annual establishment of standard samples of tea, to be kept in stock, at convenient ports of entry, and all teas 'of inferior purity, quality, and fitness for consumption to such standards' shall not be brought into the United States. The ascertainment of fitness or unfitness is intrusted in the first instance to an examiner, and from his decision either the government or importer may 'refer the matter in dispute' to the tea board. This board must consist of General Appraisers, whose general duties, tenure of office, and presumed qualifications are too well known to need further comment, but that the appraisers, when constituting the tea board, are vested with discretionary powers of at least a quasi judicial nature seems so plain as to require no more than statement.

Admittedly however, any test, inspection, or examination of tea, whether by a single examiner or the board, must be conducted in the manner prescribed by statute. Such prescription is found in section 7, which requires that the--

'purity quality and fitness for consumption (of tea under investigation) shall be tested according to the usages and customs of the tea trade, including the testing of an infusion of the same in boiling water, and if necessary, chemical analysis.'

The language quoted gains much in clearness, when something is learned of the growth, varieties, preparation, and marketing of the tea leaf.

'Quality,' as used in this act, evidently refers to the grade or fineness of the leaf, depending principally on whether the leaf was, when plucked, tender and young or more mature, and also whether the plant producing the leaf was of the best kind or growing under favorable conditions.

'Purity' with equal clearness refers to the presence or absence of foreign substances, especially those which would be regarded as foul or dirty; but any adulterant, however cleanly or innocuous per se, would detract from purity.

'Fitness for consumption' is a phrase which in my opinion adds little, if anything, to the powers conferred, or limitations imposed by the statute; nor has the evidence shown any way in which tea can be unfit for consumption without also being woefully lacking in quality and purity.

The purity of tea has long been debased by 'facing' or 'coloring,' or perhaps both simultaneously. Facing is often (if not usually) intended to increase weight, by the admixture of such materials as talc, etc. Coloring has long been thought desirable for 'green' teas, of which the color of some (if not most) grades is obtained or improved by mixing Prussian blue, ultramarine, or indigo with the tea while it is being dried. One grain of Prussian blue will color seven pounds of tea; and this substance (which is the 'lead' or writing part of a 'blue pencil') seems the commonest pigment in use.

In some (at least) parts of China, the preparation of tea is carried on by small farmers, the leaves are dried in mud huts, in primitive ovens, and altogether under conditions necessarily resulting in the deposit of dust and 'plain dirt' in the tea leaves. Teas having been colored for generations in these same huts, it is quite possible that forgotten particles of coloring matter may get into tea which it was not intended to color, i.e., change the appearance to the eye. In other words an uncolored tea may contain some coloring matter.

The customs authorities of this country have long tried to exclude colored teas; and the Secretary of the Treasury, having power under the statute to enforce 'the provisions of this act by appropriate regulations,' has required examiners and the tea board to use what is known as the 'Read Method' to 'examine for artificial coloring or facing matter. ' Reg. 22. It is further provided that--

'should a tea prove * * * inferior to the standard in any one of the requisites, viz.: Quality, quality of infused leaf, or artificial coloring or facing, it shall be rejected notwithstanding that it be superior to the standard in some of the qualifications. ' Reg. 23.

The Read method consists in calcining, under pressure of a spatula and on a piece of clean white paper, a small portion of the tea under investigation....