concurrence">

CONCURRING OPINION

Garrett, Judge,

specially concurring: Did I believe T.D. 39767 to be a crucial factor in this rather perplexing controversy, my conclusion might be different, because I am not convinced that the provision thereof requiring the importer to pay charges for the tests provided “when there is a difference of opinion between the importer and the appraiser as to the estimate of clean content” is valid. I am of the opinion, however, that under the facts of record, there is no occasion to pass upon that question.

The case is peculiar in that appellants, while insisting before us, as they did before the trial court upon the rehearing there granted, that the said T.D. 39767 is invalid and therefore not binding upon them, at the same time claim to have proven that the tests made by them in their own scouring plant were in substantial compliance with its terms, so far as the method of scouring is concerned.

Assuming, without holding, that this was satisfactorily established, the fact remains that such tests were made after the wool had been released from customs custody, with duty assessed, and presumably paid, upon the basis of clean content fixed by the local appraiser, the correctness of which had not been challenged, or in any wise objected to, so far as the record shows, while the merchandise was in such custody.

Sound public policy would seem to require that the clean wool content be determined before there be a release of the wool by the customs officials, or at least that any issue in regard to such content should be raised during that period and made in some way to appear. *454It certainly cannot be conducive to a sound administration of the customs laws to permit an importer to withdraw merchandise, the dutiable amount of which is to be determined as is that of wool, make his own tests entirely outside Gpvernment supervision — indeed without any knowledge on the part of Government officials that he is doing so' — and, upon making proof as to what those tests show, have the dutiable quantity determined by such evidence, especially without having ever theretofore indicated, in any manner, any difference of opinion as to the quantity officially declared by those charged with the performance of that duty on behalf of the Government.

Even if it bo conceded that such regulations as may have been in force at the time this controversy arose were not happily drawn and that methods of procedure were not satisfactorily defined, the fact still remains that the appraiser had a statutory duty to perform with respect to finding clean content, and tha,t, in this case, he tried to perform that duty. The correctness of his actions was not questioned until the Government had lost all control over the merchandise itself and all opportunity to test it, according to the regulations, or in any other manner, for the ascertainment of the correct facts, if the original findings of fact were found to be erroneous.

There was some intimation during argument of the case that when the local appraiser determined that the amount was greater than the entry claim, the difference of opinion became manifest and that it was the duty of the appraiser then and there to invoke T.D. 39767 — in other words, that the burden of initiating action rested upon the proper Government official rather than upon the importers.

To this I cannot subscribe. In the very nature of things, the importers must have received notice that the entered estimated quantity was advanced by the appraiser. The contest here is solely over the question of amount; classification is not involved.

I cannot but feel that the issue as to this amount should have been raised in some manner by the importers while the wool was in customs custody and it is not incumbent upon the court, as I view the question, to declare here how it might properly have been raised. The courts have no authority to make regulations for the administrative officials.

It is not meant to indicate a belief that it was necessarily incumbent upon the importers at that time to question the validity of T.D. 39767, and most certainly it was not incumbent upon them to invoke it if, as I strongly feel, it was invalid, at least in part — a part which it must be said seems quite vital to the integrity of the whole.

But the said Treasury decision was not invoked by anyone. So far as the record shows, it was never mentioned until the collector made his report to the United States Customs Court, and hence it was never a factor in the proceedings before the administrative *455officials. No finding of quantity was based upon it, and the suit here is not for the recovery of any duty resulting from its application.

Citation profile

How this case has been treated — in progress