David L. Moss Co. v. United States

HATFIELD, Associate Judge

(specially concurring).

Section 336 of the Tariff Act of 1930, 19 U.S.C.A. § 1336 , providing for investigations and findings by the Tariff Commission and findings and proclamations by the President, was enacted for the purpose of carrying out a legislative policy relating to an exclusively legislative function — that of, increasing or decreasing within prescribed limits the rates of duty to be assessed upon articles thereafter imported into the United States. Hearings provided for in that section form a part only of an investigation, as the statute does not provide, either expressly or by necessary implication, that all of the evidence presented for the consideration óf the Commission and the President shall be submitted at the hearings. Evidence of a confidential nature shall be so considered. See section 335 of that act, 19 U.S.C.A. § 1335 . Such evidence may be much or little, and the findings of the Commission and the President may be based upon it. The Congress certainly did not intend that such evidence should be open to inspection in a judicial proceeding.

The hearings provided for in the statute under consideration are of the same character as those provided for in section 315 (c) of the Tariff Act of 1922, 42 Stat. 941 . Accordingly, they may be either private or public, and clearly are not judicial in character. Norwegian Nitrogen Co. v. United States, 288 U.S. 294, 317 , 53 S.Ct. 350 , 77 L.Ed. 796 .

I am unable to find anything in the provisions of section 336, supra, to indicate that the Congress intended to provide for judicial review of the findings of either the Tariff Commission or the President, and I think it is apparent from the evident purpose of the enacted legislation that the Congress did not so intend.

The views of the majority of my associates, as I understand them, are that, although the hearings are not judicial in character because they are a part only of the investigation, the investigation is a judicial proceeding because, in determining whether he shall approve or disapprove the rates of duty specified in the report of the Commission, the President -is confined to a consideration of the evidence secured by the Commission in the course of its investigation. If legal rights were affected by the findings of the President, I would have no' difficulty in accepting those views.

The following cases are representative of one line of decisions relied upon by the majority: Chicago Junction Case, 264 U. S. 258 , 44 S.Ct. 317 , 68 L.Ed. 667 ; United States v. Abilene & Southern Railway Co., 265 U.S. 274 , 44 S.Ct. 565 , 68 L.Ed. 1016 ; Crowell v. Benson, 285 U.S. 22 , 52 S.Ct. 285 , 76 L.Ed. 598 ; St. Joseph Stock Yards Co. v. United States, 298 U.S. 38 , 56 S.Ct. 720 , 80 L.Ed. 1033 ; Shields v. Utah Idaho Central R. R. Co., 305 U.S. 177 , 59 S.Ct. 160 , 83 L.Ed. —.

In the St. Joseph Stock Yards Co. case, supra, it was held that an order of the Secretary of Agriculture fixing stockyard rates was subject to judicial review upon the law and the facts, because it affected legal rights of which the company could not be deprived without due process of law.

The case of Crowell v. Benson, supra, involved the Longshoremen’s and Harbor Workers’ Compensation Act ( 44 Stat. 1424 ; U.S.C., title 33, §§ 901-950, 33 U.S. C.A. §§ 901-950). The act reserved to the admiralty courts full power to pass upon questions of law, and it was held that the statute satisfied the due process clause of the Fifth Amendment, U.S.C.A.Const.

In the case of Shields v. Utah Idaho Central R. R. Co. case, supra, the Supreme Court held that under the Railway Labor Act ( 48 Stat. 1185 ; 45 U.S.C. § 151 , 45 U. S.C.A. § 151) the “hearing” before the Interstate Commerce Commission provided for in the act had “obvious reference ‘to the tradition of judicial proceedings in which evidence is received and weighed by the trier of the facts.’ The ‘hearing’ is ‘the hearing of evidence and argument.’ Morgan v. United States, 298 U.S. 468, 480 , 56 S.Ct. 906, 911 , 80 L.Ed. 1288 . And the manifest purpose in requiring a hearing is to comply with the requirements of due process upon which the parties affected hy the determination of an administrative tody are entitled to insist. [Italics supplied.] Interstate Commerce Commission, v. Louisville & Nashville R. R. Co., 227 U.S. 88, 91 , 33 S.Ct. 185, 186 , 57 L.Ed. 431 .” Similar views were expressed by the Supreme Court in the Chicago Junction Case, supra, and in the case of United *403 States v. Abilene & Southern Railway Co., supra.

It may be said, therefore, that judicial review may be had of all orders of administrative officials where the statute so provides. If the statute does not so provide, and if legal rights are affected, the due process clause of the Fifth Amendment is authority for such review.

No legal rights were affected either by the findings of the Commission or by the Presidential proclamation as “No one has a legal right to the maintenance of an existing rate or duty.” Norwegian Nitrogen Co. v. United States, supra [ 288 U.S. 294 , 53 S.Ct. 359 ]. Although the decision in that case involved the provisions of section 315 of the Tariff Act of 1922 which did not limit the President to a consideration of the evidence obtained by the Commission, the statement by the court in that case that “Neither the action of Congress in fixing a new tariff nor that of the President in exercising his delegated power is subject to impeachment if the prescribed forms of legislation have been regularly observed” (as they admittedly were in the instant case), is, in my opinion, clearly applicable to the issues here involved. [Italics not quoted.]

The following cases are representative of another line of decisions relied upon by a majority of the court: United States v. Passavant, 169 U.S. 16 , 18 S.Ct. 219 , 42 L.Ed. 644 ; Maddaus v. United States, 3 Ct.Cust.App. 330, T.D. 32623.

Prior to the enactment of the Tariff Act of' 1922, decisions of the Board of General Appraisers (now United States Customs Court) as to the foreign-market value of imported merchandise were by legislation made final and conclusive. However, the Supreme Court held in many decisions, of which the decision in the Passavant case, supra, is typical, that appraisement decisions were open to collateral attack where the appraising officials had proceeded upon a wrong principle contrary to law or had transcended the powers conferred by statute. The decisions reviewed by the Supreme Court in those cases were obviously not legislative, but judicial, or, at least, quasi judicial in character.

The claimed authority for the protest in the instant case is section 514 of the Tariff Act of 1930/ 19 U.S.C.A. § 1514 . Under that section protests may be filed against “all decisions of the collector, including the legality of all orders and findings entering into the same, as to the rate and amount of duties chargeable, and as to all exactions of whatever character (within the jurisdiction of the Secretary of the Treasury),” etc.

As any interested party has a legal right to a hearing before the Tariff Commission and to constructive notice, at least, of the time and purpose of such hearing, we held in -several decisions, some of which are cited in Judge Parker’s opinion, that, a proper appeal having been taken, the quoted provisions of section 514, supra, and similar provisions in section 514 of the Tariff Act of 1922 were the source of this court’s power to require the Tariff Commission and the President to “conform their action to the mode prescribed by Congress.” See Monongahela Bridge v. United States, 216 U.S. 177, 195 , 30 S.Ct. 356, 361 , 54 L.Ed. 435 . If, however, in making findings of fact and issuing proclamations under the provisions of section 336, supra, the President acts as a mere agent of the Congress in effectuating a legislative policy relating to an exclusively legislative function, as held in the case of Hampton & Co. v. United States, 276 U.S. 394 , 48 S.Ct. 348 , 72 L.Ed. 624 , the Congress certainly did not have in mind in enacting the provisions of section 514, supra, that a protest against the decision of the collector should confer jurisdiction upon the Customs Court and, on appeal, this court to review the evidence before the President for the purpose of determining whether there was any substantial evidence to warrant the raising or lowering of rates of duty. United States v. Klingenberg, 153 U.S. 93 , 14 S.Ct. 790 , 38 L.Ed. 647 ; Monongahela Bridge v. United States, supra.

Considering the provisions of section 336, supra, and the purpose of their enactment, I am of opinion that the findings and the proclamations of the President are legislative in character, and, the prescribed forms of legislation having been regularly observed as they were in the instant case, are not subject to impeachment in any judicial proceeding, and that the proclaimed rate of duty here involved is “as conclusive as though fixed by the statute itself.” United States v. Klingenberg, supra [ 153 U.S. 93 , 14 S.Ct. 792 ].

For the reasons stated, I think the judgment should be affirmed and, there *404 fore, concur in the conclusion reached by-Judges Parker and Lenroot.