96 F. 90 | U.S. Circuit Court for the District of Washington | 1899
This is an appeal taken pursuant to section 15 of the act of congress approved June 10,1890 (1 Supp. Rev. St. U. S. [2d. Ed.] p. 751), under which section the appellant is entitled to have a review of the questions of law and fact Involved in the decision of the hoard of general appraisers with respect to certain duties upon imported ores containing lead, which were paid by the appellant under protest. The appellant alleges that by reason of the improper method of assay for ascertaining the weight of lead contained in the ores the collector of customs for the Puget Sound district required payment of excess duties on the lead contained in said ores, amounting to $1,074.15. The board of general appraisers has made a return to this court, showing that several protests respecting the alleged excess of duties were duly transmitted to the board"; that through a clerical error the notice of the date of hearing was misdirected, and presumably was not received by the appellant, and it failed to appear at the time appointed for consideration by the board of said protests; that no evidence was introduced, and for lack of “evidence to controvert the correctness of the official assays” the board determined that such assays were correctly made, and affirmed the decision of the collector of customs in accordance therewith. It is an admitted fact in the case that the assays upon which the duties were based were made according to a chemical process known as the “wet process,” and the appellant contends that the 181st paragraph of Schedule 0 of the tariff law known as the “Dingley Law” (Act July 24, 1897), under which the duties were collected, requires the government officers to determine the quantity óf lead contained in imported ores by a “proper assay” of samples taken according to commercial
“In reply, you are informed that, whatever may be the method of assay actually used for ‘commercial purposes,’ the ‘wet assay’ alone is adopted for purposes of assessment of duties on the lead contained in imported ores, inasmuch as such assay insures the maximum of accuracy.”
And he refers to a letter written by himself under date of May 21, 1898, to the collector of customs at El Paso, Tex., in which he said:
“The director of the mint, to whom the matter has been referred, reports that the method proposed by Mr. Johnson is unsatisfactory, as the results obtained are, in the case of refractory ores, uniformly too low, and that the wet assay adopted by the department insures the maximum of accuracy attainable' in a limited time with uniformity of practice.”
In a letter to the director of the mint, dated October 9, 1897, the acting secretary of the treasury set forth certain letters showing the method of appraisement in practice at the port of Hew York, from
“Provided, that silver ore and all other ores containing lead shall pay a duty of ilu'ce-foiidhs of one cent per pound on the lead contained therein, according to sample of assay at the port of entry. The method of sampling and assaying to tie that usually adopted for commercial purposes by public sampling works in the United States.”
Paragraph 6 of the sundry civil appropriation act, approved March 2, 3 895, provides as follows:
“The secretary of the treasury shall pi escribe regulations for the sampling and assaying of lead ores imported into the United States, and such regulations si tall provide that the method of sampling and assaying such ores shall be the same as chat usually adopted for commercial purposes by public sampling vs orles in the United States. ⅞ * ⅛” 2 Supp. Rev. St. U. S. p. 430.
That portion of the Wilson law above quoted was repealed by the Dingley law, hut the act of March 2,1895, has not been repealed, unless by necessary implication, because repugnant to the provisions of the Dingley law. I am unable to find that it is inconsistent with the Dingley lawr in any particular; on the contrary, paragraph 181, above referred to, indicates quite plainly that congress intended to adhere to the policy of resorting to the commercial method for ascertaining the quantity of lead in imported ores. That law7 provides that:
“On Hie arrival of the ores ⅜ ;;; * they shall be sampled according to commercial methods under the supervision of government officers, * * * who shall submit the samples thus obtained to a government assayer, s * * who shall make a proper assay of the sample and report the result to the proper government officers, and the import entries shall be liquidated thereon. * ⅞ *”
It would require a very strained construction of the law to find that congress, after having, in 1894, and again in 1895, enacted statutes requiring the sampling and assaying of ores for the purpose of collecting duties thereon to be according to commercial methods, and without having expressly repealed the law of 1895, could have intended in this law of 3897 to continue the same policy as regards the methods of sampling, and yet depart from that method for the purpose of assaying. Such a construction for the purpose of making the burden upon commerce heavier would he contrary to the rule sanctioned by the supreme court of the United States in the case of