United States v. Lueder

154 F. 1 | 2d Cir. | 1907

PER CURIAM.

The merchandise in question consists of “sugar drainings.” It is the molasses that oozes from bags and other packages of sugar while in transit on shipboard, and which is gathered up and subsequently used for manufacturing alcohol, etc. The relevant paragraph is:

“209. Sugars * ⅜ * testing by the polariscope not above seventy-five degrees, ninety-five one-hundreths of one cent per pound and for every additional degree shown by the i>olariscopic test thirty-five one-thousandths of one cent per pound additional and fractions ol‘a degree in proportion; * ⅜ ⅝ molasses testing above forty degrees and not above fifty-six degrees three cents per gallon : testing fifty-six degrees and above, six cents per gallon; sugar drainings and sugar sweepings shall be subject to duty as molasses or sugar, as the case may be, according to polariscopic test. ⅜ * ⅞ ”

The present controversy is* whether the importation was shown by polariscopic test to be “not above fifty-six degrees” or to be “fifty-six degrees and above.” The board and the Circuit Court both found that it was below 56. Their opinions indicate that this conclusion was in part induced by a consideration of tests made by polariscopists other than those employed by the government to make the official tests. Suggestion is made that fermentation had set in when the first tests were made, but there is nothing in the record to show when it set in or when it ceased. And, whatever be the fact as to this, the condition of drainings for assessment purposes is the condition in which they were when imported, and the official test was nearer in time to the date of importation than was any subsequent test. There is no controversy as to the fundamental facts — the observed facts as distinguished from inferred facts — and they are set forth with great fullness in the dissenting opinion of General Appraiser De Vries, which also contains all relevant quotations from the treasury regulations governing the method of conducting polariscopic tests. This opinion, although written two years before, is fully in accord with the decision of this court in United States v. Bartram Bros., 131 Fed. 833, 65 C. C. A. 557, and it seems unnecessary to do more than express our concurrence with the dissentient General Appraiser in disposing of this appeal.

As was pointed out in the Bartram Case, Congress left it to the Secretary of the Treasury to provide by appropriate regulations for the taking of tests by polariscope. The evidence in that case showed that the test was of so delicate a character that there were such sources of error, such differences of result when the same sample was tested or the same readings taken by different individuals; that it was essential to have some well-settled method, which, while not always, absolutely accurate, should be at least uniform in its application. Briefly stated the method prescribed is to send to the laboratory -two samples of each mark in two separate sample boxes, and at least two tests are required to be made of each sample. The respective samples are divided into two equal portions, which shall be tested by different experts, and the results averaged according, to a carefully prescribed method. The tests of the two samples of a- mark first sent to the laboratory, when they correspond within five-tenths of a degree, are accepted and their average taken as the true test of the sugar. Provision is made for a retest upon the importer’s application.

An examination of the record shows that the dissenting General Appraiser is entirely correct in the statement that the regulations were substantially followed in determining the polariscopic test of the drainings in question and that “the one deviation, if any, was the fact that the second can of samples was sent to the laboratory after the examination of the first. Both [sets of samples were taken, prepared, and put in the two sample cans and both] examinations were made during the same day, and the samples were intermixed before being placed in the can, and two examinations of each sample were made in the laboratory, and the average duly made as prescribed by the regulations.” The first can was divided into two portions, each part tested by a different expert, with the result that one part showed 55.9° and the other 56°, giving 55.95°-as the accepted test of that sample. The second can, similarly tested, showed 56.1° for each portion and, of course, 56.1° for the accepted test of that sample. The average of the tests of the contents of the two sample boxes, thus taken at the same time and examined on the same day (such tests corresponding within five-tenths of a degree, article 1368), .was properly taken as the “true test” of the molasses. And a subsequent retest made at the request of the importer showed a higher percentage. The average of the four readings on test of the two sample boxes first sent to the laboratory was 56.025. The importer contends that this should not be considered as “56° and above” because the fraction is so small,* on the theory de minimis non curat lex. We do not assent to this proposition, the statute itself refers to fractions of a degree, and the Treasury regulations (article 1364) provide that averages shall be carried to 5 places of decimals when called for by the figures.

The decision of the Circuit Court is reversed.