Under the sixth proviso of paragraph 28 of the tariff act of 1922, a standard of strength having been adopted in conformity to the preceding provisos in said paragraph before the importation of certain coal tar, it is held that such color is subject to duty pursuant to such standards of strength as set forth and published in T. D. 40192, although such decision was made by an Assistant Secretary of the Treasury, his act being held to be in compliance with the language of said sixth proviso.

Abstract decision 11009 (T. D. 27309); Franklin Sugar Refining Co. v. United States (178 Fed. 745); Chadwick v. United States (3 Fed. 756); John Shillito Co. v. McClung (51 Fed. 868); and United States v. Peralta (19 How. 347) cited and followed.

BROWN, J., dissenting, holds:

The authority to establish standards for levying the 7 cents per pound specific duty of paragraph 28, act of 1922, otherwise than on the actual weight of the imported goods is vested solely in the Secretary of the Treasury. Following American Rug & Carpet Co. v. United States (50 Treas. Dec. 235).

When a delicate discretionary duty affecting the amount of a tax paid has been imposed upon a particular executive official, and another announces over his signature that it has been "hereby performed," there is no reasonable legal presumption arising from such publication in the departmental circular that the person upon whom the duty was imposed has performed it.

United States Customs Court, First Division

Protest 181216-G against the decision of the collector of customs at the port of New York

[Affirmed.]

(Decided March 26, 1928)

Strauss & Hedges (John Francis Strauss of counsel) for the plaintiff.

Charles D. Lawrence, Assistant Attorney General (Ralph Folks and Kenneth G. Osborn, special attorneys), for the United States.

Before MCCLELLAND, SULLIVAN, and BROWN, Justices; BROWN, J., dissenting

MCCLELLAND, Justice: The legality of the assessment of duties on certain coal-tar colors, dyes, or other coal-tar products by the collector of customs at the port of New York was placed in issue by the filing of this protest. The grounds of objection to such assessment of duties are stated in the protest as follows.

Hon. COLLECTOR OF CUSTOMS, Port of New York.

SIR: Notice of dissatisfaction is hereby given with, and protest is hereby made against, your assessment and liquidation, of duties and your decision (including the legality of all orders and findings entered into the same) assessing duty on the entries below named. The reasons for objection are as follows:

You have assessed and liquidated a specific duty of seven cents per pound on certain colors or other coal-tar products upon the basis of too great a weight. Duty should be assessed upon only the actual weight of the merchandise imported. There is no warrant of law for assessing or computing the specific duty upon the basis of a weight greater than the actual weight of the merchandise imported. No standards of strength for said merchandise have been established by the Secretary of the Treasury, or had not been at the time of importation or liquidation of said shipments. Assessment of duty on the basis of any alleged standard not established by the Secretary of the Treasury is illegal and void.

It is further and alternatively claimed that in any event you have assessed duty upon the basis of too great a weight and too great a strength. The merchandise is of a less strength than determined by you in liquidation. The alleged standard which you have employed in liquidation is erroneous. The merchan

dise, when compared with the proper standard, is of less strength than determined by you in liquidation.

It is further and alternatively claimed that in the absence of the establishment of correct standards of strength in accordance with the statute said merchandise is liable to no specific duty whatever.

You should reliquidate the entry in accordance with the above claims and remit or refund the excess duties exacted by you.

Subsequent to the filing of said protest and before it was first called on the calendar for trial a motion was made on behalf of protestant to amend the said protest by adding to the grounds of objection above quoted, at the end of the second paragraph thereof, the following:

It is claimed that the establishment of standards by an assistant secretary or by any other than the Secretary of the Treasury is illegal, null, and void. It is claimed that the establishment of another color as a standard of strength for an imported color is contrary to the intent of the law, illegal, null, and void. In establishing a standard of strength for any dye or other article, the commercial

strength of that dye or other article in ordinary use in the United States prior to July 1, 1914, or later, if the dye or other article has been introduced into commercial use since that date, must be found.

When the case was finally called for trial on June 8, 1927, it was submitted for decision on the following stipulation:

It is hereby stipulated and agreed by and between the parties hereto:

(1) That the merchandise the subject of protest is a coal tar color known as thioindigo scarlet 2G paste 20%.

(2) That the merchandise was assessed for duty under paragraph 28 of the tariff act of September 21, 1922, pursuant to the standards of strength adopted in T. D. 40192 of May 17, 1924.

(3) That helindone fast scarlet C 10% paste, Item No. 288 in T. D. 40192, is the standard named in said Treasury decision as the standard for the imported color, and that in accordance with said Treasury decision, said helindone fast scarlet C 10% paste was used as the basis for the assessment of duty on the merchandise at issue, namely, a duty of two times the weight of the merchandise.

(4) It is further stipulated and agreed that the merchandise was entered on October 29, 1924, and that the entry was liquidated on October 19, 1925.

(5) It is further stipulated and agreed that the importer limits his protest to the question of the legality of T. D. 40192, claiming that the provisions and the standards adopted in this Treasury decision are illegal, null, and void, and that the Government claims that the merchandise was properly and lawfully classified for duty by the collector.

It is further stipulated, consented and agreed that the case be submitted to the court for its decision on this stipulation and the record in the case.

RALPH FOLKS,
For Assistant Attorney General.
STRAUSS & HEDGES,
Attorneys for the Importer.

Counsel for the plaintiff in a reply to the brief of the Assistant Attorney General for the Government states:

The underlying error of the Government's brief is shown by its statement of the case. It states that the importer contends that T. D. 40192 is null and void because it is signed by McKenzie Moss, Assistant Secretary, instead of by the Secretary himself. This is not the contention of the importer at all. The importer contends that the establishment of standards of strength is a special power vested in the Secretary himself and that it can not be delegated to anyone else. As pointed out in our main brief T. D. 40192 is not a mere proclamation but is in fact an actual adoption of certain standards of strength and the adoption is the act of McKenzie Moss, Assistant Secretary. The illegality comes in in the adoption of standards of strength by the Assistant Secretary. There is no contention that if the Secretary had adopted standards of strength the proclamation could not properly have been signed by the Assistant Secretary.

It is doubtful whether either the language of the protest or the fifth paragraph of the stipulation contemplates or justifies this unique distinction. Following the foregoing quotation from plaintiff's reply brief we find a paragraph reading—

In view of the Government's basic misunderstanding of the issue none of the Government's arguments or cited cases are in point or controlling here. (Italics

"I can not subscribe to that logic as being sound. The issue presented to this court for settlement is "the legality of T. D. 40192," the claim being "that the provisions and the standards adopted in this Treasury decision are illegal, null, and void.”

In approaching the question of law involved it is important to note that the issue is narrowed by counsel for the plaintiff in their reply brief as follows:

The illegality comes in in the adoption of standards of strength by the Assistant Secretary. There is no contention that if the Secretary had adopted standards of strength the proclamation could not properly have been signed by the Assistant Secretary. (Italics mine.)

The question at once presents itself whether, in the absence of proof to the contrary, it must not be presumed that the standards complained of were adopted by the Secretary and the promulgation thereof by the Assistant Secretary was made under the authority of the Secretary. In section 5 of the tariff act of 1897 it was provided—

SEC. 5. That whenever any country, dependency, or colony shall pay or bestow, directly or indirectly, any bounty or grant upon the exportation of any article or merchandise from such country, dependency, or colony, and such article or merchandise is dutiable under the provisions of this act, then upon the importation of any such article or merchandise into the United States, whether the same shall be imported directly from the country of production or otherwise, and whether such article or merchandise is imported in the same condition as when exported from the country of production or has been changed in condition by remanufacture or otherwise, there shall be levied and paid, in all such cases, in addition to the duties otherwise imposed by this act, an additional duty equal to the net amount of such bounty or grant, however the same be paid or bestowed. 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, who shall make all needful regulations for the identification of such articles and merchandise and for the assessment and collection of such additional duties.

In thus providing for the ascertainment, determination, and declaration of the net amount of "such bounties or grants" by the "Secretary of the Treasury," "who shall make all needful regulations for the identification of such articles and merchandise and for the assessment and collection of such merchandise and for the assessment and collection of such additional duties," it seems that the authority conferred and the power vested in the Secretary was as direct and no less personal than that conferred under the sixth proviso of paragraph 28 of the existing tariff law, which, in so far as pertinent, reads:

That in the enforcement of the foregoing provisos in this paragraph the Secretary of the Treasury shall adopt a standard of strength for each dye or other article which shall conform as nearly as practicable to the commercial strength in ordinary use in the United States prior to July 1, 1914.

In abstract decision 11009 (T. D. 27309) of the Board of General Appraisers, in an opinion written by Judge Somerville, the question