Vandiver v. United States

156 F. 961, 1907 U.S. App. LEXIS 4759

• Court: Court of Appeals for the Third Circuit
• Decided: November 11, 1907
• Docket: No. 3 (1,856)
• Status: Published

Opinion

BUFFINGTON, Circuit Judge.

The appellant, John L. Vandiver, ■ imported certain sulphur and contended it was dutiable under paragraph 674 of the tariff act (Act July 24, 1897, c. 11, § 2, Free List, 30 Stat. 201 [U. S. Comp. St. 1901, p. 1688]), viz.:

“Sulphur, lac or precipitated, and sulphur of brimstone, crude, in bulk, sul-phur ore as pyrites, or sulphnret of iron in its natural state, containing in excess of twenty-five per centum of sulphur, and sulphur not otherwise provid ed for.”

The collector classified it as refined sulphur, under paragraph 84, viz.:

"Sulphur, refined or sublimed, or flowers of, eight dollars per ton.”

On appeal by Vandiver, the Board of General Appraisers, and thereafter the Circuit Court, approved the collector’s action. The case turns on the question whether this sulphur was refined. Being invoiced by the shipper as “refined roll sulphur,” it would seem the burden was on the importer to show the importation was not refined, as thus invoiced. The General Appraisers, after referring to the large mass of testimony, state that:

“A <•;' rpful consideration of it strengthens the opinion that the sulphur is not crudo, but is in fact refined.”

We are of opinion the court below committed no error in adopting this view. The presumption was that the collector’s classification was correct. Pickhardt v. United States, 67 Fed. 111, 14 C. C. A. 341. And the collector’s classification was supported by the findings of the Board of Appraisers. These findings, unless unsupported, against the weight of the evidence, or where additional evidence is before the court, will not be disturbed on appeal. Apgar v. United States, 78 Fed. 332, 24 C. C. A. 113; In re Van Blankensteyn, 56 Fed. 475, 5 C. C. A. 579.

The evidence warranted the Board’s finding, and the appeal is therefore dismissed.