Seattle Brewing & Malting Co. v. United States

U.S. Circuit Court for the District of Western Washington

Seattle Brewing & Malting Co. v. United States

176 F. 125, 1910 U.S. App. LEXIS 5248

CourtU.S. Circuit Court for the District of Western Washington

DecidedJanuary 26, 1910

DocketNo. 1,469 (1,967)

StatusPublished

This text of 176 F. 125 (Seattle Brewing & Malting Co. v. United States) is published on Counsel Stack Legal Research, covering U.S. Circuit Court for the District of Western Washington primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Seattle Brewing & Malting Co. v. United States, 176 F. 125, 1910 U.S. App. LEXIS 5248 (circtwdwa 1910).

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Opinion

HANFORD, District Judge.

There is manifest injustice in the assessment of duty on the importation which is the subject of litigation in this case, so much so that the .decision of the Board of General Appraisers, overruling the importers’ protest, expresses regret. The merchandise on which the duty was assessed consists of 2,328 bags of broken rice, dutiable tinder paragraph 232 of the Dingley tariff law of 1897 (30 Stat. 165)) at the rate of two cents per pound on the portion thereof which will not pass through a sieve known commercially as a No. 12 wire sieve, and at the rate of one-fourtli of a cent per pound on the portion which will pass through such a sieve. At the time of entry the collector tested samples of the rice, using a No. 12 sieve made of No. 27 wire, 12 meshes to the inch, and by that test it was found that 7'6 per cent, passed freely, and that with persistent shaking and rubbing 87’ per cent, passed through the sieve. The collector then erroneously exacted duty on the entire importation at the higher rate. The importer protested, and appealed to the Board of General Appraisers. The collector transmitted a report of the test lie had made and a sample of the rice which was tested at New York, using a No. 12 sieve made of No. 24 wire, which is the sieve prescribed by an order promulgated by the Secretary oí the Treasury for use in appraisements under the paragraph of the tariff law referred to. On that test 33% per cent, of the sample passed through the sieve. By its decision the Board rejected the test made by the collector on the ground that the sieve used was not the sieve which the Secretary of the Treasury prescribed, and rejected the test made in New York on the ground that the sample was insufficient in quantity for an adequate test, and overruled the protest on the ground that the appellant had failed to prove affirmatively that the rate of two cents per pound was not applicable to the entire importation. and from that decision the importer has appealed to this court.

The evidence submitted for consideration of this court includes samples of the rice selected by a revenue officer of the United States, and the uncontradicted evidence proves that on a fair test of the samples, using a regulation sieve made of No. 24 wire, 47'11/3t per cent, of the rice passed through it. The United States Attorney contends that age [128]*128and repeated handling has affected the samples, so that they do not indicate with precision fhe different grades of the rice at the time of entry; but he has not suggested better means for a fair adjustment. No fault of the importer can be assigned as the cause of any loss to the government by reason of an infinitesimal increase in percentage of fine particles caused by abrasion in handling the samples.

The appellant has attempted to prove by the testimony of hardware merchants that the sieve known commercially as a No. 12 wire sieve is made of No. 27 wire. The evidence, however, proves that No. 12 sieves have 12 meshes to the inch and are made of wire gauged as Nos. 24, 25, 26, 27, and 32. In the case of Wakem v. United States (C. C.) 147 Fed. 874, an attempt was made to obtain a decision recognizing a wire sieve made of No. 32 wire as the lawful sieve prescribed in the tariff law. It is my conclusion that, in order to maintain uniformity in the appraisement of broken rice in the different customs districts, it was necessary to specify the size of wire of which sieves should be made, and that the Secretary of the Treasury was authorized to make the order designating No. 24 wire.

It is conceded that the importation-consisted of broken rice, a portion of which will pass through the regulation sieve. Therefore the collector of customs assessed the duty by. an improper method, and the importers’ protest is valid. United States v. Ranlett, 172 U. S. 133, 19 Sup. Ct. 114, 43 L. Ed. 393; United States v. Bond (C. C.) 161 Fed. 165. The Collector of Customs had the opportunity to determine with accuracy the percentage of the rice dutiable at the different rates, and it is the opinion of the court that the government must be concluded by the tests made of the samples produced, and that duty should be collected at the rate of one-fourth of a cent per pound on 4711/si per cent, of the importation, and at the rate of two cents per pound on the remainder.

The court directs that a judgment be entered in proper form as indicated by this opinion.

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HANFORD, District Judge.

There is manifest injustice in the assessment of duty on the importation which is the subject of litigation in this case, so much so that the .decision of the Board of General Appraisers, overruling the importers’ protest, expresses regret. The merchandise on which the duty was assessed consists of 2,328 bags of broken rice, dutiable tinder paragraph 232 of the Dingley tariff law of 1897 (30 Stat. 165)) at the rate of two cents per pound on the portion thereof which will not pass through a sieve known commercially as a No. 12 wire sieve, and at the rate of one-fourtli of a cent per pound on the portion which will pass through such a sieve. At the time of entry the collector tested samples of the rice, using a No. 12 sieve made of No. 27 wire, 12 meshes to the inch, and by that test it was found that 7'6 per cent, passed freely, and that with persistent shaking and rubbing 87’ per cent, passed through the sieve. The collector then erroneously exacted duty on the entire importation at the higher rate. The importer protested, and appealed to the Board of General Appraisers. The collector transmitted a report of the test lie had made and a sample of the rice which was tested at New York, using a No. 12 sieve made of No. 24 wire, which is the sieve prescribed by an order promulgated by the Secretary oí the Treasury for use in appraisements under the paragraph of the tariff law referred to. On that test 33% per cent, of the sample passed through the sieve. By its decision the Board rejected the test made by the collector on the ground that the sieve used was not the sieve which the Secretary of the Treasury prescribed, and rejected the test made in New York on the ground that the sample was insufficient in quantity for an adequate test, and overruled the protest on the ground that the appellant had failed to prove affirmatively that the rate of two cents per pound was not applicable to the entire importation. and from that decision the importer has appealed to this court.

The evidence submitted for consideration of this court includes samples of the rice selected by a revenue officer of the United States, and the uncontradicted evidence proves that on a fair test of the samples, using a regulation sieve made of No. 24 wire, 47'11/3t per cent, of the rice passed through it. The United States Attorney contends that age [128]*128and repeated handling has affected the samples, so that they do not indicate with precision fhe different grades of the rice at the time of entry; but he has not suggested better means for a fair adjustment. No fault of the importer can be assigned as the cause of any loss to the government by reason of an infinitesimal increase in percentage of fine particles caused by abrasion in handling the samples.

The appellant has attempted to prove by the testimony of hardware merchants that the sieve known commercially as a No. 12 wire sieve is made of No. 27 wire. The evidence, however, proves that No. 12 sieves have 12 meshes to the inch and are made of wire gauged as Nos. 24, 25, 26, 27, and 32. In the case of Wakem v. United States (C. C.) 147 Fed. 874, an attempt was made to obtain a decision recognizing a wire sieve made of No. 32 wire as the lawful sieve prescribed in the tariff law. It is my conclusion that, in order to maintain uniformity in the appraisement of broken rice in the different customs districts, it was necessary to specify the size of wire of which sieves should be made, and that the Secretary of the Treasury was authorized to make the order designating No. 24 wire.

It is conceded that the importation-consisted of broken rice, a portion of which will pass through the regulation sieve. Therefore the collector of customs assessed the duty by. an improper method, and the importers’ protest is valid. United States v. Ranlett, 172 U. S. 133, 19 Sup. Ct. 114, 43 L. Ed. 393; United States v. Bond (C. C.) 161 Fed. 165. The Collector of Customs had the opportunity to determine with accuracy the percentage of the rice dutiable at the different rates, and it is the opinion of the court that the government must be concluded by the tests made of the samples produced, and that duty should be collected at the rate of one-fourth of a cent per pound on 4711/si per cent, of the importation, and at the rate of two cents per pound on the remainder.

The court directs that a judgment be entered in proper form as indicated by this opinion.

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176 F. 125, 1910 U.S. App. LEXIS 5248, Counsel Stack Legal Research, https://law.counselstack.com/opinion/seattle-brewing-malting-co-v-united-states-circtwdwa-1910.

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