color," as used in the statute, means the color of the sugar obtained by the ordinary processes of manufacture, as practised at the time of the enactment of the law, and that any means used to degrade the color of sugar during or after the process of manufacture, is a fraud upon the revenue, the instructions were that all sugars containing 90 per cent., and not more than 94 of crystallizable sugar, the apparent color of which is not above No. 7, Dutch standard in color, shall be classified as above No. 7, and not above No. 10, Dutch standard in color. Similar instructions were given in regard to other grades. Afterwards the instructions were modified. It was shown beyond dispute on the trial that, so far as their color was concerned, the sugars in question were below No. 7, Dutch standard, a grade chargeable by the statute with only 1 cents per pound. But the court allowed the defendant to prove, if he could, that the color of the sugars was an artificial color, imparted after the process of manufacture, or after they became the sugars of commerce, and as no proof was offered to show that the sugars were artificially colored after the process of manufacture was completed, the court instructed the jury to find for the plaintiff. The defendant offered to prove that the color was imparted to the sugar in the course of manufacture by the use of an extra quantity of lime, or by the introduction of molasses, and increasing the temperature of the vacuum-pan or boiler, but this evidence the court held to be incompetent. To narrow the point of difference, the defendant offered to show that coloring-matter, namely, molasses, was introduced into the vacuum-pan or boiler after the mass had been brought to the state of sugar, but before its final passage through the coolers and centrifugal tubes, the last process through which it goes, but this evidence was also rejected. The real question in the case was, whether, supposing the sugars are not artificially colored for the purpose of avoiding duties, after being manufactured, their dutiable quality is to be decided by their actual color graded by the Dutch standard, or by their saccharine strength as ascertained by chemical tests. The plaintiff maintains the former proposition; the defendant, the latter. The test described by the statute is Dutch standard in color. The first question that naturally arises is, if Congress desired the application of the chemical test in order to determine the saccharine strength of the sugar, why does not Congress say so? There are two very distinct and different modes of distinguishing sugar-by its color and by the intrinsic percentage of specific crystalline sugar in the mass. One is determined by a color standard; the other, by a chemical standard. Which of these did Congress adopt? We think, clearly the former. Congress may have acted under a mistaken idea that color would always indicate quality. Perhaps up to the time the customs laws were passed, as the process of manufacturing had been conducted, color was an approximate or general indication of quality. Suppose this to be so, does it derogate from the fact that color was the standard which Congress, with the lights which it had, saw fit to adopt? If it be found by experience that the standard is a fallacious one, can the Executive Department supply the defects of legislation? Congress alone has the authority to do this, and its will alone is to be sought. * * * * * * * The color standard has come to be a precarious one; still, if the Government chooses to adhere to it, it is bound by it. If Congress, as it has done, adopt the color standard, it is not for the customs department to adopt a different one. When Congress chooses to do this it will be time enough for the custom-house to follow. As before said, Congress alone has the power to lay taxes and duties. The judgment in this case is affirmed. This decision being contrary to the instructions of this Department contained in its circulars of July 19 and September 2, 1879, said circulars are hereby revoked, and duties will be hereafter collected on the apparent color of the sugar as imported, acquired in the process of manufacture. Unliquidated entries will be adjusted upon the proper basis for duties, and the excess of deposits found due refunded. Where entries shall not have been liquidated more than ten days at the date of these instructions, the necessary readjustments will be made without requiring the formality of protest and appeal. In other cases, where the provisions of law necessary to protect the rights of the importers shall have been duly complied with, the entries will be readjusted upon the proper basis, and certified statements forwarded for a refund of the money overpaid, with interest and accrued costs where suits have been instituted. TREASURY DEPARTMENT, March 16, 1882. SIR: The Department duly received your letter of the 15th ultimo, submitting the appeal (9492 g) of W. C. Townsend from your assessment of duty on certain statuary, so called, imported, per "Sidonia," February 4, 1881. It is understood that the figures in question were of marble, and that the invoices were accompanied with the artist's certificates required by Decision 4403, to establish the fact that the figures were statuary, the professional production of a sculptor. The appraiser, however, made the following return on the invoice: "Manufactures of marble, 50 per cent. The statuary on this invoice, although accompanied by the artist's oath and consul's certificate, presents no evidence in themselves of being of original design.” The appraiser adds in his report: "The obvious meaning of this return is, that the expert could not affirmatively determine, upon the physical evidence, whether the statues were or were not of original design.” The paragraph in Decision 4403, upon which it is understood this action was taken, is as follows: "It becomes, therefore, the duty of the customs officers, although the declaration and certificate may be prima facie evidence, to go beyond them, and ascertain by any means in their power how the imported articles are to be classified, and to what rate of duty they are subject." There should, however, in the opinion of the Department, be some reasonable evidence found, either in the figures themselves or otherwise, that they are not of a character entitling them to classification as statuary, before they can be properly excluded from such classification, when the proper certificates are produced. The mere inability of the appraiser's officers to positively decide upon the physical evidence afforded by the figure that the article is statuary within the meaning of the decision is not enough. The appraiser should be able to state, upon all the evidence before him, that the article is not statuary dutiable at 10 per cent. under the decision referred to. The appraiser at Philadelphia explains the rule which has been adopted at that port as follows: "We apply the same rules to statuary that we do to other imported merchandise. If we have no evidence in our possession which leads us to believe that its classification is false and erroneous, we accept the oath of the importer as correct and pass his goods." This practice accords with my views as before expressed, and the action of the officers at your port should conform thereto. The report of the appraiser in the present case shows that the figures are of a character which may, upon the evidence produced, be fairly assumed to be statuary, dutiable at 10 per cent., and, unless evidence to the contrary is adduced, you will readjust the entry at that rate and forward a certified statement for refund of the excess of duties exacted. Very respectfully, H. F. FRENCH, COLLECTOR OF CUSTOMS, New York. Assistant Secretary. (5156.) Steel railway-blooms-Duty on. TREASURY DEPARTMENT, March 16, 1882. SIR: I transmit herewith a copy of a letter dated the 14th instant, from Messrs. Wolff, Kahn & Co., of New York, in regard to duties upon certain steel blooms, so called, now in bonded warehouse at your port. I understand the present decisions of this Department to admit steel railway-blooms, of whatever size, at a duty of 45 per cent. ad valorem, and not to admit at that rate any blooms except steel railwayblooms. Any steel railway-blooms remaining in bonded warehouse, duties unpaid, may be withdrawn for consumption on payment of the duty of 45 per cent., and the entries be adjusted accordingly. Very respectfully, COLLECTOR OF CUSTOMS, New York. H. F. FRENCH, Assistant Secretary. (5157.) Weighing salt-Fees for. TREASURY DEPARTMENT, March 17, 1882. SIR: In response to your letter of the 14th instant, submitting a communication from the surveyor at your port, in relation to the circular of this Department, No. 24, March 2, 1882, charges for weighing salt, you are informed as follows: 1. When salt is required to be weighed at the expense of the owner, agent, or consignee, the compensation of the weigher or assistant weigher superintending the weighing, for the time employed, will be included in the expense of such weighing collected from the owner, agent, or consignee, under the said circular. 2. After careful consideration, the conclusion was reached that no fee could be established which would satisfactorily approximate the expense of weighing salt at the different ports of the United States, owing mainly to the different rates for labor, and the Department must decline to disturb or modify the circular of the 2d instant. Very respectfully, COLLECTOR OF CUSTOMS, Boston, Mass. H. F. FRENCH, Assistant Secretary. (5158.) Common carriers-Approval of bond of James Mackintosh. TREASURY DEPARTMENT, March 17, 1882. SIR: The Department has received your letter of the 10th instant, transmitting the bond in duplicate of James Mackintosh as a common carrier of dutiable appraised lumber and grain in bond between the ports of Buffalo, Tonawanda, and New York, in the State of New York. Said bond is hereby approved, and one copy herewith returned, to be placed on the files of your office. Under this bond the said James Mackintosh is authorized to transport dutiable appraised lumber and grain in bond between Buffalo, Tonawanda, and New York, in the State of New York, in the following manner, viz: In the canal-boat "Eva Carroll," and such other canal-boats owned or controlled by the said James Mackintosh, and plying on the Erie canal and the Hudson river betwenn the ports named, as may be hereafter authorized and designated by the Secretary of the Treasury. In every instance when other canal-boats than those owned by the said principal are used, such boats shall be distinctly marked "James Mackintosh." Very respectfully, COLLECTOR OF CUSTOMS, Buffalo, N. Y. H. F. FRENCH, Assistant Secretary. (5159.) Additional duties on charges added by appraiser, &c. TREASURY DEPARTMENT, March 18, 1882. SIR: The Department duly received your letter of the 27th ultimo, further in regard to the appeal (7895 g) of O. Lehman from your assessment of duties on certain merchandise imported by him. The merchandise was entered at an invoice value of francs....... 792. 60 To this amount was added, by the importer on entry Packing charges, francs.... Shipping charges, francs 15.00 10.00 24.55 842. 15 |