United States v. Dean Linseed-Oil Co.

87 F. 453, 31 C.C.A. 51, 1898 U.S. App. LEXIS 1815

• Court: Court of Appeals for the Second Circuit
• Decided: April 7, 1898
• Docket: No. 57
• Status: Published

Opinions

SHIPMAN, Circuit Judge

(after stating the facts as above). The immediate question in this ease is, shall the total drawback, less the 1 per cent, retained by the government, be divided between the oil and the oil cake in proportion to their weight or their value? Inasmuch as .the duty is imposed by weight, the petitioner contends that the drawback shall be divided by weight. The decision depends upon the construction which shall be given to a general statute which has a very large class of articles within its scope, and therefore is an important statute both to the manufacturer and to the government When an imported material, upon which duties have been paid, is manufactured into two separate products, tin* statute is silent as to the proportion in which the drawback shall be divided among the respective products. A court, therefore, is permitted to adopt the construction of the statute or the method of division which shall seem to it the most reasonable and just, and therefore the one most in accordance with the probable intention of the legislation. It will be seen, by a glance at the list of articles heretofore given which are affected by the statute in regard to drawback, that, from many imported articles upon which duties are paid by weight., two or more products of different values are manufactured, and that the principal product, and the one of chief value, is often light in weight, while the secondary or byproduct is bulky, but cheap. This is noticeable in the products from the cas Lor bean, from sugar, and from tin plate. From a bushel of linseed, 2.6 gallons of oil are produced, which used 19.91 pounds of the bushel, and are worth at least $1.36, while 35.87 pounds appeared in the by-product of cake, which is worth a fraction over 1 cent per pound. If the duty of 20 cents per bushel is divided according to weight, each pound will pay °/14 of a cent, and the cheap and bulky secondary product will receive a drawback far disproportionate to its value. This seems unreasonable, and there is also a lack of equity towards the government, in compelling it to return a drawback by the pound upon an article which sells at $21 by the ton. The purpose of the drawback provision is to make “duty free imports which are manufactured here and then returned” to some foreign country. Campbell v. U. S., 107 17. S. 407, 2 Sup. Ct. 759. The manufacturer from imported seed, who sells his linseed oil in this country, and exports his oil cake, if he receives his drawback on the oil cake by weight, receives an unreasonably large amount of return duty, as between the oil which he sells in this country and the oil cake which he' exports. He keeps in this country the valuable part of bis imported article, he returns the nonvaluable part, and receives about 13/¡¡o of the duty. The same lack of equity would show itself in the case of each by-product throughout the list of manufactured articles which are entitled to be a drawback. The uniform practice of the treasury department, since 1861, has been, where several articles were manufactured from the same imported material, to pay the drawback by distributing the duty paid between the manufactured articles in proportion to their values, whether the original duty was specific or ad valorem. It is true that the drawback on oil cake did not exist between 1870 and 1894, but the general statute existed, and was applicable to a large number of manufactured articles. The importance of adherence to a long-continued and reasonable construction of a statute by the officers of the department whose duty it has been to execute it, when the statute is of an ambiguous character, has been frequently'commented upon by the supreme court ever since the case of Edwards v. Darby, 12 Wheat. 206, in which the court said:

“In the construct ion of a doubtful and ambiguous law, the contemporaneous construction of those who were called upon to act under the law, and were appointed to carry its provisions into effect, is entitled to very great respect.”

The uniform construction of the treasury department seems to us reasonable, and equitable to the importer and the government.

The government makes the point that the petitioner is not entitled to any drawback, because oil cake is not a manufactured article, but is waste. The supreme court, in Campbell v. U. S., supra, which was an action to recover drawback upon linseed-oil cake, proceeded in their opinion upon the undisputed theory that it was a manufactured article; and it has been recognized as such by the treasury department from 1861, whenever it was not withdrawn by legislation from the statute in regard to the drawback. The article is a different thing from the tobacco scraps or tobacco clippings, which in Seeberger v. Castro, 153 U. S. 32, 14 Sup. Ct. 766, were held not to be a manufactured article; not being fit for use in the condition in which they were imported, except for a new manufacture. The petitioner is therefore entitled to the amount found due by the collector, viz. $1,498.46. The judgment of the circuit court; is reversed, and the case is remanded to that court, with instructions to enter a new judgment for the petitioner in accordance with this opinion, and for the costs permitted by the act of March 3, 1887.

(April 20, 1898.)