In re Sternbach

44 F. 413, 1890 U.S. App. LEXIS 1877

Opinion

LacoMbe, Circuit Judge.

It seems to me that it would tend to the best practical interpretation of this statute to hold that the importer may raise issues of fact by his protest. That it is thereupon the duty of the appraisers to determine one way or the other as to the questions of fact thus raised, and, (when called upon to certify their return into court) to certify their decision on those questions of fact, which will thus be the certification of fact called for by the statute. That being so, an order may issue directing the return of this “return” to the board of general appraisers for tbe purpose of obtaining from them a certificate (1) as to whether the goods here are or are not worsteds; (2) whether the secretary of the treasury did or did not see the goods covered by the entries.

Order entered accordingly.

In pursuance of the foregoing order of the court, and on December 3, 1890, the board of United States general appraisers filed the following amended return:

“To the Honorable 'Judge of the Circuit Court for the Southern District of New Yorh: The undersigned board of genera] appraisers, for further return to the order of said court, dated November 24,1890, do hereby certify as follows: (1) They find that the protests of the several importers in said eases admit the fact that the manufactures in question are composed wholly or in part of worsted, and they assume this fact to be true for the purposes of this case. (2) They And that the goods are imported cloths. (3) There is no evidence before the board tending to prove that the secretary of the treasury ever saw the goods in question, covered by said entries, or that he ever actually or formally announced his judgment upon their classification. The board accordingly assumes as true, for the purposes of this case, that the said-secretary never saw the said goods, nor formally classified them, nor otherwise acted in reference to the subject than by issuing the circular of May 13, 1890. contained in Synopsis No. 10,020 of Treasury Decisions, officially published.”

Whereupon the importers, claiming the same to be insufficient, moved the court for a further return, because they did not find as to the fact whether the goods in question were or were not manufactures of worsted, and not composed in part of wool, as by said order they were required to do, and their assumption of the fact to be true for the purposes of this case would not authorize this court or the United States supreme court to so assume, and because their return as to the action of the secretary of the treasury was also incomplete and uncertain, and is not helped by their reference to the circular of May 13, 1890. This latter motion came on to be heard before Lacombe, circuit judge, on December 22,1890.

It was claimed by counsel for the importer that the return of the board of United States general appraisers furnished no sufficient record for review, either by the United States circuit court or by the United States supreme court, as there were no findings nor a certificate of facts contained in said return. The United States district attorney contended that, as the original return of the board of United States general appraisers certified that no evidence was taken, it was impossible for the board to certify any statement of facts involved in the case further than they had already done; that, when they had delivered their decision in the case to the collector of the port, their jurisdiction over it ended, and they had no power of their own motion to reopen the case and take further testimony, nor had the court, any power to compel them to reopen the case to take further testimony; that section 15 of the act of June 10, 1890, provided a remedy for the importer in ease he desired further evidence to be taken, by an application to the court to-“refer it to one of said general appraisers as an officer of the court to take and return to the court such further evidence as may be offered” under, such rules as the court may prescribe, and such further evidence, with the aforesaid returns, shall constitute the record before the circuit court; that the proper remedy for the importer in a case -like the one under consideration was not to ask for a further or amended return, because the board of United States appraisers, not having taken any evidence, could make no further return in regard to the facts than they had already made, but to apply to the court for an order to refer it to one of said general appraisers as an officer of the court to take and return to the court such further evidence as might be offered by the importer, which, with the returns already filed, would then constitute the record upon which the circuit court should proceed to hear and determine the questions involved, as provided for in section 15 of the act of June 10, 1890.

After hearing full argument, the court made the following decision:

Lacombe, Circuit Judge. The petitioners imported certain woven fabrics into this port, claiming that they were “manufactures composed wholly or in part of worsted, not composed in part of wool.” By the tariff act of March 8,1883, a lower rate of duty was imposed upon such fabrics than upon those composed wholly or in part of wool. The subsequent act of May 9,1890, authorized and directed the secretary of the treasury to classify as woolen cloths all imports of worsted cloth. The collector liquidated the duty at the rate imposed by the tariff of 1883 upon woolen cloths. Dissatisfied with this decision, the importer filed his protest as provided in the administrative customs law of 1890, c. 407. By this, he claimed, among other things, that his goods were in fact “manufactures composed wholly or in part of worsted, not composed in part of wool;” and also that the secretary of the treasury never saw the goods covered by the entry, and never in fact classified them for duty. The protest, invoice, and other papers being transmitted to the board of general appraisers appointed under section 14 of the administrative act, it became their duty to examine and decide the case thus submitted, and their decision is by the statute made final and conclusive, except in cases where application is made to the circuit court in the manner provided by the act. Upon the case thus submitted, the board decided that “the collector’s action in assessing duty at the rate prescribed for woolen cloth on certain so-called ‘ worsteds,’ * * * being in accordance with the provisions of Tariff’ Ind; (New) par. 362, and the act of May 9, 1890, * * * is affirmed.”

Application was duly made to this court, under the provisions of section 15, upon proper averments of dissatisfaction with the decision of the board of appraisers as to the construction of the law and the facts respecting the classification of the merchandise, and praying for “a review of the questions of law and fact involved in such decision.” A concise statement of the errors of law and fact complained of was filed. In this it was stated that the errors of fact were “that said goods were determined to be woolen cloths, instead of manufactures of worsted, as in truth and fact they were;” and “that the secretary of the treasury has not seen the goods in question, and never in fact classified them as woolen cloths or otherwise.” Upon these papers an order was heretofore made by this court directing the board of appraisers to return the record and evidence taken by them, together with a certified statement of the facts involved in the .case and their decision thereon. In response thereto, return was made by the board of appraisers transmitting the record and their decision, supra. In lieu of any certified statement of the facts involved in the case, the return contained this clause: “The decision involving questions of law alone, no evidence was required or taken by the board in said cause.” Thereupon an order was'made by this court that the board of appraisers “make a further and complete return herein in which they shall certify to this court (1) whether the goods in question are or are not manufactures composed wholly or in part of worsted, not composed in part of wool; and (2) whether the secretary of the treasury did or did not see the goods covered by said entries, and whether or not he in fact classified said goods for duties.” To this order further return has been made by the board as follows:

“(1) They find that the protests of the several importers in said cases admit the fact that the manufactures in question are composed wholly or in part of worsted, and they assume this fact to be true for the purposes of this case. (2) They find that the goods are imported cloths. (3) Thefe is no evidence before the board tending to prove that the secretary of the treasury ever saw the goods in question, covered by said entries, or that he ever actually or formally announced his judgment upon their classification. The board accordingly assumes as true, for the purposes of this case, that the said secretary never saw the said goods, nor formally classified them, nor otherwise acted in reference to the subject than by issuing the circular of May 13, 1890, contained in Synopsis No. 10,020 of Treasury Decisions, officially published.”

Petitioners thereupon have moved for a further return, on the ground that those already made are insufficient, and not in compliance with the requirements of the statute. This contention seems well founded. Under the claim made in the protest, the actual composition of these articles is a “fact involved in the case.” Indeed, it is a most important fact, because if they are not worsted cloth the act of May 9th does not apply to them, and, if it should be held for any reason that said act was void, inoperative, or inapplicable, it could not be determined whether the duties were liquidated at the proper rate, unless it were known whether or not they were wholly worsted or wholly or partly wool. It seems to be the scheme of the statute that the board of general appraisers should certify into court not onty such facts as it deemed controlling, but generally the “facts involved in the case” submitted to it upon the invoice, protest, and other papers. Sections 14, 15. The action of the secretary of the treasury is also a “fact involved in the case” thus made. If it should be held by the courts that the act of May 9, 1890, requires that officer to make a specific finding in each case after examination of the goods, his action or non-action in that regard might be a controlling fact. Inasmuch as both these questions of fact are brought into the case by the protest, there should be a certified statement thereof and of the decision of the board of appraisers thereon before. the court can proceed to take further action, under section. 15.. Nor does such certification find its equivalent in the statement made by. the board that the protests of the importers admit the fact that the manufactures in question are composed wholly or in part of worsted, and that they (the board) assume this fact to be true for the purposes of this ease. Neither the admissions of the importers nor the assumptions of the board bind the collector or the secretary of the treasury, whose decisions, in the absence of any finding either way, will, undera well-settled principle of law, be presumed to bo correct. Rankin v. Hoyt, 4 How. 328. if the collector’s decision that they should pay Hie higher duty can be sustained only on the theory that the goods arc really woolen cloths, they will be presumed to be such, unless the contrary is found as a fact. If an examination of the goods is a necessary prerequisite to classification by the secretary of the treasury, it will be presumed that he, made such examination, unless the contrary is found as a fact.

The provision in section 15 for the taking of additional evidence by a single appraiser, under order of the court, is intended, not to secure additional findings by the board, but to enable the importer or collector to controvert or to sustain the certifications of the board as to the facts involved in the case. The board of general appraisers is by the act constituted the tribunal to decide, in the first instance, “as to the construction of the law and facts respecting the classification of [the imported] merchandise,” (section 15;) and issues not raised by the protest and decided by the board should not be brought into the case, for the first time, after it reaches the appellate tribunal, whose sole function seems to be “to hoar and determine upon the record [i. e., the returns of the board and the additional evidence, if any] the questions of law and fact involved in such decision, respecting the classification of such merchandise, and the rate of duty imposed thereon.” Section 15. Therefore, unless the board decides a particular issue of fact, involved in the case presented to it, it might be that the importer or collector would bo precluded from arguing the same issue in the appellate tribunal. The petitioner may take order for a completed return.