Opposition Brief — United States v. Whitridge

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Supreme Court of the Anited States,

OCTOBER TERM, 1904.

Tue Unirep States,

Petitioner,

vs.

Morris WHITRIDGE and another.

BRIEF OPPOSING PETITION FOR WRIT

OF CERTIORARI.

It is submitted and confidently believed that the prayer for a

writ in this case should be denied.

The petititioner moves with exceptional length of argument,

with many supporting tables of figures, with rare strenuousness.

The reasons for this are that this issue has been kept in litigation

by the Treasury Department for seven years or more, and during

that time has been, as shown in Appendix A (hereto annexed),

enlightened with fuller argument and more conclusive judicial

decisions than perhaps any other issue, not excepting the famous

contention as to hat trimmings, which ever arose under the duty

laws. Every one of these decisions, including one from this Court,

has sustained the contention now sought to be again reviewed.

—

There have been twelve decisions on the issue

—four by the board of general appraisers (written

by Judge Somerville and most carefully considered),

four by the several circuit courts, three by the cir.

cuit courts of appeal, and as stated, one by this Court.

Coilectively, these decisions, all of which are printed as Ap-

pendix A of this brief for ready reference, and in the order of their

rendition, have repeatedly considered and decided every aspect of

the controversy, and their doctrine is supported at every point by

sound sense and ample precedent.

After the fifth of these decisions,—that of the circuit court of

appeals in the first circuit in Beebe’s case, a petition for certiorari

was brought here, was duly supported and opposed in printed briefs,

was carefully considered, doubtless, by this Court, and was denied.

The present petition will be found, on examination, substantially a

renewal of the former. Asin all similar instances, the petitioner

seeks to avoid the adverse force of the earlier denial by alleging

(p. 3, brief) that “ the issues now presented are radically different”

etc. But the facts not only do not bear this out; they prove the

contrary. There are certain differences in the manner of stating

the case, and some alterations in the line of argument. Thus,

the petition in Beebe’s case estimated (see p. 6) $5,000,000 as the sum

at stake. Petrtioner now estimates it (p. 3, Brief) as “over

$1,000,000.” The signers of this brief, in close touch with all the

chief claimants, may offer their view that only a fraction of

$1,000,000 is involved.

Again, the petition in Beebe’s case said (p. 6): “ Under existing

conditions the question does not arise, because later Treasury pro-

clamations give the current and Jegal value of the rupee, founded

upon the metal value, whichis now referable in India to the gold

standard.” Whereas the present petition urges (p.2) that the case

* requires construction of the law now in force,” etc. Both asser-

tions are true; the law is still in force, but the issue is uacurrent

and not at all likely to recur, the free coinage of silver having long

been abandoned by the great trading nations.

But Beebe's case and this one are identical in every important

fact, and differ at only one point in their records. Both involve

SP EAT EA ——

—— et POO PSA TIE Ot

imports from India, made after 1894, invoiced in silver rupees, duti-

able according to value, duly appraised in the currency of India as

the law requires, such currency reduced to United States equivalent

at the exchange value of the rupee as certified by our consul at the

date of shipment, and duty reckoned, under orders of the Secretary

of the Treasury, on this value instead of the lesser pure metal value

duly ascertained at the Mint and proclaimed by the Secretary as

required by law. Against that feature of the assessment protest

was directed in both cases, and manifestly, the law of each was the

law of the other.

The sole difference in the records is that in Beebe’s case, the

Government joined in a stipulation of the amply evident fact, that

the Secretary’s order was based on the exchange value, while in the

present case the stipulation was refused, the Government seemingly

acting on the theory that, as the approval of the courts could not

be secured on the full facts as submitted, a better result might be

had by a partial suppression of the facts. But as will be shown,

this fact is almost absurdly manifest, the record and many official

publications bristle with its repetition, and the petitioner in the

present prayer fully and repeatedly concedes—nay, asserts it. The

alleged difference thus proves to be a distinction without a dif-

ference.

II.

Only two questions are vital to this case, viz. 1,

what was the Secretary's action? and, 2, What

action did the law authorize him to take?

There is no room for serious discussion beyond these two.

Despite the petitioner’s contentions as to finality of the Secretary's

reliquidation order, and that its basis or meaning cannot be in-

quired into by boards or courts, he evidently cannot intend or desire

to protect an official in transcending the statute. If unreviewable,

the Secretary's action must be so because within his statutory

power, and to assert that we must not ascertain what it was, is

to deny the right to measure it by that power, and thus is to beg

the question.

NT 3 ac

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On the other hand, when examined and thus measured, we con-

cede that if found within the power conferred by the statute, it

cannot be reversed, nor any further reviewed.

The nature of the official act, and the nature and extent of the

official power—these are the two elements on which this case must

turn, and on which it has turned in the courts below.

III.

The Secretary ordered reliquidation of the duties

here involved, on the basis of the rupee’s exchange

value, and in defiance of its proclaimed value.

Petitioner's brief and prayer either concede or state this re-

peatedly. At page 2, the Government contention is stated as being

“ that the Secretary of the Treasury, under section 25, tariff act

of 1894 * * * had power to order reliquidation of the entry

in question at the real, exchange or market value of the rupee of

the invoice. * * * The importers insist that, irrespective of

the cost to chem or its exchange or market value, the rupee could

not be estimated higher than the value placed on the silver therein.”

On page 3: “The Government only sezks * * * to enforce

equality irrespective of the monéy standard of the exporting

country.”

On page 7 (and foot of page 6): “The proviso in section 25, act

of 1894, gave the Secretary the right to direct reliquidation of an

entry at the exchange value of the money specified in the invoice

whenever that was 10 per cent. more or less than the metallic value

proclaimed at beginning of the quarter, and such right did not depend

on a change in the market value of the metal in the coin.” These

concessions render almost needless the citation of proofs as to what

value the Secretary followed, but in fact the record shows (R., p.

15) that the invoice concerned was accompanied by a consular cer-

tificate, declaring that at the date of certification the exchange

value of the rupee was 32 cents; (p. 16) that there was appended

(although wholly unwarranted by any law) to the Mint Director's

estimate as promulgated by the Secretary, the foot-note: “ Value of

EE Kili B ES Prerie Danennce = ——E

the rupee to be determined by consular certificate”; (p. 16) that

the Collector liquidated the entry on the basis of 32 cents per rupee

as certified by the consul, such action being as directed by the

Secretary in Treas. Deens. 18110; (pp. 16-17) that there was a

later liquidation made, on the basis of 20.7 cents per rupee (the

proclaimed value) pursuant to Treas. Deen. 23050 ; (p. 17) that there-

after the Collector sent the entry and invoice to the Secretary,

including, of course, the attached consular certificate, such action

being also as directed in Treas. Decn. 23050; and (p. 17) that the

Secretary returned these papers with order for a new reliquidation

at the consular value of 32 cents per rupee as originally adopted.

The position of the Treasury Department was openly and re-

peatedly announced in many of its “decisions.” Thus in Treas.

Decn. 17766, the Department stated that when, on an invoice from

India, the consul attached a certiticate stating the ‘demand rate of

exchange,” such certificate showed the true value of the rupee, and

should be followed, as coming within the closing provision of section

25, act of 1894. In Decn. 18110 the Department assumed to over-

rule protests of various importers, where it appeared that in liqui-

dation rupees had been converted into United States currency “at

the rate of exchange certified to by the United States consul, which

was considerably higher than the proclaimed rate.” “The evi-

dence,” said the Department, “ contained in the certification of the

United States consular officer on the invoices submitted with the

protests is satisfactory to the Department,” and the liquidation was

approved “ under the authority of section 25 of the act of August

98,1894.” In Decn. 18327 the Treasury directed all Collectors

that “so long as the actual exchange value of the rupee of India

exceeds by more than 10 per cent. the value proclaimed * * *

such actual value (and not the proclaimed value) will be taken in

accordance with the provisions of section 25 afithe, Act of August

28, 1894.”

In Deen. 22511, Collectors were instructed to assess duty on the

proclaimed value of rupees, only, but “If such proclaimed value is

less than that shown by the consular certificates accompanying the

invoices, you will report the facts immediately to this Department,

so that a reliquidation should one be deemed necessary, may be

ordered.” Decn. 23050 ordered the like practice to be applied

on past entries not over one year old, and that ‘‘ No refunds are to

be made pending the receipt of further instructions from the De-

partment.”

PN Noy th RIN 0 RIO IR NE CREOLE IG IRI) SNE IE COLIN

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Mira te) s

It was under this last ruling that the Whitridge entry was at one

time reliquidated at 20.7 cents per rupee (p. 16, finding 9, record),

and the papers forwarded to the Secretary without any actual re.

fund of ihe excess. Whereupon, as already shown, he at once re-

turned tie papers with a statement exactly in accordance with all

these public rulings and his known practice, that “ satisfactory evi-

dence hal been produced to him that the rupees of the invoice were

worth, o1 the day of certification, 32 cents each "—the exact price

certified vy the consul as their exchange valuc. And at that value

translatia: and reliquidation were ordered to be made, and were

made.

It woald manifestly be impossible to contend seriously, in the

face of this showing, that the Secretary had found and followed any

metal valie in his reliquidation order in this case. Nor does the

petitione: expand such contention, dwelling in his point 1, rather

on the albged finality of the Secretary’s order, whatever may have

been its meaning. But unquestionably its finality must be deter-

mined, asalready contended, precisely according to what its mean-

ing was. It would be intolerable to assert “ The act may have been

meant eitier this or that ; if this, it might be illegal ; if that, not

so. But ve defy you to discover which it was.’ This Court has

repeatedly looked narrowly into the acts of officials, supposedly

taken undr statute authority, and on finding that in fact they have

exceeded wich authority, has held their acts invalid.

Shepley vs. Cowan, 91 U.S8., 330.

Morrill vs. Jones, 106 U. S., 466.

Robertson vs. Frank Bros., 132 U. S., 17.

Muser vs. Magone, 155 U. S., 246.

U.S. vs. Passavant, 169 U. S., 16.

Amn. School, ete., vs. McAnulty, 187 U. S., 94.

The petitioner insists (p. 24) that no affirmative evidence or ad-

mission préves that the metal value was not followed. We insist

that the Pregoing résumé embodies unmistakable evidence and

official adnission of it. And this record contains complete proof,

which the gneral appraisers duly admitted (pp. 11-14 record), and

which the Covernment could not contradict, but objected to any ascer-

tainment of facts, showing beyond cavil that the value adopted was

not the vale of the metal in the rupee. The customs adminis-

trative act Sec. 15) prescribes that “all the evidence taken by and

before said appraisers shall be competent evidence ” before the

higher cours. Moreover, the Treasury Department’s own publica-

Eee een iiss ethical natin iadaiiaitatit ROPERS es

tion entitled “ Statistical Abstract of the United States,” for 1900,

the year of this importation—a public and official document cog-

nizable in every court—reports the entire range of prices of silver

during that year, and proves that instead of evidence that the

metal value of the rupee was 32 cents, the Secretary had conclu-

sive evidence to the contrary, and officially published it to all the

world.

“The letter of the Secretary ordering reliquidation of the entry

in the present case,” says the petitioner “ shows that he intended to

follow the proviso in section 25.” But this is error; it shows that

he intended to follow Ais interpretation of the proviso, and this

being demonstrated to be an interpretation which abandoned metal

value for exchange value, must be held void unless the statute

bears such construction. Like all other matters involved in

this petition, all the foregoing was very fully argued out

on the petition in Beebe’s case. It is error on _ the

part of petitioner's counsel to suppose (see petitioner's

brief, p. 20) that case, when thus petitioned, was burdened

with any stipulation as to facts. That was added at a later stage,

and as presented to this Court, the Beebe case was just like the

pressnt in this aspect. Nor is counsel warranted in suggesting

that the writ was denied because the decision of which review

was asked was not final. No such point was raised on either side,

but the arguments for and against the writ were squarely on the

same proposition as now urged. Thus on this question of finality

of the Secretary’s order, the Solicitor-General said (pp. 5, 6, Beebe

Petition): “ Without admitting that the Secretary of the Treasury

must order a reliquidation of an entry at the metal value as

proclaimed by him, must not the order of reliquidation in the

present case, finding ‘the correct and true value of the Indian

rupee at 32.11 cents’ and approving liquidation at that rate under

the authority of section 25, be construed as being made within the

authority of the statute ?”

This point was squarely met, as were all others in the Beebe

petition, by the brief of respondents, and as these desired such action

by this Court as would pass on the merits of the controversy, no

stress whatever was laid on the inconclusive nature of the decree

below. This Court therefore disposed, by its denial of the writ

then prayed for, of the entire question in all its aspects, and

ought not now to be asked again for what it then refused.

As pointed out, the refusa: to concede that the Secretary's re-

AY OD ea, |

liquidation order in this case invo’ -d a resort to exchange value,

is the only difference between this record and Beebe’s—between

the cases, there is no difference. What comment, then, will fairly

meet petitioner’s assertion (p. 8, foot) that “This case has been

carefully framed to present, without complication, the Government's

exact contention ”—and his action, in refusing (although urged by

counsel) to ask for a writ in Beebe’s case, yet in attacking the

validity of its decision on this petition, and suggesting (p. 21)

that the decision of the Court of Appeals in the present case fol-

lows Beebe’s—“ without adding anything of importance ” ?

Iv.

The statute in force as to foreign money values—

Section 25 of the law of 1894—including its proviso,

did not warrant translating the Indian rupee at its

exchange value.

For over a century prior to 1894, the unchanging basis for

reckoning foreign money values has been to determine the value of

the pure metal therein. At first by congressional fiat, later by the

yearly ascertainment of the Mint under statute direction, and still

later by quarter-yearly ascertainment,—dut always the value ascer-

tained and followed being the value of the bullion. And as unchang-

ing has been the rule of this Court that these ascertained bullion

values must be followed. In

Arthur vs. Richards, 23 Wall. 246;

Cramer vs. Arthur, 12 Otto, 612;

Padden vs. Merritt, 115 U. S., 25 ;

U. S. vs. Klingenberg, 153 U. S., 93,

merchants tried to avoid the force of these statutory values, and

undeniably showed, in some of the cases, that an equitable adjust-

ment of their duties required such avoidance. But in every case it

was held that the statute was clear, its continued purpose uniform,

its operation certain, calculable, and just in the long run, and that

merchants and collectors alike must meet its terms without devia-

tion.

pmcneneemnes ME Ti te SAGO ROOTED RE

So LE LETTS LEER LEM EOL L, BLO EY oR

LoOrner

—

In Arthur vs. Richards (supra) this Court, after pointing out

reasons why Congress might wisely announce a value for the pound

sterling, based on the pure metal therein, proceeded thus :

“There were also other reasons, having respect to the

“ fictitious par of exchange so long persisted in by the

“ bankers of both countries, which made it expedient for

“ Congress itself to fix the value of the pound sterling.”

So that the precise variance, viz.: between bullion and exchange

yalues,—between intrinsic and fictitious values,—on which the

petitioner now cries out as menacing dire results unless the Secre-

tary be permitted to adopt the fictitious (mistermed the “true”

value in the brief), was-discussed and disposed of to opposite effect

by this Court, so long ago as 1875.

In the Hadden and Klingenberg cases (supra), as petitioner

admits (brief, p. 26) “ the importer was required to pay excessive

charges.” In other words the merchants in those instances suffered

precisely the hardships which it is alleged the Treasury suffered in

this, and every cry as to undervaluation, violation of treaties, etc.,

which the Treasury now makes, was in its reverse aspect as forcibly

in their mouths then. But this Court said, they must accept the va*ue

determined according to statute. It is indeed so evident that prior

to 1894 the system of valuing foreign currencies had been an un-

changing one of adherence to their bullion values, that the petitioner

recognizes his chances as depending wholly on the theory that the

proviso to the Act of 1894 intended, and enacted, a complete de-

parture from this time-honored system, repeatedly endorsed by this

Court as just to all parties. Conceding, as he must, that there had

been a gradual and conservative progress in the statutes, as to

method only, from occasional deciarations of bullion values by Con-

gress to annual ones by the Secretary, based on actual ascertainment

at the Mint, and from annual to similar quarterly ones, but never

departing a hairsbreadth from bullion values, he is nevertheless

compelled to contend that the new proviso, attached in 1894 to the

otherwise literal re-enactment of an earlier law, meant substantially

to nullify that entire system, and substitute exactly the fluctuating,

uncertain measure of foreign money values of which this Court said,

in Cramer vs. Arthur (supra).

“ Parties cannot go behind the proclamation, any more

“than they would have been permitted to go behind the

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“ statute, for the purpose of proving, by parol or by financial

“* quotations in gazettes, that its valuations are inaccurate,

“* * * Importers and collectors must abide by the rule

“as proclaimed. It would be a constant source of confusion

“and uncertainty if every importer could, on every invoice

“raise the question of the value of foreign moneys and

“ coins.”

And, again :

“ It is of the utmost consequence to the Government, and

“is,on the whole, most beneficial to importers, that the

“ value of foreign moneys should be officially ascertained,

“and that they should be fixed by a uniform method or

“ rule.”

But it seems amply certain, even were there not a half-score or

so of uniform decisions to that effect—that the proviso to Section

25 meant or enacted no such change. For :

1. Proviscs are not chosen as the vehicles for radical new sys-

tems. Their established function is to create limited exceptions to

the generality of the law to which they are annexed.

2. There is no reason whatever to Suppose Congress desired, in

1894, to abandon the time-honored basis of pure metal values for

foreign coins.

3. Had Congress intended to substitute exchange for bullion

values, it certainly would not have gone about it by re-enacting the

law of 1890 intact, and adding a proviso whose effect would be to

expunge it wholly or largely.

4. Nor is it reasonable to suppose that while re-enacting the

former law, Congress would endow the Secretary with any such

dangerous or arbitrary power as to override it whenever he saw fit.

5. Analysis of the very words of the proviso proves it open to no

such construction as the petitioner asks for.

6. The valuation to be put on foreign moneys has no legal con-

nection with appraisement of imports.

1. The established rule as to provisos.

Since the earliest reports, a proviso has been recognized by this

Court as something reasonably qualifying, and hence engrafted upon

pee.

a statute, rather than a thing intended to effect a radical departure

therefrom. In 5

Minis vs. U. S., 15 Pet., 423,

Mr. Justice Srory said (at p. 445) :

“ Tt would be somewhat unusual to find engrafted upon

“anact making special and temporary appropriation, any

provision which was to have a general or permanent appli-

“cation to all future appropriations. * * * The office

« of a proviso, generally, is either to except something from

“ the enacting clause or to restrain or qualify its generality,

“ or to exclude some possible ground of misinterpretation of

« it,” ete.

In United States vs. Dixon, 15 Pet., 141,

the same eminent authority said:

“ Where the enacting clause is general in its language and

“ objects, and a proviso is afterwards introduced, that pro-

“ viso is construed strictly, and takes no case out of the en-

“acting clause which does not fall fairly within its terms.”

Yet the petitioner asks this Court to assume that Congress, in

1894, re-enacted the old system for pure metal valuations, and then

by this obscure proviso authorized the Secretary, whenever such

value was found to vary 10 per cent. from the exchange value, to

abandon that and adopt this, wholly discredited though it was by

many decisions, as arbitrary, fictitious and enabling no man to know

where he stood. And, moreover, that it authorizes him to adopt

exchange values on one and metal values on another invoice pre-

cisely parallel, at his will and without stating his reasons. Could

any theory of statutory intent be more repugnant to good sense

and good conscience, as well as to established tenets of statute con-

struction !

2. There was no occasion why Congress should, in 1894, abandon

pure metal valuations, as to Indian or any other foreign money.

The most prolonged effort of petitioner’s brief is to demonstrate

that the Indian coinage situation, of 1890 to 1894, was such that

Congress must be supposed to have aimed at a cure, in the proviso

to section 25, for evils which it induced.

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SPARE LAAN SS om

When, however, we recall that neither this Act, nor its section

25, nor even the proviso thereto, was adopted with any special ref.

erence to India, the importance of the alleged history of the rupee

coinage (for none of this is in proof, nor cited from any authoritative

publication, but merely asserted by counsel) becomes extremely

slight.

But even as stated therein, the facts adduced in the brief are

not impressive. On July 1, 1894, the bullion value of the rupee

was 21.7 cents. and its exchange value 26.1 cents. Jere was no

greater variance than had existed at or a ufter 1890 rn the bullion value

ttself, between one ascertainment and the next. In August 1893 the

act was passed. Hence it was full as likely to provide for taking up,

on proof, the varying value of silver, as the variance between silver

and exchange. Either plan would be new, but one would be revolu-

tionary, and confide an unusually broad power to an executive official,

while the other would be a reasonable amendment and improvement

on the established system, wholly in line therewith. And one would

involve a distortion of statutory principles in view of conditions in

a single country (unimportant in trade with ours), while the other

would apply to conditions as they varied from a common cause

throughout the world.

The petitioner suggests (p. 8) that in an act “to raise revenue,” |

it must be presumed that Congress had flung overboard the whole |

usage as to pure metal values, so as to grasp the extra revenue to

be derived from a resort to the fictitiously high exchange value of

Indian rupees. But Congress was not enacting, as the petitioner

would have this Court suppose, a law “ whose express purpose was

to provide revenue,” but one “to reduce taxation, to provide reve-

nue for the Government, and for other purposes” (See the title to

the Act of 1894). Here again we find that desire to profit by ex-

purgated statement, which is so notable in the attitude of the

Treasury throughout this case.

Reasoning from the course of exchange in India from 1890

onward, the petitioner seeks to support the argument that the latest

decision of the circuit court of appeals in Beebe’s case (which how-

ever, he does not seek to bring here for review by writ) was rendered

on acomplete misapprehension. He thinks Judge Putnam erred

in asserting that the great excess of exchange over pure metal value

of rupees, shown in Beebe’s case, “did not exist when the act of

1894 was passed, and it could not have been in contemplation of

Congress.”

]

‘ew eal

But this also is clearly fallacious. By -petitioner’s own figures we

see that an excess of 4.4 cents in July, 1894, had grown to one of

12 cents in 1898. Thus we must note that Judge PuTnam’s com-

ment was exactly warranted, and unless Congress can be credited

with a prophetic vision over the four intervening years, it is evident

that it must, in 1894, have contemplated the day-to-day fluctuations

of bullion, and by its enactment, proceeded to take proper measures

to meet them.

It is fair to add that even the extreme variation of 12 cents

between the real and the fictitious value of the rupee was not

beyond the range of past occurrences. In Cramer's case (supra)

the difference was between 40 and 47 cents per florin, and in

Hedden’s case there would seem to have been a difference of 17

cents on every Mexican dollar. These variations were not large

enough to make Congress abandon or modify the pure metal basis.

3. Congress would not have gone to work as it did, in the Act of

1894, had its intention been as petitioner alleges.

Manifestly, if the legislative intent had been to depart from

bullion values, the way to accomplish it would not have been by

re-enacting bullion values.

Petitioner cannot mean to urge on this Court that Congress

intended to embody one valuation for India and a different one for

all other countries. Whatever basis was to apply to one must

apply to all, “ Exchange values in certain countries are varying

too widely from bullion values, hence, where they do vary widely,

they must be taken in lieu of bullion values ”—such is the view

which petitioner commends to the Court as being that of Congress.

To give effect to this view, we are asked to believe that Congress

deliberately renewed the pure metal value system, and then resorted

to this proviso to undo it again, instead of enacting that the

exchange or legal tender value of foreign moneys should be adopted

in reckoning duties—thus giving this as a right to all, instead of

making the choice of basis optional with the Secretary of the

Treasury.

4. This option said to have been given to the Secretary would be

both unusual and dangerous.

Throughout all the statutes and decisions as to foreign money

values, while computation was always left to executive officials, Con-

Kiri FAROE ENS #42"

gress never yet gave them power to choose the basis, as the petitioner

thinks was done in 1894.

Such officials have a dangerous tendency to assume power and. -

to exceed their powers. Congress has not favored it, and the courts

have repeatedly corrected and rebuked it.

Christy vs. Unwin, 3 Per. Dav., 208.

4 Galpin vs. Page, 18 Wall., 350.

S Marriott vs. Brune, 9 How., 634.

2 Greeley vs. Thompson, 10 How., 225.

“ Downs vs. U. S., 187 U. S., 496, and cases cited under

: point IIT. thereof.

No principle is more cherished by this Court, or more clearly

and oft asserted i» t!:> above cases, than that the evidence on which

men are taxed, or tuv.. rights restricted, must be reviewable in the

tribunals of law.

The history of the present issue shows forcibly the need of

such safeguards, ard that the Treasury officials have repeatedly

exceeded their powers duly conferred by law. Thus:

A. The Mint Director, empowered by Congress merely to ascer-

tain the metal values of foreign moneys, went wholly beyond his

power when, in the foot-note to his table of metal values, he sug-

gested the ignoring of these, which Congress had ordered should be

followed.

B. The Secretary of the Treasury transcended his powers when,

by the circulars above quoted, he ordered that all duties on Indian

goods be calculated according to exchange values as certified by

our consuls. Be it remembered that at first he did not even trouble

to “ order reliquidation,” but asserted that the proviso to section 25

warranted an order given prospectively, as to all entries.

C. The Secretary again transcended his powers when (Treas,

Decn. 17766) he ordered that protests against such exactions should

not be submitted to the general appraisers, as section 14 of the act

of June, 1890, directs that they shall, but should be forwarded to

him.

D. Again he exceeded his power when (Treas. Deen. 18110) he

proceeded to decide such protests adversely, against the specific

_ __ provision of the same law, that the general appraisers shall decide

them.

u Pursuant to this surprising policy, the petitioner asks this

Court to perceive error in the many rulings already made upon

this issue, because they scrutinized the Secretary’s actions, and

—

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thereupon found them illegal. Is an official who has made this

record, a proper depositary of the vast power of deciding when the

conditions warrant him in repudiating the standard of value adopted

by Congress, and adopting such other as he sees fit? And that,

without any right of review ?

Yet the petitioner naively propounds (pp. 21 and 24) the problem :

since the Secretary’s decisions under the currency value statutes

have so often been held conclusive, why not also his decision under

the proviso ?

The manifest answer is, that if “ under ” the currency laws he

had assumed to determine for himself the scope of his power there-

under, and had determined it wrongly, his decision would not have

been conclusive : it is because he has not acted “ under” the proviso

at all that he is reviewable now.

5. The very words of the proviso clearly negative any such intent

or effect as the petitioner contends for.

The body of section 25 literally requires an ascertainment

and promulgation of pure metal values. The proviso enacts that

when the Secretary is satisfied that “the value * * * of the

money specified in the invoice was * * * ten per cent. more or

less than the value proclaimed,” etc., he may order reliquidation.

Ten per cent. more or less than the value of what? Is the Sec-

retary free to order reliquidation at some fictitious value of the

rupee of India, if he is satisfied that such value is ten per cent.

more than the last-proclaimed metal value of the yen of Japan ?

Of course not. The value of the thing proclaimed must be found

changed. Such is the only reasonable or even tolerable reading of

the proviso. And as the thing proclaimed is, and must be, metal

value, the thing found variant must be metal value.

So that the very words of the law enforce the reasonable theory

as to what Congress would intend by an enactment on the subject,

at the time, in the form, and with the surrounding conditions and

past history of this one, and the petitioner’s belief that he, but not

the importer, is at least freed from the hard, unchanging rule of

bullion values, appears as a mere chimera, based on a plain dis-

tortion of the natural sense which the law carries.

6. But the petitioner insists that a construction must be adopted

which will free the Government's hands from adherence to bullion

values, in vrder to avoid undervaluations, violation of treaties, ete.

LEO LL REDE IPS LIOR EIT al

oe |

wc SPER Soe OE ie RS hh AR SOS PSR AOR DEM TT

{

As already mentioned, the importance of equal valuations for duty

purposes, seems not to have impressed the Treasury deeply when,

in Hadden’s and Cramer's cases, these importers were compelled to

pay duty on much more than the actual cost of their goods. Nor

was it apparently feared, then, that the application of pure metal

valuations on florins or Mexican dollars would gravely complicate

our treaty relations. It seems to make a wide diff 2rence, whether

the collection of excess revenue or a diminution of duties is

concomitant.

As a matter of fact, the appraisement of imports for duty pur-

poses is a step wholly separate and distinct from the translation of

foreign currency values. Appraisement is directed by law to deter-

mine “ the actual market value and wholesale price of the merchan-

dise * * * in the principal markets of the country whence the

same has been imported.” It is thus necessarily an appraisement

in the currency of those markets, and the law directs that invoices be

made in such currency (Sec. 2, Act of June 10, 1890). The goods

herein concerned were completely appraised (their invoice value

being found correct) before the translation of the rupees was under-

taken at all. The latter was a detail merely of computation, to be

performed by the Collector.

This principle was fully recognized in the rulings of this Court

in the Hadden, Cramer, and other cases above cited. And while

perhaps enough has been said about equality, it may be well to

point out that such equality as the petitioner thinks this case in-

fringes, is wholly unattainable, and is infringed daily and hourly in

every custom house. Until we are able to impose a level price upon

the markets of every foreign country, goods can be bought cheaper

in one than in another. And when those goods arrive here, our

law directs that they be appraised at market value in the country of

exportation. Thus, in the sense deemed dangerous by the petitioner,

treaties are violated whenever a merchant imports—and_ pays an ad

valorem duty on—woollens from England at slightly lower prices

than similar goods cost in France, or whenever some proprietary

chemical, like phenacetin, is brought from Switzerland, where pat-

ent monopolies do not thrive, at a price far below its cost in Ger-

many, where patents protect its proprietors against competition.

This Court has determined, in

“The Cherokee Tobacco,” 11 Wall., 616,

that no treaty can obstruct the operation of a law afterward enacted

by Congress. Nor would there, in any aspect, be violation of our

eee

a ~ a

treaties with other nations, in refunding duties held by the courts

to have been taken without warrant of law.

We believe that every aspect of the petition herein has now

been considered and fairly answered. They were all answered, except

the fallacious argument based on the history of rupee coinage—

when this same issue was sought to be brought up by certiorari in

1901. Hence this brief is largely a restatement of what was admir-

ably stated by the counsel for Beebe in their brief then filed, and

the Court is urged to secure from its archives, and to examine, the

two briefs on which the prayer then denied was submitted.

Vv.

The writ prayed for in this case should be denied.

ALBERT COMSTOCK,

Counsel for respondents.

Apis B. Browne,

Wit R. Sears,

of Counsel.

‘ ¢

& 4

¥.

APPENDIX A.

THE DECISIONS AS TO THE VALUATION OF

RUPEES.

POR DTI ORANG, RENT TOUTE ET 9h SIRI OTN

COP EA

The General Appraisers’ decision in Newhall’s —

case was not published, but is discussed in é

The U. S. Circuit Court in Newhall’s case (91 Fed.

Rep., 525—January 7, 1899).

Cort, Circuit Judge. This is a petition for a review of thede- ~

cision of the Board of General Appraisers upon a protest of the im- &

porters relating to the amount of duties growing out of the conver-

sion to American money of the silver rupee, in the case of an

invoice of 25 bales of tanned sheepskins imported into the port of

Boston from Madras, India. In reducing the appraised value of

the merchandise to American money, the Collector adopted the rate —~

of $.285 per rupee, which was the exchange rate as certified in the

consular certificate accompanying the invoice. At the dateof the —

Consul’s certificate, the value of the rupee, for the purpose of liqui- ¥

dating duties, as estimated by the Director of the Mint and pro- —

claimed by the Secretary of the Treasury, was $.233. The Board of

General Appraisers reversed the decision of the Collector, and

directed him to reliquidate the duties on the basis of the proclaimed

value.

The question presented is whether, under the law, in reducing

foreign standard coin to United States currency, the value shall be

that of the pure metal of such coin, as proclaimed by the Secretary

of the Treasury, or shall be its exchange value.

BAL IAETE ISELIN

Tie SRS ite!

In the table of estimate of the value of foreign standard coing

& issued by the Director of the Mint for the quarter beginning Janu-

3 ary 1, 1896, we find :

4 Country. Standard. Monetary unit,

4 India. Silver. Rupee.

é Value in terms of Coins.

a U.S. gold dollar. Gold: mohur.

4 233, ($7.10.5)

Silver: rupee

and divisions,”

Accompanying this table the Secretary of the Treasury issued

the following :

Wasuinaton, D. C., January 1, 1896.

“ The foregoing estimate, by the Director of the Mint, of the

value of foreign coins, I hereby proclaim to be the value of such

coins in terms of the money of account of the United States, to be

followed in estimating the value of all foreign merchandise exported

to the United States on or after January 1, 1896, expressed in any

of such metallic currencies.”

Attached to the invoice was this consular certificate dated Jan-

uary 11, 1896:

“ Certified that the demand rate of exchange on London this

day is '/, *1/,, per rupee, and that the New York demand rate of

exchange on London as quoted by Reuter on 10 inst, is 4.89 per

pound sterling ; the value, therefore, in American gold, of the goods

referred to in certified invoice No. 17, is as follows :

Rs. 12076.9.0 at 1/, §1/,,—£702.17.10. |

£702.17.10 at 4.89 —$3,437.15.”

According to this certificate, the value of the silver rupee, in

terms of the gold dollar of the United States, is .285.

In expressing in United States money the value of foreign stand-

ard coins, it has always been the sound policy of the government

to take the intrinsic or pure metal value of such coins. Both the |

importer and government recognized that it was important to have

a fixed and permanent value, though such value might be only ap-

proximately true, rather than a fluctuating value, based upon finan-

cial quotations in gazettes, trade conditions, or rates of exchange,

which would necessarily result in uncertainty, confusion, and inter-

minable litigation.

a pe AE a sente : mame ge Saaiiediiemamenet..0

The first tariff act was enacted July 4, 1789 (1 Stat. 24). Qn

July 31, 1789 (1 Stat. 29), an act was passed to regulate the collec-

tion of duties, and section 18 provided that the pound sterling of

Great Britain and the coins of other countries designated shall be

estimated at the rates specified, “and all other denominations of

mouey in value as uear as may be to the said rates.”

The acts of August 4, 1790 (1 Stat. 167), and of March 2, 1799

(1 Stat., 627), contained similar provisions. The latter act (section

61) declares :

“ And all other denominations of money, in value, as nearly as

may be to the said rates, or the intrinsic value thereof, compared

with money of the United States.”

It also contained the following proviso :

“ Provided, that it shall be lawful for the President of the United

States, to cause to be established fit and proper regulations for esti-

mating the duties on goods, wares and merchandise imported into

the United States, in respect to which the original cost shall be ex-

hibited in a depreciated currency, issued and circulated under au-

thority of any foreign government.”

From 1799 to 1873 there were various acts specifying the value

of additional foreign coins, or changing the rate previously estab-

lished. Previous to 1873 there were three methods of estimating

foreign currencies for assessment of duties: (1) For most foreign

standard coins, specified rates prescribed by statute ; (2) for coins

not specifically enumerated in the statute, valuations “as near as

may be” to the specified rates or “ intrinsic value”; (3) for de-

preciated currencies issued and circulated under the authority of

foreign governments, such valuations as the President might estab-

lish by regulations.

By the act of March 3, 1873 (17 Stat. 602; Rev. St. § 3564), in-

stead of separate enactments for each coin, there was substituted a

general law, as follows :

“That the value of foreign coin as expressed in the money of

account of the United States shall be that of the pure metal of

such coin of standard value; and the values of the standard coins

in circulation of the various nations of the world shall be esti-

mated annually by the Director of the Mint, and be proclaimed on

the first day of January by the Secretary of the Treasury.”

This act was amended October 1, 1890 (26 Stat. 624), by re-

quiring the estimate by the Director of the Mint and the proclama-

tion by the Secretary to be made quarterly instead of annually,

Under this act, the value of foreign standard coins “ shall be that

of the pure metal,” and such value as estimated by the Director of

the Mint, and proclaimed by the Secretary of the Treasury, has the

force of a statute. Collector v. Richards, 23 Wall. 246; Cramer y,

Arthur, 102 U.S. 612; Hadden v. Merritt, 115 U. S. 25, 5 Sup. Ot

1169; U.S. v. Klingenberg, 153 U. S. 93, 14 Sup. Ct. 790.

In Collector y. Richards (pages 257, 259), Mr. Justice Braptey,

speaking for the court, said :

“The plain meaning of this language [of act of 1873] is that

the value of foreign coins, in United States money, shall be meas-

ured by the amount of pure metal contained therein wher of stand-

ard value ; that is, when of the weight and fineness required by the

laws and regulations of the country where they are produced.

* * * The true method of comparing their money of account

with ours, when both are based on actual coin, is to compare the

standard coins of the two countries in a perfect state, and to as-

certain the actual amount of pure metal in each. This is the

— at which Congress seems to have arrived, and, as we think,

wisely.”

In Cramer v. Arthur (pages 619, 620), the same eminent Judge

said, in the opinion of the court :

“ The plaintiff seeks to go behind this valuation, and to show

that, at the time of the purchase of the goods, the value of the

silver florin in Vienna, as quoted in the papers, and as exhibited by

the actual rate of exchange, was less than 47°°/,,, cents, namely,

454°/,,, cents, and that the value of the paper florin was 437'/,,,

cents. This, we think, the plaintiff cannot be allowed to do. The

roclamation of the Secretary and the certificate of the Consul must

be regarded as conclusive. In the estimation of the value of for-

eign moneys for the purpose of assessing duties, there must be an

end to controversy somewhere. When Congress fixes the value by

a general statute, parties must abide by that. When it fixes the

value through the agency of official instrumentalities, devised for

the purpose of making a nearer approximation to the actual state

of things, they must abide by the value so ascertained. If the cur-

rency is a standard one, based on coin, the Secretary’s proclamation

fixes it; if it is a depreciated currency, the parties may have the

benefit of a consular certificate. To go behind these, and allow an

examination by affidavits in every case, would put the assessment

of duties at sea. It would create utter confusion and uncertainty.

* * * It is of the utmost consequence to the government, and

it is, on the whole, most beneficial to importers, that the value of

foreign moneys should be officially ascertained, and that they should

be fixed by a uniform method or rule.”

CARROTS . ‘ serena i

_ —— Tigao NOE PR STORRY ETN RI RNR Ne ON NRE -

In Hadden v. Merritt the court (115 U.S. 2%, 5 Sup. Ct. 1170)

said :

«“ The value of foreign coins, as ascertained by the estimate of

the Director of the Mint and proclaimed by the Secretary of the

Treasury, is conclusive upon custom-house officers and importers.

» * * There is no value, and can be none, in such coins, except

as thus ascertained.”

From the origin of the government down to the passage of sec-

tion 25 of the tariff act of August 27, 1894 (28 Stat. 552), the value

of foreign standard coins, for the purpose of liquidating duties,

was based upon their intrinsic or pure metal value, as expressed in

the money of account of the United States. The method adopted

previous to 1873 was by special enactment fixing the value as to

certain specified coins, and by treasury regulations as to nonenu-

merated coins to ascertain “as near as may be” the intrinsic value,

and since 1873 by estimate of the Director of the Mint, and pro-

claimed by the Secretary of the Treasury. The only exception was

in the case of a depreciated currency issued and circulated under

authority of any foreign government, which, by the act of 1799 (now

section 2903 of the Revised Statutes), was subject to regulations

established by the President. As to depreciated currency, it was

early directed by the President that the consular certificates of value

annexed to the invoices should govern.

Section 25 of the tariff act of 1894 reads as follows:

“ That the value of foreign coin as expressed in the money of ac-

count of the United States shall be that of the pure metal of such

coin of standard value ; and the values of the standard coins in cir-

culation of the various nations of the world shall be estimated

quarterly by the Director of the Mint, and be proclaimed by the

Secretary of the Treasury immediately after the passage of this act

and thereafter quarterly on the first day of January, April, July,

and October in each year. And the values so proclaimed shall be

followed in estimating the value of all foreign merchandise exported

to the United States during the quarter for which the value is pro-

claimed, and the date of the consular certification of any invoice

shall, for the purposes of this section, be considered the date of

exportation : provided, that the ee of the Treasury may order

the reliquidation of any entry at a di erent value, whenever satis-

factory evidence shall be produced to him showing that the value

in United States currency of the foreign money specified in the in-

voice was, at the date of certification, at least 10 per centum more

or less than the value proclaimed during the quarter in which the

consular certification occurred.”

camel

PRAGA I AI B

SIRI A INET IT

FS RES RE ae STE NL oe 9 a AR RT RN ae UE IRS CE OORT ET CEE

bnieiieadl Cow,

| rans CALA cae

This section, until we reach the proviso, is substantially a 1.

enactment of the previous law. The contention of the government

rests upon the proposition that the word “ value” in the proviso ig

not limited to the value “of the pure metal,” but extends to other

methods of valuation never before adopted with respect to specified

foreign standard coins. To adopt this construction is to hold that

Congress intended to depart from the long-established rule, and to

introduce a new and uncertain mode of valuation of cases coming

within the terms of the proviso. The result is that the body of the

section provides one way, and one way only, for estimating the

value of foreign standard coins, while the proviso covers other ways

in conflict with former well-settled principles. Certainly the court

should not adopt such a construction, if it be at all doubtful. To

hold that, where the value of the foreign coin during the quarter

varies less than 10 per centum from the value proclaimed, the pure

metal value is to govern, and that when it exceeds 10 per centum

the Secretary of the Treasury may adopt any standard of valuation

he sees fit, based upon rate of exchange, trade conditions, or finan-

cial reports, would result in the introduction of those elements of

uncertainty and confusion which the law has aimed especially to

prevent. The purpose of the proviso, in our opinion, was not to

change the principle in estimating the value of foreign coins, but

rather to permit of a different estimate on the same principle, if it

should appear at any time during the quarter that the proclaimed

value was to a considerable degree at variance with the actual fact

existing at the time of any given importation. While the standard

of valuation should be fixed and based on intrinsic value, the whole

legislation on the subject shows an effort on the part of Congress to

provide speedier means for correcting the valuation when it is

shown to be wrong. Until 1873 any change in the valuation of

specified foreign standard coin required a special enactment. By

the statute of 1873 the proclaimed estimate must be made annually.

By the statute of 1890 it must be promulgated quarterly. The

proviso, in section 25 of the act of 1894, was simply another step

in the same direction, and was intended to permit a new estimate of

valuation at any time during the quarter where there was found to

be an error of at least 10 per centum. This is the natural construc-

tion and evident intent of the whole section, and is in harmony

with previous legislation. The proviso must be considered in con-

nection with the body of the section and the subject-matter to

which it relates. Under a familiar principle of statutory construc-

—————— is aaa soa EEE ARB re AH HS SOI PR PEL PRIORI

tion, a proviso is to be strictly construed, and it “ takes no case out

of the enacting clause which does not fall fairly within its terms.”

U.S. v. Dickson, 15 Pet. 141, 165. This proviso has reference to

the subject-matter treated in the body of the section, and any broad

construction of the word “ value,” which should enlarge its scope

as therein defined, would be doing violence to every sound rule of

statutory construction, and is contrary to the general context of the

proviso itself, taken as a whole and in connection with what pre-

cedes. It would introduce confusion and inconsistency into a stat-

ute which is otherwise plain and intelligible.

In this case the value of the rupee, as estimated by the Director

of the Mint and proclaimed by the Secretary of the Treasury, was

fixed at $.233 for the quarter beginning January 1, 1896. The date

of the consular certificate attached to the invoice was January 11,

1896, and the value of the rupee in exchange, as therein certified,

was equal to $.285. This represents an appreciation of 23 per cent.

over the proclaimed value, and therefore comes within the terms of

the proviso ; and the Collector was right in the action he took if the

word “value” in the proviso should be construed to mean value

in exchange, or any other standard of value except that “of the

pure metal.” We hold that the proviso must be limited to the sub-

ject-matter treated in the body of the section, and therefore that it

is only applicable to those cases where “satisfactory evidence” is

produced that the value of the pure metal of such foreign coin has

either appreciated or declined 10 per cent. as compared with its

proclaimed value. As there is no evidence on this point in this

case, the proclaimed value must stand, and the Collector should

have liquidated the duties on that basis.

We understand, from the brief of counsel and the later instruc-

tions of the Treasury Department, that the government relies mainly

on the proviso in section 25 for justification of the Collector's ac-

tion. In two letters, however, to the Collector, bearing date, re-

spectively, May 12, and June 17, 1896, in reply to an inquiry for

instructions, the Secretary of the Treasury says that the rupee must

be regarded as a depreciated currency, upon the ground, apparently,

that its nominal value, as he states, is $.444, and that, therefore,

entries of merchandise covered by invoices made out in such cur-

rency should be liquidated at the value certified by the Consul.

There seems to be nothing in the facts of the case which warrant

the treatment of the silver rupee at the time of this importation as

a depreciated currency, under the law. The provision respecting

‘

Bivens: Bi} .2 ite

depreciated currency first appears in the proviso of the sixty-first

section of the act of 1799. “This proviso has always continued in

force, and now constitutes section 2903 of the Revised Statutes.”

Cramer v. Arthur, 102 U.S. 612, 617. Speaking of this proviso,

Mr. Justice BrapLey said (page 618), in that case :

“It was passed at a time when the nations of Europe were at

war and the United States were neutral. In England and France,

and perhaps other countries, specie payments had been suspended,

and currencies based on government credit had been adopted. The

law seems to have had in view artificial money of this kind; a de-

reciated currency, not based on specie, but still ‘issued and cireu-

ted under authority of the government.’ ”

The President, acting through the Secretary of the Treasury, has

established regulations on the subject. The treasury regula.

tions (Ed. 1874, art. 993, as amended by circular, S. S. 1870) were

as follows:

“First. Where the standard value of a foreign currency has

been proclaimed by the Secretary of the Treasury in the manner

provided by law, or, not having been so proclaimed, has been fixed

by special enactment, that value is to be taken in all cases in esti-

mating customs duties, unless Collectors have been otherwise in-

structed, or unless a depreciation of the value of the foreign cur-

rency expressed in an invoice from the standard of that currency

shall be shown by consular certificate thereto attached. Secondly.

Where the standard value of a foreign currency has not been pro-

claimed by the Secretary of the Treasury, in the manner provided by

law, an invoice expressed iu such currency must be accompanied by

a consular certificate, showing its value in standard gold dollars of

the United States.”

In 1891 the provision was amended as to depreciated currency

(S. S. 11,661) so as to read :

“If that currency be depreciated, each copy of the invoice

should be accompanied by a consular certificate (Form No. 144)

stating the percentage of depreciation of the currency actually

paid as compared with the corresponding standard coin currency,

and the value in such standard coin currency of the total amount of

the depreciated currency paid for the merchandise mentioned in the

invoice.

Form No. 144 is as follows:

OF. atine nee , Consul of the U. S. of America, do hereby certify

that the true value of the currency of the -.._.__- Tt cunntitded , in

kalashi per cent. as compared with the corresponding standard

coin currency, and that the value in such standard coin currency of

the total amount of the currency actually paid for the merchandise

In this case the consular certificate was not in the form required

for a depreciated currency. So far as appears, the rupee was not

treated as a depreciated currency coming under the regulations of

the President, as provided in section 203, and which calls for a

articular form of consular certificate. On the contrary, on Janu-

ary 1, 1896, the value of the silver rupee in money of the United

States was fixed, for the three months following, by estimate of the

Director of the Mint, and so proclaimed by the Secretary of the

Treasury, aS provided in section 25 of the act of August 27, 1894.

There is no evidence in this record that at the date of the importa-

tion the silver rupee was other than a foreign standard coin of

India, and so coming under section 25. To say that a currency was

depreciated when its value, as certified by consular certificate, was

more than 20 per cent. greater than its proclaimed value, would

seem an unwarranted construction of section 2903, as it has always

been interpreted.

The second question raised by the government under the assign-

ment of errors is that the Board of General Appraisers had no juris-

diction to review the action of the Collector in estimating the value

in United States money of foreign coin. This case is not one of

disputed appraisement of the value of imported merchandise, as to

which the decision of the Board of General Appraisers is made final

under section 18 of the customs administrative act of June 10, 1890.

U. S. v. Klingenberg, 153 U. S. 93, 102, 14 Sup. Ct. 790; Hilton v.

Merritt, 110 U. S. 97, 3 Sup. Ct. 548. The dutiable value in rupees

of the merchandise in this case is admitted under the agreed state-

ment of facts ; the only issue being whether this court or the Board

of General Appraisers has jurisdiction to review the action of the

Collector in reducing to United States currency the value of the

rupees. Such jurisdiction, if any, must be found in sections 14 and

15 of the act of June 10,1890. The jurisdiction conferred upon

the circuit court by section 15 is co-extensive with the jurisdiction

conferred on the Board of General Appraisers by section 14. This

was so held by the supreme court in the Klingenberg Case, 153 U.

S. 93, 14 Sup. Ct. 790, in the following words :

‘The subjects of review by the circuit court, provided for by

section 15, extend to all questions of law and fact in respect to

£.

a ha

AEN OE EY

which the Board of General Appraisers have appellate jurisdiction,

except the decision of that board as to the dutiable value of mer.

chandise, which is provided for by section 13, and is made con-

clusive against all parties interested.”

1a construing section 14, the court says :

“ By section 14 the Collector's decision on rate and amount of

duties, including all dutiable costs and charges, and as to all fees

and exactions of whatever character (except duties on tonnage),

may be the subject of appeal to the Board of General Appraisers.”

The Klingenberg Case decided that where the Collector was sim-

ply called upon, under the statute, to follow the estimate of value

made by the Director of the Mint, and proclaimed by the Secretary

of the Treasury, his action was not subject to review by the Board

of General Appraisers. If, for example, in the present case, the

Collector had adopted the proclaimed rate for the rupee on January

1, 1896, of $.233, his decision would have been final. This con-

clusion of the court was based upon the rule laid down in Collector

v. Richards, Cramer v. Arthur, and Hadden y. Merritt, wbi supra.

These authorities show the absolute conclusiveness of the value

estimated by the Director of the Mint and proclaimed by the Secre-

tary of the Treasury of the standard coin of foreign countries. After

holding that the Collector’s construction of the value as proclaimed

was correct, the court said :

4 “ Yost Teme! ih Bak Oe Blinn ts

EN ARR ET LT REMIT SMR TR OI EAC Oe yA eer aN :

“ This —s the proper construction to be placed upon the

proclamation of July 1, 1892, we are of opinion that the Collector's

action in adopting the value of the gold florin at the estimate

fixed therein was not subject to review by the Board of General Ap-

praisers, under the principle laid down in the authorities already

referred to.”

All the Klingenberg Case decided was that when the Col-

lector followed such proclaimed value his action was not the sub-

ject of appeal, under section 14. The present case is the reverse,

for here the Collector refused to be governed by the proclaimed

value.

As was said by the circuit court of appeals for the Second cir-

cuit, speaking through Judge Suirmay, in the case of Wood v. U.S.

(1896) 18 C. C. A. 553, 72 Fed. 254, in which the question arose

whether the Collector should liquidate the duties according to the

value of the silver ruble proclaimed October 1, 1891, or according to

the value proclaimed January 1, 1892:

i ils ass it ge BRAM a os ean ona eee aed

Sti

i a

Passat:

“ In the Klingenberg Case the Collector was simply called upon

by the statute to follow the estimate made 4 the Director of the

Mint, and proclaimed by the Secretary of the Treasury, and his ac-

tion was not the subject of reversal. In this case the Collector was

compelled to construe the statutes, and determine which proclama-

tion he should observe. The Klingenberg Case is not an authority

in favor of the proposition that an act of the Collector in regard to

yaluation of foreign coins which is or which may be in violation

of the statutes cannot be the subject of review or of reversal by

the Board of General Appraisers. On the contrary, the opinion as-

serts that, by section 14 of the customs administrative act of June

10, 1890, ‘if the decision of the Collector imposes an excessive

amount of duties, under an improper construction of the law, the

importer may take an appeal to the Board of General Appraisers,

whose decision on such questions is not made conclusive, as it is in

respect to the dutiable value of the merchandise, and, not being

conclusive, is subject to review [by the circuit court] under the ex-

press provisions of section 19.

The question in this case has reference to the “ amount of du-

ties,” and is therefore reviewable, under sections 14 and 15 of the

act of June 10, 1890, by the Board of General Appraisers and by the

circuit court. The amount of duties liquidated at the proclaimed

value of the rupee would have been less than the amount liquidated

at the exchange value. The Klingenberg Case is not an authority

upon the proposition that where the Collector declines to accept

the proclaimed value of a foreign standard coin, and adopts an-

other standard, thereby increasing the amount of duties upon im-

ported merchandise, his action is not the subject of review,

under the act of 1890. Our conclusion is that the Board of Gen-

eral Appraisers and this court have jurisdiction, and that the

decision of the board reversing the action of the Collector should

be affirmed. The decision of the Board of General Appraisers is

affirmed.

The General Appraisers’ first decision in Beebe's

case (T. D., 21423—July 20, 1899.)

The invoices cover merchandise shipped from India, the cur-

rency of the invoice being made out in rupees. The entry was

RY ASPEN AI LLEL I TL IN Oe ee eS ee, ee | Saat

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made on October 18, 1898. Appended to the invoices is a consular

certificate, bearing date of August 11, 1898, which reads as follows:

I further certify that the exchange value of the rupee, in which

currency the annexed invoice of merchandise is made out, is at thig

date 32.11 cents estimated in United States gold dollars.

On February 17, 1899, the Collector liquidated the entry upon a

basis of the exchange value of the rupee rated at 32.11 cents, as

certified by the Consul. The protest claims that the rupee should

have been taken at the value estimated by the Director of the

Mint, and promulgated by the Secretary of the Treasury for the

quarter of the year in which the goods were exported.

On July 1, 1898, the Secretary of the Treasury, pursuant to the

provisions of section 25 of the tariff act of August 28, 1894, issued

his proclamation (Circular 124, S. 19591) proclaiming the values of

foreign coins, as estimated by the Director of the Mint, in terms

of the money of account of the United States. The value of the

rupee, in terms of the United States gold dollar, was stated to be

$0.199. Appended to these estimates is a footnote, signed by the

Director of the Mint, as follows: “ Value of the rupee to be deter-

mined by consular certificate.”

The controversy questions involved in this protest have been

settled by the circuit court for the district of Massachusetts, in the

case of the United States v. Newhall & Co. (91 Fed. Rep., 525), de-

cided by Judge Coir January 7, 1899, affirming an unreported

decision of the Board. After elaborate argument, the following

propositions were settled in that case:

(1) That the action of the Collector in declining to liquidate the

duties upon the basis of the proclaimed value of the silver rupee,

and in adopting another standard based on the consular certificate,

which liquidation resulted in increasing the amount of duty on the

imported merchandise, does not relate to a disputed appraisement,

but to the “ amount of duties” involved, and that under the pro-

visions of the customs administrative act of June 10, 1890, sections

14 and 15, such action was reviewable on the protest of the im-

porter equally by the Board of General Appraisers and the circuit

court; in other words, that the Board of Classification of United

States General Appraisers had full jurisdiction of the questions in-

volved. To alike effect in the case of Wood v. United States (72

i ——————— Pee TROLS SAL oe ANA On

Fed. Rep., 254), commenting on and construing United States v.

Klingenberg (153 U. S., 93).

(2) That, in reducing the foreign standard coins to United States

currency for the assessment of customs duties, the basis in all cases

js required to be the value of the pure metal in such coins, and not

their exchange value, such as was certified to by the Consul.

(3) That this long-established rule was not changed in any

manner or abrogated by the proviso to section 25 of the tariff act

of 1894 as to reliquidations in cases where it appears that the value

of the foreign money specified in an invoice had varied at the date

of the invoice more than 10 per cent from that proclaimed by the

Secretary of the Treasury for the given quarter.

(4) That the Collector of Customs are not authorized to depart

from such proclaimed value and adopt the exchange value shown by

the consular certificate, for the purpose of assessing duties, merely

because such consular certificate accompanying an invoice shows

the current exchange value of the money of the invoice to be more

than 10 per cent greater or less than the proclaimed value for the

given quarter.

It necessarily follows from the doctrine of this decision that the

annotation made by the Director of the Mint, namely, “ The value

of the rupee to be determined by consular certificate,” was un-

authorized by the terms of said section 25, as construed by the

court. It would seem, moreover, that the Director of the Mint is

required by law to estimate the value of such coins, and could not

delegate to any other person the authority thus vested in him.

This case is clearly distinguishable from that class of cases

represented by Board decision in re Noon Bag Company (G. A.

4288), in which a liquidation had been lawfully made by the Sec-

retary of the Treasury pursuant to the authority conferred by

section 25 of the tariff act of 1894, and of which the Board declines

to take jurisdiction for the reasons stated in its decision.

Following the principles above cited, as enunciated in the de-

cision of the circuit court in the Newhall case (supra), the protest

is sustained, and the Collector’s decision reversed, with instructions

to reliquidate the entry accordingly, in the event of no appeal being

taken from this decision by either the Secretary of the Treasury or

the Collector of Customs at Boston in the time and manner pre-

scribed by law.

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The U. S. Circuit Court in Beebe’s case (103 Fed.

Rep., 785—August 27, 1900).

Cott, Circuit Judge. This petition for review is governed b

the principles laid down in U. 8. v. Newhall & Co. (C. C.) 91 Fed,

525. In that case this court reached the following conclusions : (1)

In reducing foreign standard coins to United States currency, for

the assessment of duties, the basis in all cases is the value of the

pure metal in such coins, and not their exchange value. (2) This

long established rule was not changed by the proviso to section 95

of the tariff act of 1894 (28 Stat. 552) as to reliquidations where it

appeared that the value of the foreign money specified in an invoice

had varied at the time of the invoice more than 10 per cent. from

that proclaimed by the Secretary of the Treasury for that quarter,

(3) A Collector is not authorized, because the consular certificate

accompanying an invoice shows the current exchange value of the

money of the invoice to be more than 10 per cent. greater or less

than the proclaimed value for the quarter, to depart from such pro-

claimed value, and adopt, for the purpose of assessing the duty, the

exchange value shown by the certificate. (4) The action of a Col-

lector in declining to accept the proclaimed value of a foreign stand-

ard coin, and in adopting another standard, thereby increasing the

amount of duty on imported merchandise, does not relate to a dis-

puted appraisement, but to the amount of duties; and under Cus-

toms Administrative Act June 10, 1890, §§ 14, 15, is reviewable, on

the protest of the importer, by the Board of General Appraisers and

the circuit court.

The present case presents the same state of facts as U.S. y.

Newhall & Co., except in two particulars :

First. To the estimate of the pure-metal value of foreign coins,

including the rupee, in United States money, by the Director of the

Mint, as proclaimed by the Secretary of the Treasury on J uly 1, 1898,

was appended the following note: “ Value of the rupee to be deter-

mined by consular certificate.” This annotation was clearly unau-

thorized and void under section 25 of the tariff act of 1894, as con-

strued by the court in U. 8. v. Newhall & Co.

Second. The Secretary of the Treasury wrote a letter to the Col-

lector, approving his action in liquidating the entry on the basis of

Z By

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the exchange value of the rupee, as certified by the United States

Consul in the invoice, as follows:

“ Wasuinoton, D. C., March 31, 1899.

“ Collector of Customs, Boston, Mass.—Sir: The department is

in receipt of your letter of the 20th ultimo, transmitting the follow-

ing described protest against your action in estimating the value of

the India rupee in certain importations from Madras, India, on the

basis of the values shown in the U, 8. consular certificates attached

to the invoices : Protest 111, of Messrs. Lucius Beebe & Sons, dated

Boston, Feb. 17, 1899; importation, 27 bales of tanned goat skins,

per Columbian, Oct. 18, 1898; entry liquidated Fed. 17, 1899. You

submit the invoices, Nos. 1,610 and 1,611, dated Madras, India,

August 11 and September 1, 1898, respectively, for the inspection

of the department, and call attention to the fact that the U.S. con-

sular certificates attached thereto state that the exchange value of

the rupee, in which currency the said invoices are made out, was, at

the date of shipment, 32.11 cents, estimated in U.S. gold dollars, —

and that inasmuch as said valuation is more than ten per centum ~

greater than the value of the India rupee as estimated by the Direc- f

tor of the Mint for the quarter covering said shipment, you have, —

following department’s rulings, synopses 17,766 and 18,110, as-

sessed duties on the basis of the valuation of the India rupee as —

certified by the U. S. Consul on said invoices. In reply, have to ©

inform you that from an inspection of the invoices, and of the U. S.

consular certificates attached thereto, the department is satisfied —

that the correct and true value of the India rupee was, at the date ~

of shipmeut or the said merchandise, in fact more than ten per —

centum greater than that estimated by the Director of the Mint for

the quarter covering said shipments. Your action in liquidating

the entry on the basis of this higher valuation for the India rupee

is therefore hereby approved, under the authority conferred upon

the aati of the Treasury by section 25 of the act of August 28,

1894.”

nr Set

The consular certificate bearing the date of August 11, 1898,

reads :

“T further certify that the exchange value of the rupee, in which

currency the annexed invoice of merchandise is made out, is at this

date 32.11 cents, estimated in United States gold dollars.”

The Collector liquidated the entry February 17, 1899. The entry

bears this stamp:

“Custom House, Boston, February 17, 1899. Liquidated.”

ee ay

The proviso in section 25 is as follows :

“The Secretary of the Treasury may order the reliquidation of

any entry at a different value, whenever satisfactory evidence shall

be produced to him showing that the value in United States cur-

rency of the foreigo money spanisa? ix dike invoice was, at the date

i of certification, at least ten per centum more or less than the value

i proclaimed during the quarter in which the consular certification

| occurred,”

‘ The contention of the government is that the approval by the

| Secretary of the Treasury in his letter of March 31, 1899, of the

action of the Collector was a reliquidation of the entry under this

proviso, and that such reliquidation is conclusive, and not subject

to review by the Board of General Appraisers or by the circuit court,

The proviso says that ‘the Secretary of the Treasury may order the

_ reliquidation of any entry at a different value.” If we are to give

any signification to the words “ reliquidation” and “ different

__ Value,” they mean, in connection with the preceding part of the sec-

tion, that there must have been a liquidation of the entry at the

proclaimed value before the Secretary can direct a reliquidation at

a different value. We do not find in this case any order of the

Secretary directing a reliquidation of the entry ata different value

from the proclaimed value, nor any reliquidation by the Collector.

The record discloses a single liquidation by the Collector upon a

basis not in conformity with law, as held by this court in U.S. y,

Newhall & Co., and an approval of such action by the Secretary.

To hold such approval of the Collector’s liquidation based upon a

wrong principle, a reliquidation under the proviso of section 25

would, in my opinion, do violence to the express language of the

statute. ‘To adopt such a construction is to declare that the Collec-

tor, in the first instance, may liquidate an entry, not upon the pro-

claimed value in pure metal of the foreign coin as required by sec-

tion 25, but upon any standard of value he chooses to adopt, and

that such liquidation is lawful and binding, provided the Secretary

of the Treasury ratifies his action under the authority conferred by

the proviso. I am unable to assent to the able and ingenious argu-

ment of the government’s counsel in support of this interpretation

of the statute. Whether this case is reviewable by the Board of

General Appraisers or by the circuit court depends upon whether

there has been a reliquidation under the proviso of section 25. A

valid reliquidation under this proviso would seem to be as conclusive

as the proclaimed value under the preceding part of the section.

a PO PEL te PR AE IAS

mane ALS REM ore a

3K ;

0 24

Cramer v. Arthur, 102 U. 8. 612, 619, 26 L. Ed. 259; Hadden v.

Merritt, 115 U. 8. 25, 27, 29 L. Ed. 833; U. 8. v. Klingenberg, 153

U. S. 93, 99, 14 Sup. Ct. 790, 38 L. Ed. 647. The decision of the

Board of General Appraisers is affirmed.

The court makes the following findings of fact :

(1) The importation in this case consists of 27 bales of tanned

goat skins, shipped to Boston, Mass., from Madras, India. Said

merchandise was included in two invoices, one dated August ia

1898, for 13 bales of skins, and the second dated August 31, 1898,

for 14 bales of skins.

(2) The invoice dated August 11th showed a total value for the

merchandise therein referred to, including certain nondutiable

charges, amounting to rupees (silver) 290./6./4, as follows: Rupees

(silver) 9,187. /15. /4.

(3) The invoice dated August 31st showed a total value for mer-

chandise therein referred to, including certain nondutiable charges,

amounting to rupees (silver) 337. /15./5, as follows: Rupees (silver)

9,150./5./10.

(4) The total value of the merchandise included in both of said

invoices, including nondutiable charges, the total of which is rupees

628./5./9, amounts to: Rupees (silver ) 18,338. /5./2.

(5) Said 27 bales of goat skins were entered for consumption by

Lucius Beebe & Sons, the respondents and owners of said merchan-

dise, in the port of Boston and Charlestown, October 18, 1898.

After deducting from the invoice value the sum of rupees 628. /5./9,

for nondutiable charges, the dutiable value, as ascertained at the

custom house, Boston, is as follows: Rupees (silver) 17,709./15./5,

and also in dollars $5,687, reduced at the rate of 32.11 cents per

rupee. Duties were paid by the respondents on October 19, 1898,

at the rate of 10 per cent. ad valorem on said $5,687.

(6) On July 1, 1898, the Secretary of the Treasury issued a cir-

cular, the material parts of which are as follows :

re —

“Value of Foreign Coins. 1898.

“ Department Circular No. 124.

“Treasury Department, Bureau of the Mint.

““ WasaineTon, D. C., July 1, 1898,

i “ Hon. Lyman J. Gage, og of the Treasury—Sir : In par-

_ —-Buance of the provisions of section 25 of the act of August 28, 1894,

_ I present in the following table an estimate of the values of the

- standard coins of the nations of the world :

Country. Standard. Mon. Value in Coins

} Unit. terms of

d U. S. gold

x dollars.

- India. Silver. Rupee. 199 Gold, mohur

} (7.105)

3 Silver ; rupee

3 and divisions.

» x * * * * * *

3 * (Appended to the estimates is the following footnote :)

4 sh 8 of the rupee to be determined by consular certificate.

J “ Respectfully yours,

: “ B. F. Burxer, Acting Director of the Mint.

“Treasury Department. Office of the Secretary.

“ WasnineTon, D. C., July 1, 1898.

“The foregoing estimate by the Director of the Mint, of the

values of foreign coins, I hereby proclaim to be the values of such

coins in terms of the money of account of the United States, to be

followed in estimating the value of all foreign merchandise exported

to the United States on or after July 1, 1898, expressed in any of

such metallic currencies.

“L. G. Gaag, Secretary of the Treasury.”

(7) Attached to the invoice of August 11 was the following con-

sular certificate, dated August 11, 1898 :

2 “TI further certify that the exchange value of the rapee, in which

- _ eurrency the annexed notice of merchandise is made out, is at this

- date 32.11 cents, estimated in United States gold dollars.”

i (8) Attached to the invoice of August 31st was a similar consu-

lar certificate, under date of September Ist.

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Sees & ae ees ee a ODER eR NBE

(9) The entry was liquidated by the Collector on February 17,

1899, at the exchange value of the rupee, namely, 32.11 cents, as

certified by the Consul. Thereafter, on the same day, the protest

and notice of appeal from said liquidation was duly filed by the

respondents.

(10) Reduced into United States money at the rate proclaimed

July 1, 1898, namely, 19.9 cents, the entered value of said merchan-

dise, namely, rupees (silver) 17,709. /15./5, would amount to $3,524,

and the amount of duties payable thereon at 10 per cent. ad valorem

would amount to $352.40.

Under the facts, the court makes the following rulings of law :

(1) The Court rules that the note appearing at the foot of the

quarterly estimate of coin value, on July 1, 1898, “ The value of the

rupee to be determined by consular certificate,” gave no right, power,

or authority to the Collector to liquidate the entry in question at the

value of the rupee stated by the United States Acting Consul in the

certificates attached to the two invoices.

(2) The Collector, in adopting the exchange value of the rupee as

certified by the United States Consul, and in not adopting the pro-

claimed value for the rupee, in liquidating the entry in question,

acted illegally, and the Board of General Appraisers had jurisdiction

to order a reliquidation at the proclaimed value.

(3) The decision of the Board of General Appraisers must be sus-

tained unless it is shown that there has been a valid reliquidation

of the entry in question under the authority conferred upon the

Secretary of the Treasury by the proviso of section 25 of the tariff

act of August 28, 1894.

(4) The court rules that there is no evidence of the reliquidation

of this entry, and that said entry has never been reliquidated.

(5) The court rules that the letter of the Assistant Secretary of

the Treasury, dated March 31, 1899, does not contain an order for

the reliquidation of the entry in question, nor does it amount to a

reliquidation of the same.

RE BREEDER ILLES IG

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The U. S. Circuit Court of Appeals in the same

case (106 Fed. Rep., 75—January 16, 1901).

Putnam, Circuit Judge. This is an appeal by the United States

against importers, arising under section 25 of the tariff act of 1894

c. 349 (28 Stat. 552), as follows:

“Sec. 25. That the value of foreign coin as expressed in the

money of account of the United States shall be that of the pure

metal of such coin of standard value ; and the values of the standard

coins in circulation of the various nations of the world shall be eg.

timated quarterly by the Director of the Mint, and be proclaimed by

the Secretary of the Treasury immediately after the passage of this

act, and thereafter quarterly on the first day of January, April, July,

and October in each year. ‘And the values so proclaimed shall be

followed in estimating the value of all foreign merchandise exported

to the United States during the quarter for which the value is pro.

claimed, and the date of the consular certification of any invoice

shall, for the purposes of this section, be considered the date of ex.

portation: provided, that the Secretary of the Treasury may order

the reliquidation of any entry at a different value, whenever satis-

factory evidence shall be produced to him showing that the value in

United States currency of the foreign money specified in the invoice

was, at the date of certification, at least ten per centum more or less

than the value proclaimed during the quarter in which the consular

certification occurred.”

The proceeding is under sections 14 and 15 of the customs admin-

istrative act, approved on June 10, 1890 (26 Stat. 137, 138). The

invoice was in silver rupees, and the United States claim that the

proviso which concludes section 25 of the act of 1894 applies to

the case. Due entry having been made by the importers, the Col-

lector, instead of computing the rupee in accordance with the value

proclaimed pursuant to the general terms of that section, liquidated

the invoice by estimating it in the manner which it is alleged is per-

mitted to the Secretary of the Treasury on reliquidation according

to its proviso. Thereupon, on February 17, 1899, the importers paid

the duties, and seasonably and properly protested on the ground that

the Collector had assessed the ad valorem duty provided by law

by valuing the rupee of the invoice at a rate or value other and

more than that estimated and determined by the Director of the

United States Mint and proclaimed by the Secretary of the Treasury.

cri ERIE ator ‘ an aati . " TG Are OND he DD rca cere

They also claimed in their protest that there should be refunded to

them all excessive duties paid in accordance with the liquidation.

The Board of General Appraisers on July 20, 1899, reviewed the case,

and entered an order as follows : “ The protest is sustained, and the

Collector's decision reversed, with instructions to reliquidate the

entry accordingly.” This was in accordance with section 14 of the

act approved on June 10, 1890, which provides that a decision of

the Board of General Appraisers shall be “transmitted to the proper

Collector, or person acting as such, who shall liquidate the entry ac-

cordingly,” except in case of an appeal. The United States season-

ably, by their petition, applied to the circuit court as provided in sec-

tion 15 of the last-named statute. That court entered a judgment

as follows: “The decision of the Board of the United States General

Appraisers is hereby affirmed, and petition dismissed.” From this

judgment the United States seasonably took this appeal. No appeal

was taken by the importers.

Subsequently to the protest, on March 31,1899, the Secretary of

the Treasury wrote the Collector, among other things, as follows:

“In reply, I have to inform you that from an inspection of the

invoices, j of the U. S. consular certificates attached thereto, the

department is satisfied that the correct and true value of the India

rupee was, at the date of shipment of the said merchandise, in fact

more than ten per centum greater than that estimated by the Direc-

tor of the Mint for the quarter covering said shipments. Your

action in liquidating the entry on the basis of this higher valuation

for the India rupee is, therefore, hereby approved, under the au-

thority conferred upon the Secretary of the treasury by section 25

of the act of Aug. 28, 1894.”

The United States claim that this communication constituted a

reliquidation as provided in section 25 of the act of 1894, and that

it operated to validate the prior proceedings by the Collector, or, at

least, that it became effective to defeat the protest. That communi-

cation was not before the General Appraisers when they made their

decision, but it was properly returned into the circuit court as “ fur-

ther evidence,” as provided in section 15 of the act of 1890.

The parties have fully argued before us certain substantial issues

which they desire to raise with reference to the construction and

application of the proviso in section 25 of the act of 1894; but we

are unable to consider them, because they are not properly before

us on this record. It is impossible for the court to foresee all the

consequences involved in the right of an importer to have a liquida-

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tion by the Collector in accordance with the proclaimed value of

foreign coins, as directed in the general terms of the statute in ques-

tion, or to foresee how far the rights of the United States and of

importers may be involved in unauthorized departures from the

precise form of proceeding which the law requires in this respect,

Whatever may be the powers of the Secretary of the Treasury, ang

whatever effect may be given to his reliquidation in accordance with

the proviso, it is the legal right of the importer to have his invoice

properly liquidated by the collector in the first instance. This right

became fixed in the present case by the protest filed by the importers

before any action was taken by the Secretary of the Treasury, and

it cannot be taken away by any such action subsequent in date to

the irregular proceedings at the port of importation. The decision

of the Board of Genera] Appraisers, the judgment of the circuit court,

and the fact that only the United States have appealed, if the im-

porters could also have done so, leave nothing to be considered b

this court except the action of that board in directing the Collector

to liquidate the entry in accordance with its order. What proceed-

ings should follow that liquidation, and what may be the effect of

those proceedings, we have not undertaken to determine, for the rea-

sons we have already stated. We must affirm the judgment of the

circuit court, but, in order that the effect of the affirmation shall

not be misunderstood or misapplied, we deem it proper to make it

clear that the result of this appeal is without prejudice to the ulti-

mate rights of the parties.

The judgment of the circuit court is affirmed, without prejudice

to the right of either party to proceed further, after a proper liquida-

tion by the Collector of Customs at the port of Boston, in accordance

with section 25 of the tariff act of August, 1894, including the pro-

viso therein, or in accordance with any other direction of law ap-

plicable to the circumstances of the case, if there be any such right.

The U. S. Supreme Court denies the Govern-

ment’s prayer for review of the last above (October

term, 1900—March 11, 1901).

The General Appraisers’ second decision in Beebe’s

case (T. D., 23384—November 26, 1901).

The protest in this case involves the construction of the proviso

to section 25 of the tariff act of August 28, 1894 (ch. 349, 28 Stat.,

p. 552), and®especially so far as it confers upon the Secretary of the

Treasury the power to reliquidate an entry at a different value for

the foreign coin of the invoice from that ascertained by the Direc-

tor of the Mint, on the production of evidence satisfactory to the

Secretary, showing the change in value of the Indian rupee (which

is the foreign money specified in the invoice) of at least 10 per

cent. more or less than the value proclaimed for the quarter in

which the consular certification occurred.

The facts of the case have been agreed on ia writing, and as to

these there is no room for dispute. The merchandise consists of

97 bales of skins, included in two separate invoices, which were im-

ported and entered at the port of Boston for consumption on

October 18, 1898, by Lucius Beebe & Sons, who are the protestants.

The metal value of the silver rupee of India was ascertained by the

Director of the Mint to be $0.199, measured in terms of the United

States gold dollar, and this value was proclaimed by the Secretary

of the Treasury July 1, 1898, in Department Circular No. 124 (T. D.

19591), relating to the value of foreign coin. The consular agent

of the United States at Madras, India, attached the following certifi-

cate to one of the invoices, under date of August 11, 1898:

I further certify that the exchange value of the rupee, in which

currency the annexed invoice of merchandise is made out, is at this

date 32.11 cents, stated in United States gold dollars.

A similar certificate was attached to the other invoice, dated

September 1, 1898.

On July 23, 1901, in pursuance of a judgment of the United

States circuit court of appeals for the first circuit, entered July 16,

1901 (United States v. Beebe, 106 Fed. Rep., 75; 45 C. C. A., 230),

the Collector at the port of Boston liquidated the amount of duties

payable under said entry at the value of 19.9 cents, for each rupee,

as proclaimed in the circular issued by the Treasury Department

above cited.

RAY ERS —

Sarelanesdiseaidcieciieleliaiiniaiecaessteaadalie teatime a

On July 25, 1901, the Secretary of the Treasury wrote a letter to

the Collector, in which, after referring to the fact that the entry in

question had been liquidated on the basis of the value of the rupee

as proclaimed by the Secretary of the Treasury for the quarter

covering the shipment, namely, 19.9 cents, he proceeded to instruct

said Collector as follows :

In this regard, I have to inform you that satisfactory evidence

has been produced to the Secretary of the Treasury showing that

the value in United States currency of the foreign money of the in.

voice, namely, the rupee of India, was 32.11 cents at the date of

certification, which is 10 per cent more than the value proclaimed

during the quarter in which the consular certification occurred,

In view of the fact stated, you are hereby directed to reliquidate

the entry hereinbefore mentioned on the basis of this latter value,

under the authority conferred upon the Secretary of the Treasury

by the proviso to section 25 of the act of August 28, 1894.

The entry and other papers submitted are herewith returned.

Respectfully,

O. L. SpauLpine, Assistant Secretary.

PAE AT PRA eo ae:

The agreed statement of facts in this case contains the following

further stipulation :

XIV.

5 Ua mile ba 8 cae five gine’

Rap a0 I PD, i

The order for reliquidation set forth in the letter in the preced-

ing paragraph was not based upon any difference between the pure

metal value of Indian rupees on August 11, 1898, and September 1,

1898, the dates, respectively, of consular certification of said in-

voices, and the value for said rupee of India contained in the Secre-

2 tary of the Treasury’s proclamation of value for the quarter com-

% mencing July 1, 1898, the quarter in which these exportations oc-

x curred; and the pure metal value of said rupees in terms of

3 United States gold dollars on each of said dates of consular certifi-

% cation was substantially 19.9 cents, being the value thereof con-

i tained in said proclamation. And the value of 32.11 cents for the

rupees of said invoices set forth in the letter in Paragraph XIII

was not intended to bethe pure metal value of such rupees on said

dates of certification.

eas Oe

XV.

In accordance with said letter, dated July 25, 1901, on the 26th

day of July, 1901, said Collector reliquidated the duty on said goods

by taking the rupees of said invoice at the value of 32.11 cents.

The amount of duty thus assessed was $568.70.

Against this reliquidation, thus admitted to be based upon the

exchange value of the rupee (32.11 cents) and not upon the metal

value (19.9 cents), the said Lucius Beebe & Sons duly and season-

ably protested, claiming that the reliquidation ordered to be made

by the Secretary of the Treasury under the terms of the proviso of

said section 25 of the tariff act of 1894 was unauthorized by law and

pull and void, inasmuch as the only authority conferred by said

proviso upon the said Secretary was to reliquidate said entry upon

the basis of the metal value of said rupee, and not upon the ex-

change value of said coin under the conditions mentioned in said

section, under the authority of which the reliquidatiou was ordered.

It was further claimed that the right of the Collector to reliqui-

date this entry, either of his own motion or under instructions

from the Secretary of the Treasury, was limited to one year from

| the date of entry, in the absence of fraud and in the absence of

| protest, as provided by section 21 of the act of June 22, 1874, which

reads as follows (see 18 U. S. Stat., p. 190):

That whenever any goods, wares, and merchandise shall have

been entered and passed free of duty, and whenever duties upon

any imported goods, wares, and merchandise shall have been liqui-

dated and paid, and such goods, wares, and merchandise shall have

been delivered to the owner, importer, agent, or consignee, such

entry and passage free of duty and such settlement of duties shall,

after the expiration of one year from the time of entry, in the ab-

sence of fraud, and in the absence of protest by the owner, importer,

agent, or consignee, be final and conclusive upon all parties.

- ANA OR,

SUR gLE YS

ayy

The proper construction of said section 25 of the act of August

98, 1894, has been the subject of protracted litigation in the courts

for many years past. In United States v. Newhall & Co. (91 Fed.

Rep., 525), decided by Judge Cott, January 7, 1899, affirming an

unreported decision of this Board, it was held that, in reducing the

foreign standard coins of United States currency for the assessment

of customs duties, the basis in all cases is required to be the value

of the pure metal in such coins, and not their exchange value, such

as was certified by the Consul and adopted by the Secretary of the

Treasury in this case.

It was further held that, inasmuch as a liquidation made by the

Collector in that case adopting an illegal valuation of the silver

rupee resulted in an increase of the amount of duty on imported

merchandise, his action was reviewable on the protest of the im-

porter equally by the Board of General Appraisers and the courts.

tb PeBe eh cer ‘ ‘ Arg oARO.

In other words, the court decided that the Board of Classification

of United States General Appraisers had full jurisdiction of the

questions involved under the provisions of section 14 of the customs

administrative act of June 10, 1890.

The above decision was followed by this Board in the case of

Lucius Beebe & Sons (G. A. 4498) decided July 20, 1899, covering

the merchandise now under consideration. This decision was

affirmed on appeal to the circuit court for the district of Massachu-

setts on August 27, 1900, in United States v. Beebe (103 Fed. Rep.,

785). That court, in an elaborate opinion by Judge Cox1, fully re-

affirmed the doctrine announced in the Newhall case, and held that

the'Secretary of the Treasury had no authority to direct a liquidation

of an entry for customs duties upon the basis of the exchange value of

the foreign coin, as declared by the consular certificate ; and, further,

that the question of reviewing the action of the Collector was one

falling within the jurisdiction of the Board of General Appraisers

and of the courts.

It was admitted, however, by the court in its opinion that “a

valid reliquidation under this proviso (of said section 25) would

seem to be as conclusive as the proclaimed value under the preced-

ing part of the section,” thus affirming the view taken by this Board

in in re Noon Bag Company (G. A. 4288), where the Board declined

jurisdiction of a protest against a reliquidation of an entry which

appeared, so far as shown by the record, to have been lawfully made

by the Secretary of the Treasury pursuant to the authority con-

ferred on him by said section 25 of the tariff act of 1894.

On appeal being taken from the decision of the circuit court,

both the decisions of the court and of this Board were affirmed by

the circuit court of appeals in United States v. Beebe (106 Fed.

Rep., 75; 45 C. C. A., 230) ; and a petition for a writ of certiorari

to review the decision of the circuit court of appeals was denied by

the United States Supreme Court. (See 180 U.S., 640; 21 Sup. Ct.

Rep., 922.)

The following language was used by Judge Putvam, in the con-

clusion of the opinion of the cireuit court of appeals above cited:

The judgment of the circuit court is affirmed without prejudice

to the right of either party to proceed further, after a proper liqui-

dation by the Collector of Customs at the port of Boston, in accord-

ance with section 25 of the tariff act of August, 1894, including the

proviso therein, or in accordance with any other direction of law

applicable to the circumstances of the case, if there be any such

tight.

% SDS at ers OR a a ae ~ .

: oe A PLE Are & *

This must be construed not to bar, or in any manner. interfere

with the right of the Secretary of the Treasury to reliquidate the

entry in question on satisfactory evidence that the metal value of

the rupee exceeded by 10 per cent the proclaimed value. It can

not be construed to authorize a reliquidation upon the basis of any

other value than that decided by the court to be the legal value of

the foreign coin in question. It necessarily follows from what we

have said, in the light of these numerous court decisions, that the

action of the Secretary of the Treasury was not in accordance with

the authority conferred on him by law.

In justification of the action of the Secretary of the Treasury, it

is contended by the counsel for the Government that the word

“value,” as used in the proviso of said section 25, may have a

different meaning from the same word as used in the section on

which it is engrafted.

There are several insuperable objections to this view. The rule

is well settled that the proper function of a proviso being to restrict

an enacting clause, general in its scope and language, “it is to be

strictly construed, and limited to the objects fairly within its terms.”

(Bragg v. Clark, 50 Ala., 363 ; Sutherland on Stat. Con., sec. 223.)

So it is equally well settled that the same word appearing in differ-

ent parts of a law presumptively is intended to be used in the same

sense, unless a different intent be shown by the context of the par-

ticular section or paragraph under consideration ; nor, in general, is

it permissible to “ assign different meanings to the same words on

the ground of a supposed general intention of the legislature.”

(Endlich on Inter. of Stat., sec. 41 and 388.)

In view of these principles, it can scarcely be supposed that

Congress intended to confer upon the Secretary of the Treasury the

authority to reliquidate an entry upon any other basis than the

metal value of foreign coins, as mentioned in the body of said sec-

tion. Such a construction would be in clear violation of the funda-

mental rule that every part of a statute is to be construed in connec-

tion with every other part, and that all of its words and phrases

must be construed, if possible, harmoniously, so as to accomplish

the legislative intent.

The only further question for consideration is whether this

Board, whose jurisdiction has been repeatedly held to be coexten-

sive with that of the circuit court under the provisions of sections

14 and 15 of the customs administrative act, possesses jurisdiction

to review and correct the action of the Collector, based, as has been

AUS RRA Tee

Sin cA RA OL AT. CN BO SRRGIE ONES i

shown, upon the order of the Secretary of the Treasury. (United

States v. Klingenberg, 153 U. S., 93 14 Sup. Ct. Rep., 799; Wood v,

United States, 72 Fed. Rep., 254,18 C.C.A., 553; United States

v. E. L. Goodsell Company, 91 Fed. Rep., 519, 32 C. ©. A., 661,

affirming in re Goodsell, G. A. 3880.)

The question is undoubtedly one involving the increased amount

of duty imposed upon imported merchandise by the action of the

Secretary ; and, the facts being undisputed, questions of law only

are involved. It is contended by counsel for the Government that

we are without jurisdiction to correct the error of law npon which

the Collector’s and Secretary’s action is shown to have been based,

because the action of the Secretary in ordering a reliquidation by

virtue of the authority conferred upon him by section 25 is con

clusive, and whether correct or incorrect is not subject to judicial

review. In this view of the case, we are unable to concur. While

we admit the general doctrine that, when the law has confided to 4

special tribunal the authority to decide certain matters arising in

the course of duties, the decision of that tribunal, within the scope

of its authority, is conclusive, yet we do not overlook the fact that

there are certain well-settled exceptions to such a rule. These ex-

ceptious were stated by Mr. Justice F1re.p, in speaking of the de-

cisions of the Land Office, a bureau of the Department of the In-

terior, to be as follows:

The officers of the Land Department are specially designated by

law to receive, consider, and pass upon proofs presented with re-

spect to settlements upon the public lands, with a view to secure

rights of pre-emption. If they err in the construction of the law

applicable to any case, or if fraud is practised upon them, or they

themselves are chargeable with fraudulent practices, their rulings

may be reviewed and annulled by the courts when a controversy

arises between private parties founded upon their decisions; but,

for mere errors of judgment upon the weight of evidence in a con-

tested case before them, the only remedy is by appeal from one

officer to another of the same Sepastincad, (Shepley v. Cowan, 91

U. S., 340.)

The same doctrine was forcibly stated by Mr. Justice MILLER in

Johnson v. Towsley (13 Wall, 72), where, after setting forth the rule

we have just mentioned as to special tribunals, he added (page 84):

No reason is perceived why the action of the Land Office should

constitute an exception to this principle.

: ig

d ™

oo!

a PABA aie IE Ty AEA RE ARE we TS na et aE N ON wee

And both of these cases were approved by the Supreme Court in

Moore v. Robbins (96 U. S., 530, 535). See also Shaw v. Kellogg,

170 U.S., 312, 18 Sup. Ct. Rep., 632; Corporation of Catholic

Bishop v.,Gibbons, 158 U. S., 155,15 Sup. Ct. Rep., 779; Wisconsin

Central Railroad Company v. Forsythe, 159 U. S., 46, 61 ; Germania

Iron Company v. James, 89 Fed. Rep., 811, 32 C. C. A., 348; Puget

Mill Company v. Brown, 54 Fed. Rep., 987; Railroad Company v.

Colburn, 164 U. S., 383, 17 Sup. Ct. Rep., 98; and note on page 40

of volume 22 C. C. A. Rep., containing a full review of the cases.)

Alike rule was applied to a decision of the Patent Office

(another bureau of the Interior Department), where the Commissioner

of Patents, under an erroneous view of the law, no question of fact

being involved, had refused, under the instructions of his superior,

the Secretary of the Interior, to issue a patent to those applying for

it. (Butterworth v. Hoe, 112 U. S., 50.)

The same principle has frequently been extended; to decisions of

‘

BLEEP SN ME NS

appraisement tribunals, and particularly to decisions of the Board

of General Appraisers, sitting as an appraisement board under the :

provisions of section 13 of the customs administrative act of June 10, ;

1890, although that section expressly enacts that the decision of 3

the Board “shall be final and conclusive as to the dutiable value” 4

ofimported merchandise. But, as observed by Chief Justice Futter,

“while the general rule is that the valuation is conclusive upon all if

parties, nevertheless the appraisement is subject to be impeached, :

where the Appraiser or Collector has proceeded on a wrong principle,

contrary to law, or has transcended the powers conferred by statute.”

(United States v. Passavant, 169 U. S., 209; 18 Sup. Ct. Rep., 219,

221, citing numerous cases.)

It was upon a like principle that the Board of Classification

recently assumed jurisdiction of a case involving the legality of the

action of a Collector of Customs in assessing upon certain sugar im-

ported from Russia, a countervailing duty under section 5 of the

tariff act of July 24, 1897, which provides that whenever any

country shall pay or bestow any bounty or grant upon the expor-

tation of any article, there shall be levied an additional duty equal

to “the net amount of such bounty or grant.” Thestatute expressly

enacts that ‘the net amount of all such bounties or grants shall be

from time to time ascertained, determined, and declared by the

Secretary of the Treasury,” whu is empowered to make all needful

regulations for the collection of such additional duties. After

observing that, if in fact any bounty or grant was bestowed, the

FOE AMRIT SEN RD ANS RES IRR oD a

past RRR

2 sid el Sieg Se

“Ria

MAP DAG AN PRs PLR ALLOA OGLE NAPE IE LAI ad

Secretary’s finding as to its amount, “ being made in pursuance of g

special statutory authority, would be quite as conclusive on thig

Board and the courts as the finding of the value of foreign coin by

the Director of the Mint, under the provisions of section 25 of the

tariff act of 1894,” the Board said (see in re Downs, G. A. 4912);

It is conceded, however, that the decision of the Secretary as to

whether the laws of Russia do, in fact, bestow such a bounty or

grant, is reviewable by this Board, as it involves the construction of

the laws of Russia relating to the precise subject-matter covered b

said section above cited. The jurisdiction of the Board in this par-

ticular has been sustained by the United States circuit court of

appeals for the second circuit in the recent case of United States »,

os Brothers Company, decided February 8, 1901 (107 Fed. Rep.,

This decision of the Board has since been affirmed by the United

States Circuit court at Baltimore, per Morais, /. ; opinion delivered

in October last and not yet reported, the jurisdiction of the Board

not having been questioned.

As the facts which have been agreed upon by counsel make it

clear that the Secretary’s action was based entirely on an erroneous

view of the law, we entertain no doubt that this Board and the

courts have jurisdiction in the premises. The case of Ferry v.

United States (85 Fed. Rep., 550, which affirmed a principle adopted

by this Board in in re Rugiero, G. A. 1024; see also in re Levac,

G. A. 4830) in no way conflicts with the above view. The question

there involved was the abatement or refunding of duties paid on

merchandise which had been destroyed in whole or in part by acci-

dental fire or other casualty while in the custody of the Government,

and it was held that the jurisdiction of the Board of General Ap-

praisers did not extend to such cases, but that the provisions of

section 2984 of the Revised Statutes made the Secretary’s jurisdic-

tion exclusive. The subject-matter, it will be noted, was one hav-

ing no relations to the rate or amount of duty on imported merchan-

dise, within the scope of section 14 of the customs administrative act

of June 10, 1890, which creates and defines the jurisdiction of this

Board.

Our conclusion, therefore, is that the instructions of the Secre-

tary of the Treasury to the Collector of Customs at Boston, directing

that officer to reliquidate the entry of Lucius Beebe & Sons, on a

basis of 32.11 cents value for the Indian rupee, were based on an

erroneous view of the law as embodied in section 25 (with the

aoe Sieip SIAN ES teae Ne ar 8 i IA tenia . ‘

. 4 _—_ AE BATS NRE ST CERIN OS™

proviso thereof) of the tariff act of August 28, 1894, and that the

true construction of said section and proviso requires that, “ in re-

ducing the foreign standard coins to United States currency for the

assessment of customs duties, the basis in all cases is required to

be the value of the pure metal in such coins, and not their exchange

value,” as held by Judge Coir in Newhall’s case (‘11 Fed. Rep., 525),

and reaffirmed in Beebe’s case (103 Fed. Rep., 785), and again by

The construction given by the Treasury Department to any law

affecting its arrangements and concerns is certainly entitled to great

respect. Still, however, if it is not in conformity to the true in-

tendment and provisions of the law, it can not be permitted to con-

clude the judgment of a court of justice. The construction given

by any department of the Executive Government is necessarily ex

parte, without the benefit of an opposing argument, in a suit where

the very matter is in controversy ; and when the construction is

once given there is no opportunity to question or revise it by those

who are most interested in it as officers, deriving their salaries and

emoluments therefrom, for they can not bring the case to the test ofa

judicial decision. (Opinion of Story, J., in United States v. Dickson,

15 Peters, 141, 161; cited in United States ». Murphy, 32 Fed.

Rep., 376, 382.)

The act of the Secretary being unauthorized by law was neces-

sarily null and void, and afforded no validity whatever to the

action of the Collector, who was the Secretary’s agent for the reliqui-

dation of the entry upon an erroneous basis. So far as the record

is concerned, therefore, the reliquidation must be treated as that of

the Collector alone.

In this respect, the case under consideration differs from Board

decision in ve Noon Bag Company (G. A. 4288), where the record

failed to disclose that the Secretary had acted outside the authority

conferred on him by statute.

As to the contention made by the importers that the Govern-

ment’s right to reliquidate the entry was barred by the statute of

limitations prescribed by section 2] of the act of June 22, 1874,

above cited, it is only necessary to say that, while we strongly in-

cline to the view that the point is well taken, it is unnecessary that

we should base our decision upon that point, which we, therefore,

leave undecided.

The protest is sustained and the decision of the Collector re-

versud, with instructions to reliquidate the entry accordingly.

LEAR SEL RO oars |

: 8.

The U. S. Circuit Court in Beebe’s second case

(117 Fed. Rep., 670—September 4, 1902).

Cott, Circuit Judge. This is a second petition for review, relat.

ing to the same entry of merchandise, The decisions of the circuit

court of appeals and of the circuit court on the first petition are

found in 45 C, C. A, 230,106 Fed. 75, and 103 Fed. 785. While

the specific questions now presented may differ in form, the princi-

ples which underlie and control both these petitions were carefully

considered by this court in U.S. v. J. Allston Newhall & Co. (C, C)

91 Fed, 325, That case involved the construction of section 25 of

the tariff act of 1894, and especially the proviso thereof (28 Stat,

552); and this is true of both these petitions. In U. 8. v. J,

Allston Newhall & Co. this court said :

“This section, until we reach the proviso, is substantially a re-

enactment of the previous law. The contention of the government

rests upon the proposition that the word ‘ value’ in the proviso is

not limited to the value ‘of the pure metul,’ but extends to other

methods of valuation, never before adopted with respect to specified

foreign standard coins. To adopt this construction is to hold that

Congress intended to depart from the long-established rule, and to

introduce a new and uncertain mode of valuation in cases comi

within the terms of the proviso. The result is that the body of the

section provides one way, and one way only, for estimating the

value of standard coins, while the proviso covers other ways in con-

flict with former well-settled principles. Certainly, the court should

not adopt such a construction, if it be at all doubtful. To hold

that, where the value of the foreign coin during the quarter varies

less than ten per centum from the value proclaimed, the pure-metal

value is to govern, and that when it exceeds ten per centum the

Secretary of the Treasury may adopt any standard of valuation he

sees fit, based upon rate of exchange, trade conditions, or financial

reports, would result in the introduction of those elements of uncer-

tainty and confusion which the law hes aimed especially to prevent.

The purpose of the proviso, in our opinion, was, not to change the

principle in estimating the value of foreign coins, but rather to

permit of a different estimate on the same principle, if it should

appear at any time during the quarter that the proclaimed value

was to a considerable degree at variance with the actual fact existing

at the time of any given importation. While the standard of valu-

ation should be fixed and based on intrinsic value, the whole legis-

lation on this subject shows an effort on the part of Congress to

OK, en LONE SITES

rovide speedier means for correcting the valuation when it is shown

fo be wrong. Until 1873 any change in the valuation of specified

foreign standard coin required a special enactment. By the statute

of 1873 the proclaimed estimate must be made annually. By the

statute of 1890 it must be promulgated quarterly. The proviso, in

section 25 of the act of 1894, was simply another step in the same

direction, and was intended to permit a new estimate of valuation

at any time during the quarter, where there was found to be an

error of at Jeast ten per centym, This is the natural construction

and evident intent of the whole section, and is in harmony with

previous legislation. * * * The second question raised by the

overnment under the assignment of errors 1s that the Board of

Doneval Appraisers had no jurisdiction to review the action of the

Collector in estimating the value in United States money of foreign

coin. This case is not one of disputed appraisement of the value

of imported merchandise, as to which the decision of the Board of

General Appraisers is made final under section 13 of the customs

administrative act of June 10, 1890. U.S. v. Klingenberg, 153 U.

§, 93, 102, 14 Sup. Ct. 790, 88 L. Ed. 647; Hilton v. Merritt, 110

U. 8. 97, 8 Sup. Ct. 548, 28 L. Ed. 83. The dutiable value in rupees

of the merchandise in this case is admitted under the agreed state-

ment of facts ; the only issue being whether this court or the Board

of General Appraisers has jurisdiction to review the action of the

Collector in reducing to United States currency the value of the

rupees. Such jurisdiction, if any, must be fownd in sections 14 and

15 of the act of June 10, 1890. The jurisdiction conferred upon the

cireuit court by section 15 is coextensive with the jurisdiction con-

ferred on the Board of General Appraisers by section 14. This was

so held by the supreme court in the Klingenberg Case (153 U. 8.

93, 14 Sup. Ct. 790, 38 L. Ed. 647) in the following words: ‘ The

subjects of review by the cireuit court, provided for by section 15,

extend to all questions of law and fact in respect to which the

Board of General Appraisers have appellate jurisdiction, except the

decision of that Board as to the dutiable value of merchandise,

which is provided for by section 13, and is made conclusive against

all parties interested.’ In construing section 14, the court says:

‘ By section 14 the Collector's decision on rate and amount of duties,

including all dutiable costs and charges, and as to all fees and

exactions of whatever character (except duties on tonnage), may be

the subject of appeal to the Board of General Appraisers.’ The

Klingenberg Case decided that, where the Collector was simply

called upon, under the statute, to follow the estimate of value made

by the Director of the Mint and proclaimed by the Secretary of the

Treasury, his action was not subject to review by the Board of General

Appraisers. If, for example, in the present case, the Collector had

adopted the proclaimed rate for the rupee on January 1, 1896, of

$.233, his decision would have been final. This conclusion of the

court was based upon the rule laid down in Collector v. Richards,

Cramer vy. Arthur, Hadden v. Merritt, whi supra. These authorities

PEELE NAGE RL EONS

SS ee

‘eee

show the absolute conclusiveness of the value estimated by the

Director of the Mint and proclaimed by the Secretary of the Treasury

of the standard coin of foreign countries. After holding that the

Collector’s construction of the value as proclaimed was correct, the

court said : ‘ This being the proper construction to be placed upon

the proclamation of July 1, 1892, we are of the opinion that the

Collector’s action in adopting the value of the gold florin at the

estimate fixed therein was not subject to review by the Board of

General Appraisers, under the principle laid down in the authorities

already referred to.’ All the Klingenberg Case decided was that,

when the Collector followed such proclaimed value, bis action was

not the subject of appeal under section 14, The present case is the

reverse, for here the Collector refused to be governed by the pro-

claimed value. * * * The question in this case has reference

to the ‘amount of duties,’ and is, therefore, reviewable under sec.

tions 14 and 15 of the act of June 10, 1890, by the Board of General

Appraisers and by the circuit court. The amount of duties liqui-

dated at the proclaimed value of the rupee would have been less

than the amount liquidated at the exchange value. The Klingen-

berg Case is not an authority upon the proposition that where the

Collector declines to accept the proclaimed value of a foreign

standard coin, and adopts another standard, thereby increasing the

amount of duties upon imported merchandise, his action is not the

subject of review, under the act of 1890. Our conclusion is that

the Board of General Appraisers and the court have jurisdiction, and

that the decision of the Board reversing the decision of the Collector

should be affirmed.”

Following the conclusions in U.S. v. J. Allston, Newhall & Co.,

this court, on the first petition in the case at bar, held :

(1) In reducing foreign standard coins to United States currency

for the assessment of duties, the basis in all cases is the value of the

pure metal in such coins, and not their exchange value.

(2) This long-established rule was not changed by the proviso to

section 25 of the tariff act of 1894 (28 Stat. 552), as to reliquida-

tions, where it appeared that the value of the foreign money speci-

fied in an invoice had varied at the time of the invoice more than 10

per cent. from that proclaimed by the Secretary of the ‘Treasury for

that quarter.

(8) A Collector is not authorized, because the consular certificate

accompanying an invoice shows the current exchange value of the

money of the invoice to be more than 10 per cent. greater or less

——__ Pe tig Oe: ASTIN BEC a te LUO eee

than the proclaimed value for the quarter, to depart from such pro-

claimed value, and adopt, for the assessment of duties, the exchange

value shown by the certificate.

(4) The action of a Collector in declining to accept the pro-

claimed value of a foreign standard coin, and in adopting another

standard, thereby increasing the amount of duty on the imported

merchandise, does not relate to a disputed appraisement, but to the

amount of duties; and, under Customs Administrative Act June 10,

1890, §§ 14, 15, is reviewable, on the protest of the importer, by the

Board of General Appraisers and the circuit court.

(5) The Collector, in adopting the exchange value of the rupee

as certified by the United States Consul, and in not adopting the

proclaimed value for the rupee, in liquidating the entry in question,

acted illegally, and the Board of General Appraisers had jurisdiction

to order a reliquidation at the proclaimed value.

(6) The decision of the Board of General Appraisers must be sus-

tained unless it is shown that there has been a valid reliquidation of

the entry in question under the authority conferred upon the Secre-

tary of the Treasury by the proviso of section 25 of the tariff act of

August 27, 1894.

(7) A valid reliquidation under this proviso is a reliquidation

based upon the required difference between the pure metal value of

the foreign coin and the proclaimed value, and is as conclusive as

the proclaimed value under the preceding part of the section.

(8) The note appearing at the foot of the quarterly estimate of

coin value on July 1, 1898, “ The value of the rupee to be deter-

mined by consular certificate,” gave no right, power, or authority to

the Collector to liquidate the entry in question at the value of the

rupee stated by the United States Acting Consul in the certificates

attached to the two invoices.

Upon further consideration, the court sees po reason to change

or modify the views expressed or the conclusions reached in these

opinions. On the former petition, concerning the entry under con-

sideration, the importers contend: First, that there had been in fact

no reliquidation of the entry ; and, second, that the reliquidation of

the entry on any other basis than that of pure-metal value of the

foreign coin was unauthorized. The circuit court considered both

SOOT PORES

Rtas “ERPS oa GORDI LRG

these propositions, and decided both questions in favor of the

importers. On appeal the circuit court of appeals properly only

considered the first question, and, having determined that there had

been in fact no reliquidation, affirmed the judgment of the court

below on that ground, but “ without prejudice to the right of either

party to proceed further, after a proper liquidation by the Collector

of Customs at the port of Boston, in accordance with section 25 of

the tariff act of August, 1894, including the proviso therein.” After

the decision of the circuit court of appeals, the Collector liquidated

the duties on the merchandise at the value of 19.9 cents for each

rupee, in accordance with the proclaimed value of the rupee in pure

metal, as set forth in the treasury circular of July 1, 1888. There-

upon the Secretary of the Treasury informed the Collector that

“ satisfactory evidence ” had been produced to him “ showing that

the value in United States currency of the foreign money of the

invoice, namely the rupee of India, was 32.11 cents at the dates of

certification, which is ten per centum more than the value pro-

claimed during the quarter in which the consular certification

occurred ;” and in view of this fact he directed the Collector “ to

reliquidate the entry hereinbefore mentioned on the basis of this

latter value [32.11], under the authority conferred upon the Secre-

tary of the Treasury by the proviso to section 25 of the act of

August 27, 1894." The Collector accordingly reliquidated the duty

by taking the rupees of the invoice at the value of 32.21 cents each.

By the agreed statement of facts it appears that this order for

reliquidation was not based upon any difference between the pure-

metal value of the rupee on August 11, 1888, and September 1, 1898,

the dates, respectively, of the consular certificates of the invoices,

and the proclaimed value for the quarter beginning July 1, 1898;

that the pure-metal value of the rupee, in terms of United States

gold dollars, on the dates of consular certification, was substantially

19.9 cents, being the value contained in the proclamation ; and that

the value of 22.11 cents was not intended to be the pure-metal value

of the rupee on the dates of certification. The importers duly pro-

tested against this reliquidation, the Board of General Appraisers

sustained the protest, and the United States has brought this peti-

tion for review in the circuit court.

In view of the decisions of this court, there is only one point

now urged by the government which calls for serious consideration.

It is contended that the action of the Collector cannot be impeached,

because the power vested in the Secretary of the Treasury, under the

roviso of section 25 is alsolute, and that his order for reliquidation,

whether justified or not by the proper construction of the proviso,

is not subject to judicial review. This argument is based on the

ruling of the supreme court that the proclaimed value of foreign

coins estimated by the Director of the Mint is final, and cannot be

reviewed by the Board of General Appraisers or the courts, and the

ruling of the court on the first petition for review in the present

case, that a valid reliquidation under the proviso of section 25 is as

conclusive as the proclaimed value under the preceding part of the

section. Collector v. Richards, 23 Wall. 246, 257, 259, 23 L. Ed.

95; Cramer v. Arthur, 102 U. S. 612, 619, 620, 26 L. Ed. 259 ; Had-

den v. Merritt, 115 U. S. 25, 27, 5 Sup. Ct. 1169, 29 L. Ed. 323;

U. S. v. Klingenberg, 153 U. S. 93, 14 Sup. Ct. 790, 38 L. Ed. 647.

To determine the weight and force of this argument, it is well to

point out the issue before the supreme court in those cases, and the

scope of the ruling on the question of couclusiveness.

In Collector v. Richards, the Director of the Mint, acting within

terms of the act of March 3, 1873, and in conformity with the powers

conferred thereunder, estimated the pure-metal value of the franc of

France at 19 cents and 3 mills, and this value was proclaimed by

the Secretary of the Treasury on January 1, 1874. The court held

that the act of March 3, 1873, repealed former acts relating to the

value of the franc, and that the Collector's action in following the

proclaimed value was correct. In construing the act of 1873, which

in this part is identical with section 25 of the act of 1894, Mr. Justice

Brab ey, speaking for the court, said :

‘

seer Mine

“ The important words of the first section are as follows: ‘ The

value of the foreign coin, as expressed in the money of the account

of the United States, shall be that of the pure metal of such coin of

standard value.’ The plain meaning of this language is that the

value of foreign coins in United States money shall be measured by rs

the amount of pure metal contained therein when of standard value ; fs

that is, when of the weight and fineness required by the laws and &

regulation of the country where they are produced. * * * The

true method of comparing their money of account with ours, when

both are based on actual coin, is to compare the standard coins of

the two countries in a perfect state, and to ascertain the actual

amount of pure metal in each. This is the result at which Congress :

seems to see arrived, and, as we think, wisely.” 257 Wall. 257, 3

259, 23 L. Ed. 95. *

Czamer v. Arthur also arose under the act of 1873. The Director

of the Mint, in conformity with the statute and the method therein

ihe Nee ae MMC RIUM ARs MRM aed Seer RAE TELS ad

prescribed, estimated the values of foreign standard coins in United

States money, and these values were duly proclaimed by the Seo.

retary of the Treasury. The pure-metal value of the Austrian florin

was fixed at 47.60 cents. The importer sought to go behind this

value, and show a different value. This was refused on the ground

that the proclaimed value was conclusive. In the opinion of the

court Mr. Justice BRADLEY said :

“ The plaintiff seeks to go behind this valuation, and to show

that at the time of the purchase of the goods the value of the silver

florin in Vienna, as quoted in the papers, and as exhibited by the

actual rate of exchange, was less than 47.60 cents, namely, 45.60

cents, and that the value of the paper florin was 43.71 cents. This,

we think, the plaintiff cannot be allowed to do. The proclamation

of the Secretary and the certificate of the Consul must be regarded

as conclusive. In the estimation of the value of foreign moneys for

for the purpose of assessing duties there must be an end to contro-

versy somewhere. When Congress fixes the value by a general

statute, parties must abide by that. When it fixes the value through

the agency of official instrumentalities, devised for the purpose of

making a nearer approximation to the actual state of things, they

must abide by the values so ascertained. If the currency isa

standard one, based on coin, the Secretary’s proclamation fixes it; if

it is a depreciated currency, the parties may have the benefit of a

consular certificate. To go behind these, and allow an examination

by affidavits in every case, would put the assessment of duties at

sea. It would create utter confusion and uncertainty. * * * It

is of the utmost consequence to the government, and it is, on the

whole, most beneficial to importers, that the value of foreign moneys

should be officially ascertained, and that they should be fixed by a

uniform method or rule.” 102 U.S. 619, 620, 26 L. Ed. 259.

Hadden v. Merritt likewise arose under the act of 1873. Here,

also, the Director of the Mint had estimated the pure-metal values

of foreign standard coins, which were duly proclaimed by the Secre-

tary of the Treasury. The invoices of the merchandise were made

out in Mexican dollars. It was held that the proclaimed value was

conclusive upon custom-house officers and collectors, and could not

be impeached by evidence showing that the Director of the Mint had

made a mistake or miscalculation in his estimate by expressing the

value of the Mexican dollar in the silver dollar of the United States,

and not in the standard gold dollar. In that case Mr. Justice Mat-

THEWS, speaking for the court, said :

“ The value of foreign coins, as ascertained by the estimate of

the Director of the Mint and proclaimed by the Secretary of the

a—— ARID TERA IRN a a mee

Treasury, is conclusive upon custom-house officers and importers.

No errors alleged to exist in the estimate, —o from any cause,

can be shown in a judicial proceeding to affect the rights of the

overnment or individuals. There is no value, and can be none, in

such coins, except as thus ascertained ; and the duty of ascertaining

and declairing their value, cast upon the Treasury Department, is

the performance of an executive function, requiring skill and the

exercise of judgment and discretion, which precludes judicial inquiry

into the correctness of the decision. If any error in adopting a

wrong standard, rule, or mode of computation, or in any other way,

is alleged to have been committed. there is but one method of cor-

rection. That is to appeal to the department itself. To permit

judicial inquiry in any case is to wo a matter for repeated decision,

which the statute evidently intended should be annually settled by

ublic authority ; and there is not, as is assumed in the argument

of the plaintiff in error, any such positive and peremptory rule of

valuation prescribed in the statute as serves to imit the discretion R

of the Treasury Department in making its published estimate, or ¥

would enable a court to correct an alleged mistake or miscalculation. :

The whole subject is confined by the law exclusively to the jurisdic- :

tion of the executive officers charged with the duty, and their action

cannot otherwise be questioned.” 115 U.S. 27, 28, 5 Sup. Ct. 1179, 5

29 L. Ed. 333.

U. 8. v. Klingenberg arose after the passage of the customs ad- &

ministrative act of June 10, 1890 (26 Stat. 131). The Director of the

Mint, in conformity with the act of 1873. had estimated the pure-

metal value of foreign standard coins, and such values were duly é

proclaimed by the Secretary of the Treasury on July J, 1892. In

reducing the currency of the invoices into United States money, the

Collector estimated the florin at $0.482, which was the proclaimed

value of the gold florin. The importer protested against this action,

insisting that the Collector should have adopted the silver florin as

the standard value, it having been referred to in the proclamation z

as the “nominal standard.” Having first determined that the proper :

construction of the proclamation required the Collector to adopt the

gold florin as the pure metal and better standard, rather than the

silver florin, or “ nominal standard,” the court held that “ the Col-

lector’s action in adopting the value of the gold florin at the esti-

mate fixed therein was not subject to review by the Board of General

Appraisers, under the principle laid down in the authorities already

referred to.” 153 U. S. 100, 14 Sup. Ct. 793, 38 L. Ed. 647. These

authorities were Collector, etc., v. Richards, and the other cases i

already discussed.

BOE FBG EOIN PIR

4 PEAT ELLIS

ae |

In all these cases it will be observed that the Director of the

Mint, acting within the scope of the powers conferred by statute,

made his estimates on the pure-metal basis. It is manifest, there.

fore, that the rule of conclusiveness laid down in these cases goes

to this extent, and no further: Where the pure-metal values of

foreign standard coins as provided by the statute have been esti-

mated by the Director of the Mint and proclaimed by the Secretary

of the treasury, such values are conclusive, and cannot be impeached

by evidence of mistake or miscalculation. In other words, the pure-

metal estimate by the Director of the Mint, as a fact found, is final,

and the Collector’s action in conformity with such finding is not

subject to judicial review, either under the old law, where the im-

porter brought suit against the Collector in the circuit court to

recover the duties paid, or under the customs administrative act of

1890, where an appeal is taken from the Collector’s decision to the

Board of General Appraisers. Assuming the word “ value” in the

proviso of section 25 to mean “ value in pure metal,” as the cout

has already determined, the doctrine of conclusiveness applied to

reliquidations goes to this extent, and no further: The order for

reliquidation of an entry by the Secretary of the Treasury upon evi-

dence satisfactory to him, based on the required difference between

the pure-metal value of the foreign money specified in the invoice

and the proclaimed value, is conclusive, and the action of the Col-

lector thereunder is not reviewable by the Board of General Ap-

praisers or the courts.

But this is not the issue presented in the case at bar. The im-

po:ters are not seeking to impeach the order for reliquidation by

evidence that the Secretary's finding of fact respecting the difference

between the pure-metal value of the rupee and its proclaimed value

at the date of the consular certifications was erroneous. There is

no such question involved in the present case. On the contrary, it

is stipulated that the order for reliquidation was not based upon

any difference in metal values, and that the pure-metal value of the

rupee on the dates specified was substantially the same as the pro-

claimed value. The case now presented raises no question of fact,

but only questions of law. The fundamental inquiry has reference

to the power of the Secretary, under the proviso, to make the order

in question ; and this court having determined that the proviso does

not authorize him to make such an order, the specific question under

discussion is whether, under such circumstances, the order is unim-

peachable. Is an order for reliquidation, founded upon a wrong

—~ “

interpretation of the statute, conclusive, and the Collector's action

thereunder not subject to review? Can the Secretary choose any

standard of value for the foreign coin he pleases,—as, for example,

the exchange value,—and will such action be final, although it is

outside of the authority and jurisdiction conferred upon him by the

proviso ? Can the Secretary first adopt an illegal standard of value,

and then make an offer or finding based upon such illegal standard,

which cannot be impeached? If the doctrine of conclusiveness

goes to this extent, then the importer is no longer governed by the

laws which Congress enacts, but by the Secretary’s interpretation of

them ; and the result might be that under the form of reliquidation

the pure-metal rule of value in the assessment of duties, which has

revailed since the origin of the government, may be to a large

extent nullified. In Greely v. Thompson, 10 How. 225, 234, 13 L.

Ed. 397, the supreme court said :

«“ The orders as well as the opinions of the head of the Treasury

Department, expressed in either letters or circulars, are entitled to

much respect, and will always be duly weighed by this court; but

it is the laws which are to govern, rather than their opinions of

them ; and importers, in cases of doubt, are entitled to have their

rights settled by the judicial exposition of those laws, rather than

by the views of the department.’

Alleged errors of judgment or of fact, or alleged mistakes or mis-

calculations, committed by a government officer when acting within

the authority conferred by law, are very different in principle from

alleged errors springing from a misinterpretation of the law and the

adoption of a principle which is contrary to law. The finding by

the Director of the Mint of the pure-metal value of foreign coins, as

authorized by section 25, or the finding by the Secretary of the

Treasury of the requisite difference between the pure-metal value of

a foreign coin and the proclaimed value, as authorized by the pro- :

viso, is a very different thing from the finding by the Director of

the Mint of the exchange value of foreign coins, not authorized by

section 25, or the finding by the Secretary of the difference between

the exchange value of a foreign coin and the proclaimed value, not

authorized by the proviso. Suppose, for example, the Director of

the Mint, in his estimate of July 1, 1898, in evidence in the present

record, had said: “ In pursuance of section 25 of the act of August

27, 1994, I present in the following table an estimate of the values of

the standard coins of the nations of the world for the next quarter.

PCE.

PET sy Wendt Set Wore atk

i Praia ahs We latte SAN

pradiies.

Bein: ee

These estimates are not, as heretofore, based on the pure-metal

value of such coins, but on their exchange value, as certified by con.

sular certificate. This estimate is in accordance with the provisions

of section 25 as I interpret them.” And suppose these exchange

values had been duly proclaimed by the Secretary of the Treasury,

“to be followed in estimating the value of all foreign merchandise

exported to the United States on or after J uly 1, 1898, expressed in

any of such metallic currencies.” Can it be presumed for a moment

that such proclaimed values would be binding and conclusive upon

all importers of foreign merchandise? In such a case the Director

of the Mint manifestly has transcended the powers conferred upon

him by section 25, which declares “ that the value of foreign coin

* * * ghall be that of the pure-metal value.” There is here q

plain violation of the terms of the statute. The estimate has pro-

ceeded on a principle contrary to law. In attacking such an esti-

mate the issue is simply one of law involving the power of the

Director of the Mint under the statute. Itis a question of illegal

action, arising outside of authorized powers, and not of error or

mistake committed within the scope of lawful authority. So in the

case at bar, assuming the word “ value” has the same signification

in the proviso as in the body of the section, when the Secretary

ordered the reliquidation of the entry in question on a basis other

than the pure-metal value of the rupee, or the difference between

its pure-metal value and the proclaimed value, he exceeded the

powers conferred by statute. He adopted an unauthorized standard

of valuation. He proceeded ona wrong principle, contrary to law,

The Secretary of the Treasury, the Collector of Customs, the Commis-

sioner of Patents, the officers of the land department, and all officers

of the government charged with ofticial duties, must proceed accord-

ing to law. Within the scope of their statutory powers their acts

may be final and conclusive, but acts which are based upon a wrong

principle, contrary to law, or which flow from an assumption of

authority or jurisdiction not conferred by statute, have never been

held to be conclusive and unimpeachable. Some of the authorities

are reviewed in the able opinion by Judge SomERvILLeE, speaking for

the Board of General Appraisers, in the case at bar. The principle

is so clear upon reason, and has been so often recognized, that it is

unnecessary to refer to numerous cases. Under section 13 of the

customs administrative act the decision of the Board of General

Appraisers is made “ final and conclusive as to the dutiable value ”

of imported merchandise. But in respect to such conclusiveness

Mr. Chief Justice Futter, speaking for the court, in U. S. v. Passa-

vant, said :

“ While the general rule is that the valuation is conclusive upon

all parties, nevertheless the appraisement is subject to be impeached

where the Appraiser or Collector has proceeded on a wrong principle,

contrary to law, or has transcended the powers conferred by

statute.” 169 U.S. 16, 21, 18 Sup. Ct. 219, 42 L. Ed. 644.

In Robertson v. Frank Bros. Co., 182 U.S. 17, 24, 10 Supt. Ct.

5, 7, 33 L. Ed. 236, the court said :

“ But it is contended that the act of the Appraiser in making or

requiring to be made, the additional charges for transportation and

labor, was final and conclusive, and cannot be made the subject of

inquiry. It is undoubtedly the general rule that the valuation of

merchandise made by the Appraiser, unappealed from, to merchant

appraisers, is conclusive. But whilst this is the general rule, it is

subject to the qualification that if the Appraiser proceed upon a

wrong principle, contrary to law, and this be made to appear, his

appraisement is not unimpeachable. This qualification applies to

the acts of many other officials charged with duties of a similar

character.”

In Muser v. Magone, 155 U. S. 240, 247, 15 Sup. Ct. 77, 80, 39

L. Ed. 135, the court said :

“ Yet, though the valuation is final, and not subject to review

and change and reconstruction by the verdict of a jury, it is open to

attack for want of power to make it; as where the appraisers are

disqualified from acting, or have not examined the sod, or illegal

items have been added independent of the value. The principle

applied in such cases is analogous to that by which the proceedings

of a judicial nature are held invalid because of the absence of some

strictly jurisdictional fact or facts essential to their validity.”

In Shepley v. Cowan, 91 U. S. 330, 340, 23 L. Ed. 424, Mr.

Justice FreLp, in the opinion of the court, when speaking of the

decisions of the land office, said :

“ The officers of the land department are specially designated

by law to receive, consider, and pass upon proofs presented with

respect to settlements upon the public lands, with a view to secure

rights of pre-emption. If they err in the construction of the law

— to any case, or if fraud is practiced upon them, or they

themselves are chargeable with fraudulent practices, their rulings

may be reviewed and anuulled by the courts when a controversy

arises between private parties founded upon their decisions ; but,

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for mere errors of judgment upon the weight of evidence in a cop.

tested case before them the only remedy is by appeal from one

officer to another of the department.”

See, also, Butterworth v. Hoe, 112 U.S. 50, 5 Sup. Ct. 25, 98

L, Ed. 656 ; Johnson v. Towsley, 13 Wall. 72, 20 L. Ed. 485; Moore

v. Robbins, 96 U. 8. 530, 535, 24 L. Ed. 848; Catholic Bishop of

Nesqually v. Gibbon, 158 U. 8. 155, 15 Sup. Ct. 779, 39 L. Ed. 931;

Railroad Co. v. Forsythe, 159 U. S. 46, 61, 15 Sup. Ct. 1020, 40, L,

Ed. 71.

The point now taken for the first time by the government that

the action of the Collector is not a “ decision ” within the meaning

of section 14 of the customs administrative act is untenable, because

the “ascertainment and liquidation of duties” is plainly 4

“ decision” within the meaning of the section.

With respect to section 2652 of the Revised Statutes, it may be

observed that, although the Collector must carry into effect all in-

structions of the Secretary of the Treasury relative to the execution

of the revenue laws, yet as to third persons the Jegality of the Col-

lector’s action is open to judicial review. Greely v. Thompson, 10

How. 225, 234,13 L. Ed: 397; Tracy v. Swartwout, 10 Pet. 80, 95,

9 L. Ed. 354.

In conclusion, it would seem that this whole controversy must

turn on the true construction of the word “ value” in the proviso

If the interpretation by the government be correct, and the word

signifies exchange value, or any standard of value the Secretary may

adopt, then the order for reliquidation, and the action of the Col-

lector thereon, were legal, and conclusive on the importers. If,

on the contrary, as we hold, the word “ value ” signifies pure-metal

value, then the Secretary’s order for reliquidation was beyond the

scope of his authority, and contrary to law, and the action of the

Collector was appealable to the Board of General Appraisers, and

reviewable by this court, under sections 14 and 15 of the customs

administrative act.

For these reasons the decision of the Board of General Ap-

praisers must be affirmed. Decision affirmed.

The U. S. Circuit Court of Appeals in Beebe’s

second case (122 F ed, Rep., 762—March 10, 1903).

Puram, Circuit Judge. This is an appeal from a decision of

the Circuit Court in a customs case, made in accordance with sec-

tion 15 of an act entitled “ An act to simplify the laws iu relation

to the collection of revenues,” approved June 10, 1890, c. 407 (26

Stat. 138). The decision of the Circuit Court was in favor of the

importers, and the United States appealed.

The case turns on the construction of section 25 of the act which

went into effect August 27, 1894, entitled “ An act to reduce tax-

ation, to provide revenue for the government, and for other pur-

poses.” Chapter 349, 28 Stat. 552 (U.S. Comp. St. 1901, p. 2375]

That is as follows :

“Sec, 25. That the value of foreign coin as expressed in the

money of account of thie United States shall be that of the pure

metal of such coin of standard value ; and the values of the stand-

ard coins in circulation of the various nations of the world shall be

estimated quarterly by the Director of the Mint, and be proclaimed

by the Secretary of the Treasury immediately after the passage of

this act and thereafter quarterly on the first day of January, April,

July and October in each year. And the values so proclaimed shall

be followed in estimating the value of all foreign merchanise ex-

orted to the United States during the quarter for which the value

is proclaimed, and the date of the consular certification of any in-

voice shall, for the purposes of this section, be considered the date

of exportation: provided, that the Secretary of the Treasury may

order the reliquidation of any entry at a different value, whenever

satisfactory evidence shall be produced to him showing that the

value in United States currency of the foreign money specified in

the invoice was, at the date of certification, at least ten per centum

more or less than the value proclaimed during the quarter in which

the consular certification occurred.”

All the questions involved in this appeal turn on the rules of

statutory construction, and the application thereof. The learned

Judge of the Circuit Court considered them all carefully. So far as

they are not discussed in this opinion, his reasoning and conclus-

ions are accepted by us, and need no addition nor explanation. The

main question arises in the following manner :

{he importations in issue were of merchandise purchased at Cal-

sence a

cutta, and invoiced there in rupees in August, 1898. The bullion

value of the rupee at that time, in accordance with the tabulation of

the Director of the Mint provided by law, was 19 cents and 9 mills,

while its market value at Calcutta, and its value then and there as

currency, was 32 cents 1 mill and one-tenth of a mill, being an appre-

ciation of over 60 per cent. This came about in a way quite unex-

ampled in the history of foreign currencies with which the United

States have had to deal, and subsequently to the act of 1904,

As is well known, the historical currency of India is in silver

rupees, which have there been legal tender for a long period. The

only gold currency known there in matters of account with foreign

peoples is the English sovereign. The rupee had been the princi-

pal coin, and the sovereign the exceptional one. Previous to J une,

1893, the mints of India had been bound by law to the free public

coinage of silver into rupees, and therefore the rupee circulated at

its bullion valae. The legislation of that date closed the mints.

For a time thereafter, however, the rupee continued to fall as its

bullion value decreased. But it subsequently rose in value, and

since January, 1898 (being the year in which the mérchandise in

question was invoiced), it has been practically stable in mercantile

transactions at 32 cents 1 mill and one-tenth of a mill. In 1899, by

legislation, the British sovereign was made legal tender in India at

the ratio of 15 rupees to the sovereign ; thus permanently fixing the

currency value of the rupee at substantially the figure which it

reached in 1898.

Thus it will be seen that the silver rupee, like our silver dollar,

had at the time this merchandise was invoiced a practical value as

legal tender far in excess of the bullion value at which, according

to law, it was rated by the Director of the Mint; and these changes

in value of the rupee accrued after the act of 1894 went into effect.

Previous to that act there were no differences with regard to the

rupee of the character which we have described as existing in 1898.

The prior differences were such as arose from fluctuations of the

marketable price of silver. These, except in case of violent changes,

would have been approximately and sufticiently provided for by the

quarterly determinations of the Director of the Mint. But the fluc-

tuations of the bullion value of the rupee, corresponding to the

fluctuations of the market value of silver, were rapid and numerous

about and just prior to the passage of the act of 1894, It is true

~ that there had been for some years prior to 1892 a gradual diminu-

~~ tion in the market value of silver; but during 1892, 1893, and

Ce Se ee ks |

1894, it lost fully 50 per cent., 80 that, while its commercial ratio

with reference to gold was represented in 1891 by 20.92, in 1894 it

wae represented by 32.56. Without going into the details of these

fluctuations, it is apparent that at times they must have been vio-

lent during the periods prescribed by law for the Director of the

Mint. Indeed, in 1893, for some single calendar months, they were

more than 20 per cent. of the bullion value of the rupee.

Of course, importations from every country where the basis of

the currency was a silver coinage were involved in the same diffi-

culties, growing out of the rapid fluctuations of bullion values im-

mediately prior to the passage of the act of 1894, as those de-

scribed in connection with the Indian rupee. It is not necessary,

however, to go into details of other foreign currencies, or to describe

the extent to which they affected the mass of importations, because

it is apparent from what we have already said that there was ample

occasion for the legislation of 1894 in question in the fluctuations

of the bullion value of silver, and therefore no necessity for looking

for other inducements thereto.

The question which we have to consider is whether section 25 of

the act of 1894 is to be regarded as satisfied by having reference to

the state of things existing when it was passed; that is to say, the

violent fluctuations in the marketable value of silver, and corres-

pondingly in the bullion value of rupees, which marked that pe-

riod, or whether it is to be construed so as to cover subsequent

differences between the intrinsic worth of the rupee and its worth

as legal tender and as money of account. In other words, claiming

to proceed under the authority of the proviso in section 25, the

Secretary of the Treasury ordered the reliquidation of the entries

of this merchandise without regard to pure-metal values, and based

on the legal-tender value of the rupee at 32.11; and the question is

whether, as a matter of law, this was justified thereby.

Prior to the act of March 3, 1873, c. 268 (17 Stat. 602), as well

observed in the opinion of the learned Judge of the Circuit Court,

the values of foreign coins for custom purposes were fixed arbitrar-

ily at different times by different statutes; each statute relating to

one or more coins. The first section of that act reads as follows :

“That the value of foreign coin as expressed in the money of

account of the United States shall be that of the pure metal of such

coin of standard value ; and the values of the standard coins in cir-

culation of the various nations of the world shall be estimated an-

nua!ly by the Director of the Mint, and be proclaimed on the first

day of January by the Secretary of the Treasury.”

NN a |

The law conformed to the letter of this provision of statute until

the act of 1894 in question here, though modified to require quar-

terly estimates. This act, being a revenue Dill, originated in the

House which gave passage to the first portion of section therein ;

repeating, with the modification of “ quarterly” instead of “an.

nually,” the phraseology of the act of March 3, 1873, and contain.

ing nothing more. The balance of the section, as it now stands,

was incorporated into it by the Senate on the recommendation of

its finance commit

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