United States v. American Exp. Co.

• Decision Date: 16 February 1910
• Docket Number: 464 (2,031).
• Citation: 177 F. 735
• Parties: UNITED STATES v. AMERICAN EXPRESS CO. et al.
• Court: U.S. District Court — District of Massachusetts

177 F. 735

UNITED STATES v. AMERICAN EXPRESS CO. et al.

No. 464 (2,031).

United States Circuit Court, D. Massachusetts.

February 16, 1910

The Board of General Appraisers sustained the importers' protest against the assessment of duty by the collector of customs at the port of Boston. The Board's opinion reads as follows:

McCLELLAND General Appraiser. These protests are against the assessment of duty at the rate of 10 cents a pound on the estimated weight of wool on Cape sheepskins, as class 1 wool. The returned weight of the wool is not disputed, but it is claimed that the wool so returned is of class 3, and dutiable at the rate of 3 cents per pound, under the provisions of paragraphs 358 and 360 tariff act of 1897 (Act July 24, 1897, c. 11, Sec. 1 Schedule K, 30 Stat. 183 (U.S. Comp. St. 1901, p. 1665)).

It is contended with almost stubborn insistence on the part of the government, as shown by the testimony and an elaborate brief that the classification of the said wool was correctly made by the collector, for the sole reason, as alleged, that it conforms to standard sample 137 deposited in the principal custom houses in the United States under authority of the Secretary of the Treasury, pursuant to the provisions of paragraph 352 of said act.

In G.A. 6,695 (T.D. 28,632) we considered and determined adversely to the government an issue in all respects comparable with that here involved, and we do not consider that anything, either by way of evidence or argument, has been presented by the government to lead us to depart from the conclusion therein reached.

It would seem as though the government's side of the issue has been presented upon an entirely erroneous theory, to wit: That since the government examiner was satisfied that certain of the wool found on these skins was comparable with standard sample 137, it must therefore be returned and classified as of the first class, and that there remains no power, either in the Board of General Appraisers or the courts, to change that classification, which is, in effect, contending that the persons chosen by the Secretary of the Treasury to select the standard samples contemplated by paragraph 352, and the official examiners passing the wool, were to be the sole arbitrators during the life of the tariff act under which such standard samples were chosen as to what wools should be included within the classes specified in the act.

Counsel for the government seems to lay much stress upon the words in paragraph 349, 'or other wools of merino blood, immediate or remote'; but we think, when it is considered that the growth on the skins of these so-called Cape sheep is a mixture of wool, hair, and kemp, with the two latter largely predominating, and that such sheep are a degenerate species, with only a trace of the merino blood left in some of them, and that the value of the so-called wool, after being pulled from the pelt and washed, ranges from 3 to 10 cents a pound, it is not difficult to conclude that such a mixture was never intended by Congress to be classified as wool of the first class, subject to a rate of duty almost, if not altogether, twice greater than the average price per pound for which it will sell in the market, without considering the cost of labor and the cost of washing.

It is not to be overlooked that the wool which is taken from these skins, considering the great aggregate of skins imported, is of infinitesimal value. The skins are primarily imported to be made into leather, and it is only in the necessary course of the preparation of such skins for tanning that this so-called wool must be removed from the pelts.

It is clearly our view that when Congress arranged the wool schedule of the tariff, dividing wools into classes, and vesting in the Secretary of the Treasury authority to deposit in the principal custom houses of the United States standard samples as guides for the classification thereof by collectors of customs, Congress contemplated only straight wools, and not such a combination of wool, hair, and kemp as is involved in these protests.

We see no reason to depart either from the reasoning expressed or the conclusion reached in G.A. 6,695, supra, and we therefore sustain the protests and reverse the decisions of the collector.

D. Frank Lloyd, Deputy Asst. Atty. Gen. (Charles D. Lawrence, Asst. Counsel, of counsel), for the United States.

Albert S. Hutchinson (Putnam B. Smith, of counsel), for the importers.

ALDRICH District Judge.

In this case the collector of customs at Boston assessed duty upon an importation of wool as in class 1 in accordance with sample No. 137, which was on file in the custom house in Boston as a standard for the classification of Cape of Good Hope native skin wool. These standard samples were officially arranged and established under the direction of the Secretary of the Treasury as authorized by and in pursuance of paragraph 352 of the tariff act of 1897, and the duty imposed was that required upon the first class of wools and hair provided by paragraph 357, reduced under paragraph 360 one cent per pound because the wools were on the skin at the time of the importation.

The action of the collector of customs was reversed by the Board of General Appraisers, and the case comes here on appeal from that tribunal.

Contrary to the view held by the Board of General Appraisers, I am inclined to view the authorized treasury regulation in respect to samples of wool in the Boston port as a government or department regulation, promulgated under power conferred by Congress upon the executive branch of the government, and as conclusive in respect to classification and quality except in cases, perhaps, where the issue is one of fraud or mistake; and whether relief upon that ground would be afforded by the courts rather than...