140 F. 648 | U.S. Circuit Court for the District of Northern New York | 1905
This appeal relates to protests 58,943b, 59,-372b, 59,489b, 58,164b, 58,162b, 58,160b, and 59,940b, countervailing duty on wood pulp. Tariff Act July 24, 1897, c. 11, § 1, Schedule M. par. 393, 30 Stat. 187 [U. S. Comp. St. 1901, p. 1671], reads as follows :
*654 “Mechanically ground wood pulp, one-twelfth of one cent per pound,' dry weight; chemical wood pulp, unbleached, one-sixth of one cent per pound, dry weight; bleached, one-fourth of one cent per pound, dry weight; Provided, that if any country or dependency shall impose an export duty on pulp wood exported to the United States, the amount of such export duty shall be added, as an additional duty, to the duties herein imposed upon wood pulp, when imported from such country or dependency.”
The wood pulp in question came from Canada as an importation into the United States. The board held that pulp manufactured in Ontario from wood cut from public lands in Quebec was subject to the countervailing duty; that pulp made' from wood cut from public lands in Quebec and manufactured in Quebec was subject to the countervailing duty; that pulp manufactured from wood cut from private lands and manufactured either in Quebec or Ontario was not subject to the countervailing duty; and that as the pulp could not be segregated, but the proportion could be established by a percentage, the entire importation was not subject to the duty, but only that percentage of pulp which was made from wood taken from public lands.
The importers contend: First, that the government has no right to impose a countervailing duty upon pulp imported from any part of the Dominion of Canada; second, that in any event the countervailing duty cannot be imposed upon pulp manufactured in Ontario from wood cut on public lands in the province of Quebec; third, that in no event is the countervailing duty leviable on pulp imported from Quebec, except as to the extent that it is made from wood cut on public lands and upon which there has been a reduction of the stumpage dues.
The Dominion of Canada is divided into provinces, among which are Ontario and Quebec. By the British North,America Act (chapter 3, 30-31 Viet.), the Dominion of Canada has exclusive power to impose export or import duties. But in sections 91 and 92 of that act we find, in the distribution of powers among"the provinces, that it is provided each provincial legislature has the following power of legislation: (1) Power of direct taxation within the province, in order to the raising of revenue for provincial purposes; (2) management and sale of public lands belonging to the province, and of the timber and wood thereon; (3) shop, saloon, tavern, auctioneer, and other licenses, in order to the raising of the revenue for provincial, local, or municipal purposes. I think each province has the power of taxation by way of license in those matters confided to it. If, in the exercise of this power lawfully granted, whether by the mother country direct or by it through the Dominion, the province in point of fact and in effect imposes an export duty on pulp wood exported to the United States, it is an imposition of that duty by the Dominion of Canada. There is no question that the Dominion of Canada is a dependency of the Kingdom of Great Britain. I do not regard it necessary to recite the various laws, etc., bearing on the subject. In effect, by authority of law, an export duty is imposed. It is not done directly by the Kingdom of Great Britain, or directly by the Dominion of Canada, but it is done under legislation authorized by the Dominion. I cannot agree with the reasoning that arrives at a conclusion that this is not a duty imposed by a dependency of the country we call England, one of the great powers of the world. It is not called an export duty by that Dominion, but
The government has appealed, and contends that, inasmuch as dutiable merchandise was mixed with nondutiable goods of the same kind or same general description, the whole must pay duty, and that the duty should not be assessed on the basis of the percentage .of dutiable pulp wood in the mixture. Had the two, that dutiable and that non-dutiable, been mixed fpr the purpose of evading the payment of duty, or so mixed that it was impossible or exceedingly difficult to ascertain or determine the amount or percentage of dutiable merchandise, a different question would be presented. It is unnecessary to decide that question now. In this case the percentage of dutiable goods is easily determined, and by assessing the duty on that percentage the government is fully protected. The proper amount of duty is capable of being ascertained by satisfactory evidence, and no fraud was attempted.
The decision of the Board of General Appraisers is affirmed.
