Doap Leun Hong Co. v. United States

Leneoot, Judge, delivered the opinion of the court: Appellants, in 1927 and 1928, imported certain merchandise at the port of San Francisco which was classified and assessed for duty by the collector under paragraph 34 of the Tariff Act of 1922 as drugs advanced in value at ten per centum ad valorem. Appellants protested, claiming the same to be properly dutiable as ■crude drugs under paragraph 1567, or, in the alternative, as crude vegetable substances under paragraph 1622 of said act. Upon the trial the lower court overruled the protests and entered judgment accordingly. From such judgment this appeal is taken. The competing paragraphs are as follows: Par. 34. Drugs, such as barks, beans, berries, buds, bulbs, bulbous roots, ■excrescences, fruits, flowers, dried fibers, dried insects, grains, herbs, leaves, lichens, mosses, roots, stems, vegetables, seeds (aromatic, not garden seeds), •seeds of.morbid growth, weeds, and all other drugs of vegetable or animal origin; any of the foregoing which are natural and uneompounded drugs and not edible and not specially provided for, but which are advanced in value or condition by — 315 — shredding, grinding, chipping, crushing, or any other process or treatment whatever beyond that essential to the proper packing of the drugs and the prevention •of decay or deterioration pending manufacture, 10 per centum ad valorem: Provided, That the term “drug” wherever used in this Act shall include only those ■substances having therapeutic or medicinal properties and chiefly used for medicinal purposes: And provided further, That no article containing alcohol shall toe classified for duty under this paragraph. Pab. 1567. Drugs such as barks, beans, berries, buds, bulbs, bulbous roots, ■excrescences, fruits, flowers, dried fibers, dried insects, grains, herbs, leaves, lichens, mosses, logs, roots, stems, vegetables, seeds (aromatic, not garden seeds), seeds of morbid growth, weeds, and all other drugs of vegetable or animal •origin; all of the foregoing which are natural and uncompounded drugs and not edible, and not specially provided for, and are in a crude state, not advanced in value or condition by shredding, grinding, chipping, crushing, or any other process or treatment whatever beyond that essential to the proper packing of the ■drugs and the prevention of decay or deterioration pending manufacture: Provided, That no article containing alcohol shall be admitted free of duty under this paragraph. Pak. 1622. Moss, seaweeds, and vegetable substances, crude or unmanu-factured, not specially provided for. The classification of the collector that the involved merchandise is a •drug advanced is presumptively correct. In order for the collector to make the classification which he did make in this case it was necessary for him to find, first, that the merchandise here involved was a drug and, second, that it was advanced, bringing the drug within the provisions of paragraph 34. In the case of United States v. Schering et al., 123 Fed. 65, the court said: Where the classification of merchandise depends upon the existence of specified descriptive characteristics, it is to be presumed in favor of a correct classification that those characteristics were found by the officers of customs. * * * The foregoing was quoted with approval by this court in the case of Pantasote Co. v. United States, 1 Ct. Cust. Appls. 47, T. D. 31008. Upon the trial below appellants did not in any way attempt to challenge the finding of the collector that the merchandise in issue was a drug, but sought only to establish that it was crude and not advanced. We think appellants had a right to accept the finding of the collector that the merchandise in issue was a drug, and it was unnecessary for them to prove that fact in support of their claim for classification under paragraph 1567. Therefore, if there were no other evidence in the case, and appellants established that the merchandise in issue was crude and not advanced, their protest should have been sustained. The Government, however, had the right to establish upon the trial, if it could, the real character of the merchandise in issue, and was not foreclosed from doing so by the classification made by the collector. The Government here claims that the merchandise in question is not a drug, but that it is a food, and in support of such — 316 — contention relies apon a certain bulletin of tbe United States Department of Agriculture, offered in evidence upon tbe trial by tbe Government and received over tbe objection of appellants. Tbe admission of tbis bulletin in evidence is assigned as error by appellants. This bulletin appears to have been issued by tbe Office of Experiment Stations of the United States Department of Agriculture, and is entitled'— A Description of Some Chinese Vegetable Food Materials and Their Nutritive and Economic Value, by Walter C. Blasdale, instructor in chemistry, University of California. The letter of transmittal by the director of tbe Office of Experiment Stations is as follows: Washington, D. C., July IB, 1899. Sir: I have the honor, to transmit herewith a report by Walter C. Blasdale, instructor in chemistry at the University of California, describing some Chinese vegetable food materials and their nutritive and economic value. These foods are used to a considerable extent by the Chinese population in San Francisco and other cities in the United States, and most, if not all, of them are staple articles of diet in China and the Orient. It seems probable that some of the vegetables may become generally and favorably known in the United States. Very little information has been hitherto available concerning many of these materials, and it is believed the report is a useful contribution to the knowledge of the food of mankind. The report is respectfully submitted, with the recommendation that it be published as Bulletin No. 68 of this office. Respectfully, A. C. True, Director. Hon. James Wilson, Secretary of Agriculture. Upon tbe trial, appellants’ witness was asked upon cross-examination if be could identify certain Chinese characters found in said bulletin. He replied that be could and, upon their being shown to him, stated that said characters described in Chinese tbe plant from which tbe merchandise here in issue is derived and gave a pronunciation of such characters, which is represented in English in tbe record by tbe words "Cheu shat, ” which, we assume, is the name given to such merchandise by Chinese. The Government makes some contention that the witness further identified the said merchandise by giving its scientific name as euryale jerox, but it is clear to us that his testimony should not be so construed. The testimony that the Government relies upon to support this contention is as follows: Q. Do you know the technical name of the plant from which Exhibit 2 comes?— A. No. Q. Would you know the Chinese character representing the name of that plant?- — -A. I don’t know. — 317 — Q. I am asking if you would recognize the Chinese characters showing the name of that plant if you saw it? — A. Yes, sir; I can. Q. Can you identify it? — A. Yes, sir. Q. Is that the name of it? — A. Yes, sir. Judge Cline. What does “that” mean? Put on the record that counsel for the defendant shows a picture to the witness and calls his attention to .a certain thing. By Mr. Canty: Q. Is what you just identified as the Chinese name of the plant, the name as follows: Euryale ferox? — A. Yes, sir. Q. What is that name? A. Cheu shat. It is clear to us from the foregoing testimony that the witness did not intend to testify as to the scientific name of the merchandise here in issue. He had before stated that he did not know it and, when he was asked to give the name of the merchandise, he answered that it was “cheu shat.” In his previous testimony he had stated that the name of the seed, the kernel of which is the merchandise in issue', is “siu sut.” If the witness had identified the merchandise in issue as having the scientific name of euryale ferox, then we might resort to dictionaries and scientific works to aid us in arriving at the meaning of such scientific name. However, the Government contends that the bulletin in question is admissible for the purpose of proving that merchandise known as “cheu shat” is known by the scientific name of euryale ferox, because the author so states. Inasmuch as we have found that the witness did not identify the merchandise as euryale ferox, the question arises as to whether we may accept the statement of the author of the bulletin that the scientific name of the plant designated by the witness as “cheu shat” is euryale ferox. It does not appear that the author of this bulletin is an officer of, or employed by, the Government, and we think that the letter of transmittal, heretofore quoted, affirmatively shows that it was not issued as a statement of facts by officials of the Government but only purports to give the opinions and conclusions of the author of the bulletin. For this reason, we think that the bulletin has no greater evidentiary value, with respect to the facts stated therein, than if it had been privately published by the author. We do not think it would be contended that, if this bulletin had been privately published, it would have been admissible in evidence for the purpose of establishing a fact requiring proof. “Cheu shat” or “siu sut” being the English representations of the Chinese pronunciation of Chinese characters, we do not think that we can take judicial notice of their meaning, and, in order to establish that the merchandise here in issue comes from a plant which was scientifically known as euryale ferox, it was necessary to prove it as any other fact. The mere statement in the bulletin that the scientific name of the plant known as “cheu shat” is euryale ferox is not proof of the fact. We may — 318 — observe that we do not find the term “cheu shat’’ or “siu sut,” or any similar words, in any dictionary or scientific publication or reference. If we could take j udicial notice of the meaning of said words-“cbeu sbat” or “siu sut,” then the statement in said bulletin that the' scientific name of the said words represented by the Chinese characters-in the bulletin might be considered by the court, but only as an aid to the understanding of the court of the meaning of such words, and not as direct proof that their scientific name is euryale ferox. United States v. Felsenthal & Co., 16 Ct. Cust. Appls. 15, T. D. 42713. Inasmuch as we can not take judicial notice of the meaning of said words, it seems to us that the statement of the author of the bulletin that the scientific name of the plant described by the witness as. “cheu shat” is euryale ferox should be regarded as pure hearsay,, and for that reason is inadmissible as evidence to establish such claimed fact. In the case of United States v. G. Hempstead & Son, 153 Fed. 483, it was held in a protest case that an official report by a Government chemist, which was made at the request of the Board of General Appraisers and related to merchandise involved in a case pending-before the board, was incompetent because ex parte, Dot under oath,, and not subject to cross-examination. To the same effect is the case of Missouri, K. & T. Ry. Co. v. Dale Bros. Land & Cattle Co., 179 S. W. 935, involving the question of the admissibility of a bulletin of the United States Department of Agriculture. We can find no statutory law giving any evidentiary value, in protest cases, to statements of fact of which the court can not take-judicial notice in a publication of this character, that is, statements made by a private citizen on his own initiative and not at the instance of the Government, and we know of no rule of evidence that permits their introduction for such purpose. We are constrained to hold that there is no evidence that the scientific name of the plant from which the merchandise in issue comes is euryale ferox, and it is therefore immaterial as to what the meaning of that scientific term may be, or what the bulletin states the uses of euryale ferox are, assuming that the bulletin is competent evidence on this point. The Government further contends that the special report of the appraiser to the collector, having been made within the time within which the collector was authorized to reliquidate the entry, rebuts the presumption of correctness of the collector’s classification. The material portion of said special report reads as follows: * * * Shiu sut (Inv. #11944, Cs. #31-6) is a nut resembling a lotus nut but smaller in size and is used by the Chinese in making or flavoring soup. In its imported condition it is split and was returned for duty as “prepared vegetable” — 319 — at 35 per centum under paragraph 773, following the decision of the department in T. D. 36171. In T. D. 43384 the Customs Court, upon a newly tried case, held sue sitt (shiu sut) to be dutiable as a drug advanced at 10 per centum ad valorem under paragraph 34. No sample submitted. We do not think that this report of the appraiser can be resorted to for the purpose of impeaching the classification made by the collector, even if it could be so construed. Apparently, the appraiser was of the personal opinion that the merchandise was a food, but he called the attention of the collector to the fact that the United States Customs Court had rendered a decision that like merchandise should be held to be a drug advanced. Upon inspection of the invoices, we find that the appraiser's notations with respect to this merchandise are, in red ink, “Prep. Vegt.” These words are stricken out, there being a red line drawn through them, and over the same, also in red ink, is found the following: “Drug Adv.” It is apparent, therefore, that the original description of the merchandise furnished to the collector by the appraiser, and upon which the collector liquidated the entries, was that the merchandise consisted of drugs advanced, and we do not think that the special report, upon which the Government relies, indicates that the appraiser had come to a different conclusion with respect to the proper description of the merchandise for duty purposes. The effect of his report is that, similar merchandise having been judicially determined to be a drug, the merchandise in issue is likewise a drug. However, assuming that there were conflict between said special report of the appraiser and the collector's classification, which we hold there is not, it would seem, under the decision of this court in the case of United States v. Gandolfi, 12 Ct. Cust. Appls. 455, T. D. 40615, that the collector had the right to reject a description of the merchandise furnished him by the appraiser, and that, in such case, the report so furnished could not be considered as presumably correct. We hold, therefore, that there is no competent evidence in the record overcoming the presumption of correctness of the fact found by the collector, that the merchandise was a drug, and the only question in issue, as appears from the record, is whether said drug is advanced or crude. A sample of the merchandise was introduced in evidence as Exhibit 2 and is before this court. It appears from the testimony that the merchandise in issue consists of split and broken kernels of seed from a plant belonging to the water-lily family; that the seeds, while green, are cracked by a bamboo mill for the purpose of extracting the kernels from the hulls; that in such process the kernels are incidentally split or broken, and that there is no purpose, in the operation, of either splitting or breaking them, nor is there any advantage in their use in their being so split or broken. — 320 — Clearly, the shell is no part of the drug. It is evident that the only purpose of the cracking process is to get the drug by itself. It has been uniformly held that such a process does not advance an article from its crude state. United States v. Sheldon & Co., 2 Ct. Cust. Appls. 485, T. D. 32245. We do not deem it necessary to discuss further the question of whether merchandise, which has undergone such a process as the testimony in this case reveals, is advanced, for this precise question was decided in the negative by this court in the case of Tong & Co. v. United States, 15 Ct. Cust. Appls. 153, T. D. 42218, wherein it was held that a certain Chinese drug, known as mok kar, should be classified as a crude drug, it being shown that nothing had been done to it except splitting and drying. ' We find, therefore, that the evidence in the case overcomes the presumption of correctness of the collector’s classification that the merchandise in issue is a drug advanced, and establishes that it is, in fact, crude, and is free under said paragraph 1567, as claimed by appellants. The court, below, in its opinion, undertook to take judicial notice of an assumed lack of credibility of a certain class of witnesses, which was clearly erroneous, but, in view of the conclusion we have reached, it is unnecessary to discuss it. For the reasons stated, the judgment of the United States Customs Court is reversed, and the cause is remanded for further proceedings not inconsistent with the views herein expressed.