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 ar[737]*737ranged 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 conies 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 Cong'ress 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 by the executive branch of the government need not be considered here, because the claim in this case is not fraud or mistake, but one based upon the idea of an unsound interpretation of the act of Congress authorizing the regulation. In other words, the claim is that Cong'ress intended to authorize a classification and regulation in respect to samples of straight wool only, while the regulation in question, it is claimed, covers the wool of the degenerate merino, or the wool of sheep so remote in blood as to have only a trace of the merino.
It is quite unnecessary to give attention to the object of legislation of this kind, except to say that the growth of business in this department, as in many others, has required that Congress' should authorize classifications, commissions, and other instrumentalities for simplification in the field of government transactions. If such a defense as the one made here is admissible under the' usual protest, where would the line be drawn ? If it holds good in one case upon the ground that the standard sample is from sheep too remote in blood and race, why is not the efficacy of the regulation altogether lost, and for the reason that if the issue of fact can be raised in one case, it can in all, and the question as to quality and classification would therefore at once be at large again.
Paragraph 349 of the act of Congress in question includes in class 1 merino, mestiza, uietz, or other wools of merino blood, immediate or remote, imported into the United States from Cape of Good Hope and other countries. The evidence is very strong that the importation answered the quality of the sample, and, indeed, it is not contended otherwise ; the contention of the importer being that the sample in question is inferior to samples in classes 2 and 3. The case of the importer upon this ground is very strong', and if the question of the quality, value, and proper classification were an open one here, it might not be difficult to find that the classification and duty based upon the samples operated with inequality in respect to value. But it would seem, as already said, as the issue was not one of fraud or mistake, that relief from the hardships of the authorized government regulation should be sought from the executive department, which under [738]*738expressly delegated authority established the samples .and prescribed the lines upon which the classifications should be made.
Cramer v. Arthur, 102 U. S. 612, 26 L. Ed. 259, would seem to indicate that, when Congress regulates things to be done through the agency of the official instrumentalities of the Treasury Department, devised for the purpose of nearer approximation to the actual state of things, which in practice operate with inequality, the one remedy for inaccuracies is to apply to the President through the Treasury Department to change the regulation. The doctrine of this case was recognized in United States v. Klingenberg, 153 U. S. 93, 14 Sup. Ct. 790, 38 L. Ed. 647.
Aside from the view that the Chinese exclusion cases, like Fong Yue Ting v. United States, 149 U. S. 698, 13 Sup. Ct. 1016, 37 L. Ed. 905, and United States v. Ju Toy, 198 U. S. 253, 25 Sup. Ct. 644, 49 L. Ed. 1040, and others, have a strong analogous bearing upon the question of the conclusiveness of an authorized executive regulation of the kind in question, is the very pertinent illustration of Mr. Justice Gray in the Fong Yue Ting Case, 149 U. S. 714, 715, 13 Sup. Ct. 1022, 37 L. Ed. 905, based upon the authorities which he cites, that:
“Claims to recover back duties illegally exacted on imports may, if Congress so provides, be finally determined by tbe Secretary of tbe Treasury. Cary v. Curtis, 3 How. 236 [11 L. Ed. 576]; Curtis v. Fiedler, 2 Black, 461, 478, 479 [17 L. Ed. 273]; Arnson v. Murphy, 109 U. S. 238, 240 [3 Sup. Ct. 184, 27 L. Ed. 920]. But Congress may, as it did. for long periods, permit them to be tried by suit against tbe collector of customs. Or it may, as by the existing statutes, provide for their determination by a board of general appraisers, and allow ibe decisions of that board to be reviewed by the courts in such particulars only as may be prescribed by law. Act June 10, 1890, c. 407, §§ 14, 15, 25, 26 Stat. 137, 138. 141 [U. S. Comp. St. Rupp. 1909, p. 818]; In re Fasset, 142 U. S. 479, 486, 487 [12 Sup. Ct. 295, 35 L. Ed. 1087]; Passavant v. United States, 148 U. S. 214 [13 Sup. Ct. 572, 37 L. Ed. 426].”
See, also, Buttfield v. Stranahan, 192 U. S. 470, 496, 497, 24 Sup. Ct. 349, 48 L. Ed. 525, which would seem to be strikingly in point as covering the question here.
Thus, as there is no vested right to import superior to the power of Congress to say upon what terms it shall be done, it is quite within the constitutional discretion of Congress to declare upon what terms foreign trade may be had and to determine how the justice of claims for alleged excessive tariff taxation shall be ascertained and disposed of.
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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 ar[737]*737ranged 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 conies 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 Cong'ress 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 by the executive branch of the government need not be considered here, because the claim in this case is not fraud or mistake, but one based upon the idea of an unsound interpretation of the act of Congress authorizing the regulation. In other words, the claim is that Cong'ress intended to authorize a classification and regulation in respect to samples of straight wool only, while the regulation in question, it is claimed, covers the wool of the degenerate merino, or the wool of sheep so remote in blood as to have only a trace of the merino.
It is quite unnecessary to give attention to the object of legislation of this kind, except to say that the growth of business in this department, as in many others, has required that Congress' should authorize classifications, commissions, and other instrumentalities for simplification in the field of government transactions. If such a defense as the one made here is admissible under the' usual protest, where would the line be drawn ? If it holds good in one case upon the ground that the standard sample is from sheep too remote in blood and race, why is not the efficacy of the regulation altogether lost, and for the reason that if the issue of fact can be raised in one case, it can in all, and the question as to quality and classification would therefore at once be at large again.
Paragraph 349 of the act of Congress in question includes in class 1 merino, mestiza, uietz, or other wools of merino blood, immediate or remote, imported into the United States from Cape of Good Hope and other countries. The evidence is very strong that the importation answered the quality of the sample, and, indeed, it is not contended otherwise ; the contention of the importer being that the sample in question is inferior to samples in classes 2 and 3. The case of the importer upon this ground is very strong', and if the question of the quality, value, and proper classification were an open one here, it might not be difficult to find that the classification and duty based upon the samples operated with inequality in respect to value. But it would seem, as already said, as the issue was not one of fraud or mistake, that relief from the hardships of the authorized government regulation should be sought from the executive department, which under [738]*738expressly delegated authority established the samples .and prescribed the lines upon which the classifications should be made.
Cramer v. Arthur, 102 U. S. 612, 26 L. Ed. 259, would seem to indicate that, when Congress regulates things to be done through the agency of the official instrumentalities of the Treasury Department, devised for the purpose of nearer approximation to the actual state of things, which in practice operate with inequality, the one remedy for inaccuracies is to apply to the President through the Treasury Department to change the regulation. The doctrine of this case was recognized in United States v. Klingenberg, 153 U. S. 93, 14 Sup. Ct. 790, 38 L. Ed. 647.
Aside from the view that the Chinese exclusion cases, like Fong Yue Ting v. United States, 149 U. S. 698, 13 Sup. Ct. 1016, 37 L. Ed. 905, and United States v. Ju Toy, 198 U. S. 253, 25 Sup. Ct. 644, 49 L. Ed. 1040, and others, have a strong analogous bearing upon the question of the conclusiveness of an authorized executive regulation of the kind in question, is the very pertinent illustration of Mr. Justice Gray in the Fong Yue Ting Case, 149 U. S. 714, 715, 13 Sup. Ct. 1022, 37 L. Ed. 905, based upon the authorities which he cites, that:
“Claims to recover back duties illegally exacted on imports may, if Congress so provides, be finally determined by tbe Secretary of tbe Treasury. Cary v. Curtis, 3 How. 236 [11 L. Ed. 576]; Curtis v. Fiedler, 2 Black, 461, 478, 479 [17 L. Ed. 273]; Arnson v. Murphy, 109 U. S. 238, 240 [3 Sup. Ct. 184, 27 L. Ed. 920]. But Congress may, as it did. for long periods, permit them to be tried by suit against tbe collector of customs. Or it may, as by the existing statutes, provide for their determination by a board of general appraisers, and allow ibe decisions of that board to be reviewed by the courts in such particulars only as may be prescribed by law. Act June 10, 1890, c. 407, §§ 14, 15, 25, 26 Stat. 137, 138. 141 [U. S. Comp. St. Rupp. 1909, p. 818]; In re Fasset, 142 U. S. 479, 486, 487 [12 Sup. Ct. 295, 35 L. Ed. 1087]; Passavant v. United States, 148 U. S. 214 [13 Sup. Ct. 572, 37 L. Ed. 426].”
See, also, Buttfield v. Stranahan, 192 U. S. 470, 496, 497, 24 Sup. Ct. 349, 48 L. Ed. 525, which would seem to be strikingly in point as covering the question here.
Thus, as there is no vested right to import superior to the power of Congress to say upon what terms it shall be done, it is quite within the constitutional discretion of Congress to declare upon what terms foreign trade may be had and to determine how the justice of claims for alleged excessive tariff taxation shall be ascertained and disposed of. Such claims' may be left altogether to the executive department, or in suits against the collector, or to the determination of a Board of Appraisers, subject to review by the courts, or subject to review by the court upon such particulars only as the law may prescribe; and it would seem clear that Congress did not intend to have the regulation in question in respect to standard wool samples subject to review by the courts or by the Board of Appraisers, because paragraph 352 imperatively declares that the standard samples of all wools which are now or may be hereafter deposited in the principal custom houses of the United States under the authority of the Secretary of the Treasury shall be the standards for classification.
Congress having delegated to the executive department of the government full authority to establish standards under the broad terms [739]*739of the statute expressive of merino wool, immediate or remote, coupled with an express statutory declaration that such standards shall be the standards for classification, the question whether a regulation standard operates unjustly, oppressively, or disproportionately with reference to other classifications and values, and whether relief should be granted, are questions addressing themselves to that branch of the government to which the authority was fully delegated, rather than to the courts.
The decision of the Board of Appraisers was that Congress, investing authority in the Secretary of the Treasury in respect to standards, contemplated only straight wools; but, if the regulations and acts of the executive department under this statute are subject to review by the courts, it will be seen that in this case the evidence is very strong that the wool, although of an inferior quality, was merino wool, and it is beyond question, and not disputed, that the wool was from sheep of merino blood, immediately or remote, and therefore the importation would seem to be'within the express terms of paragraph 349 in respect to class 1. ' The words “merino blood, immediate or remote,” convey an unmistakable meaning, and would seem, whether justly or unjustly, to clearly indicate this importation. The sample and importation answered the descriptive words of the statute with respect to merino wool. The evidence is strong as to the marked presence of merino blood, and the inferior quality of the wool was variously accounted for as resulting from the introduction of merino blood, or from the introduction of other blood into the merino, or through the merino blood pure and simple going back on itself under climatic, feed, and other influences.
The decision of the Board of General Appraisers is reversed.'