T. M. Duche & Sons, Inc. v. United States

18 Cust. Ct. 25, 1947 Cust. Ct. LEXIS 14

• Court: United States Customs Court
• Decided: January 15, 1947
• Docket: C. D. 1040
• Status: Published

Opinions

Keeee, Judge:

This case arising at the port of Boston involves the collector’s assessment of duty on certain dried' egg albumen imported from Tientsin, China, and entered on February 17, 1937. The collector assessed duty at 27 cents per pound under paragraph 713 of the Tariff Act of 1930, as amended by the proclamation of the President, T. D. 44997, issued under section 336 of said act. The plaintiff claims that the Presidential proclamation, T. D. 44997, is illegal and void, inasmuch as no investigation of the cost of egg products in the United States, as provided by statute, was made; that there was no industry in the United States in existence engaged in the production of dried egg products during or prior to the time of such investigation; and that the merchandise is properly dutiable at the rate of 18 cents per pound, or at 11 cents per pound under paragraph 713, or at 20 per centum ad valorem under paragraph 1558.

At the trial it was stated by plaintiff’s counsel that the merchandise in question is substantially the same as the dried egg albumen involved in T. M. Duche & Sons et al. v. United States, 13 Cust. Ct. 26, C. D. 863, wherein it was also claimed that the Presidential proclamation, T. D. 44997, was an illegal exercise of delegated power, and illegal and void because the Tariff Commission’s investigation and report to the President, dated June 16, 1931, upon which the proclamation, was based, stowed that there was no domestic dried egg albumen industry nor any “domestic article” for which a finding of cost of production could be made, as required by section 336, Tariff Act of 1930, during the period covered by the investigation. Counsel admitted that it was the intention to appeal the Buche case, supra, but inadvertently it was overlooked, and the present case was presented in order to proceed to a review, in case this court adheres to its original position, after considering additional arguments of counsel. Counsel for the Government admitted that the merchandise and the issues here are substantially the same as in the Buche case, supra. Plaintiff’s motion to incorporate the record in that case as part of the instant case was opposed by the Government on the ground that this court is without authority to review the evidence taken before the Tariff Commission and the report of the Commission based upon such evidence. Inasmuch as the parties to the controversy were the same, the merchandise was the same, and the issue in the Buche case, supra, was identical with the issue presented in the instant case, the court granted the motion of plaintiff admitting the record in question, which includes tbn record in David L. Moss Co., Inc. v. United States, 26 C. C. P. A. (Customs) 381, C. A. D. 45. No other evidence was presented.

It is contended in plaintiff’s brief that the decision of the Supreme Court in United States v. George S. Bush & Co., Inc., 310 U. S. 371, T. D. 50159, has no application to the case at bar for the reason that it involved no question of procedural or jurisdictional defects in the proceedings before the Tariff Commission and the proclamation of the President. Plaintiff contends that in the case at bar the protest is based upon the claim that the entire proceedings of the Commission and the President are invalid; that the Commission has exceeded the power conferred upon it and its investigation and findings, and the President’s proclamation based thereon, are illegal because of failure to satisfy express jurisdictional requirements of the statute. ■

The jurisdictional requirements of section 336 of the Tariff Act of 1930, here involvéd, insofar as institution of the investigation, the public laotice of hearing, the Waring, and report to the President with recommendations were concerned, were complied with. Plaintiff seeks to have the court reverse its decision in the Buche case, supra, because of evidence contained in the Commission’s report to the President. We held in that case that the testimony taken before the Tariff Commission and ithe Commission’s report should not have been received in evidence. Although we admitted the record in the Buche case in the instant case, such admission was subject to our holding as to the admissibility of those documents, as set forth in the decision, which were part of the record. Therefore, we have before us no evidence of the lack of either a domestic industry or a domestic article which might.be used as a basis for the comparison contemplated by section 336, sufra.

We are of the opinion that this court is not empowered under the statute to examine the report of the Tariff Commission and the evidence before it in order to determine whether or not the findings of the Commission were based upon substantial evidence. The well-settled principle of law which may be appropriately applied here limits judicial inquiry to an examination of the proceedings of the Tariff Commission to ascertain whether the jurisdictional requirements of the statute, section 336 of the Tariff Act of 1930, have been complied with. To go further, however, and explore the reasons which actuate the President in the exercise of his judgment in making his proclamation or to weigh the evidence before the Tariff Commission would transcend the province of the courts in cases of this nature.

In our opinion, whether or not we may judicially inquire into the proceedings of the Tariff Commission, weigh the evidence presented before that body to determine whether it would substantiate the report made to the President, or question the reasons underlying the Presidential proclamation, are questions fully covered by the Supreme Court in the Bush case, supra. In that case it was claimed that the Tariff Commission erred in its method of converting the Japanese yen currency into United States dollars as a basis for figuring the estimated duty. The Supreme Court there stated that—

* * * The President’s method of solving the problem was open to scrutiny neither by the Court of Customs and Patent Appeals nor by us. 'Whatever may be the scope of appellate jurisdiction conferred by § 501 of the Tariff Act of 1930, it certainly does not permit judicial examination of the judgment of the President that the rates of duty recommended by the Commission are necessary to equalize the differences in the domestic and foreign costs of production.

and furthermore—

* * * It has long been held that where Congress has authorized a public officer to take some specified legislative action when in his judgment that action is necessary or appropriate to carry out the policy of Congress, the judgment of the officer as to the existence of the facts calling for that action is not subject to review. [Italics not quoted.] Martin v. Mott, 12 Wheat. 19; Monongahela Bridge Co. v. United States, 216 U. S. 177; Dakota Central Telephone Co. v. South Dakota, 250 U. S. 163; United Stales v. Chemical Foundation, Inc., 272 U. S. 1. As stated by Mr. Justice Story in Martin v. Mott, supra, pp. 31-32: “ Whenever a statute gives a discretionary power to any person, to be exercised by him upon his own opinion of certain facts, it is a sound rule of construction, that the statute constitutes him the sole and exclusive judge of the existence of those facts.”

In the Duche case, supra, it was contended that the Presidential proclamation, in reference to dried egg albumen, was null and void because there was no industry in the United States producing that product during the period set for the investigation by the Tariff Commission. It was also urged that no cost of production of the domestic product could be determined, and consequently the difference in cost of production between the domestic merchandise and that of the chief competing country could not be ascertained. We there held that if Congress had desired that the court should review such evidence for the purpose of determining whether the findings of the Tariff Commission were supported by the facts, it would have made provision therefor, and the protests were overruled. The decision-in that case was unanimous and, as stated above, no appeal was taken. We are of the opinion that the decision in the Duche case, supra, is to be followed unless a good reason is shown why we should reverse that case. No such reason, nor change in the law or the facts, is here presented.

The cases relied upon by the plaintiff, wherein observations and judicial dictum in related cases such as Hampton, Jr., & Co. v. United States, 14 Ct. Cust. Appls. 350, T. D. 42030, affirmed in 276 U. S. 394, are stressed, have been repudiated in principle by the decision of the Supreme Court in the Bush case, supra. In the case of David L. Moss, supra, also relied on by the plaintiff, the majority of the court concurred in the view that while it was not the function of the court to weigh the evidence and determine the facts, it may go behind the report of the Tariff Commission to determine whether the finding of the President and the Commission that dried egg albumen was a domestic article is supported by any substantial evidence. The Moss case, however, was not appealed to the Supreme Court, presumably because our appellate court came to the conclusion that there was sufficient evidence to support the finding of the President. That case, however, was decided prior to the Bush decision, and in view of the Supreme Court’s holding in that case, it would seem that our appellate court would not have given approval to the examination of the evi-. dence in the Moss case, supra, if it had had the benefit of the Supreme Court’s expression of opinion in the Bush decision.

It is contended on behalf of the plaintiff herein that as this case arose by way of protest under authority of section 514 of the Tariff Act of 1930, this court possesses jurisdiction to judicially examine the facts upon which Presidential action under section 336, supra, is based to determine whether the requirements of the statute are met. The basis of this contention is the language of said section 514 which provides expressly that protests may be filed against all decisions of collectors as to the rate and amount of duties chargeable “including the legality of all orders and findings entering into the same.” This language was not considered in the Bush case, supra, in which the jurisdiction of the court was derived from section 501 of the same act, relating to reappraisement cases. The scope of appellate jurisdiction conferred by the latter section is expressed therein in the broad language granting a right of appeal to either party on a question or questions of law only. Plaintiff contends that had the Bush case,. supra, involved a suit under section 514 rather than section 501, the Supreme Court might have arrived at a different conclusion. We find no merit in this contention in view of the broad language of section 501, granting appeal on questions of law. Moreover, that question was passed upon in the Duche case, supra, and decided adversely to plaintiff’s contention.

While the statute, section 336, refers to the cost of production “of any domestic article,” plaintiff argues that there is a necessity for the-existence of a domestic industry notwithstanding the fact that section 336 (h) (1) states that “the term 'domestic article’ means an article-wholly or in part the growth or product of the United States * * Inasmuch as Congress has expressly defined “domestic article” in. precise terms, it is not apparent why the court should seek to enlarge-the section by insisting that there must be a domestic industry as-urged by the plaintiff. The fact that at the time of the investigation, in question there may have been a great disparity in the degree of production of the foreign and domestic articles, respectively, is a matter of no concern to the court.

For the reasons stated, and following the Supreme Court in the Bush case, supra, we are of the opinion that the Duche case, supra, should stand as the law. Judgment will therefore be entered in favor of the Government.