United States v. Masson

Barber, Judge, delivered the opinion of the court: Thirty-seven cases of matches were taken possession of by the collector at the port of Baltimore as unclaimed and, as required by law, were caused by him to be transported to the Government warehouse, there to be stored until claimed and entered or otherwise disposed of. The appellee thereafter duly claimed and entered the merchandise and was thereupon compelled to pay a drayage charge of 18 cents per case for the transportation of each of the 37 cases to the Government warehouse. Protest was filed against the payment of this charge, it being claimed that under Eevised Statutes 2965, which is hereinafter referred to, the charge was excessive. At the hearing before the Board of General Appraisers the appellee testified that he was an importer of matches at Baltimore and had been so engaged for two or three years; that he had obtained the drayage of like matches during that time for practically the same [364] distance that the Government transported these for 6 cents per case, and that he had received bids from various local concerns, among them the one under contract with the Government, as hereinafter set forth, to do this drayage at this price, although his work had been done by another company during all of the time. Ho was asked this question, “What information or knowledge have you of the rates charged by other, concerns in Baltimore?” and his answer was, “For a similar haul they would be glad to get 6 cents per case,” and in another connection he said that draymen in Baltimore figured their charges according to the di stance — the longer the haul the larger the price, the merchandise being the same in each case. All this testimony came in without objection and is not contradicted by the evidence offered on the part of the Government. Its witness, the public storekeeper at Baltimore, testified that the contract between the Government and the drayage company provided for a flat rate of 18 cents upon every package transported by the company for the Government at Baltimore, regardless of the distance and also regardless of the size or weight of the package. This contract Was made by authority of the Secretary of the Treasury under the provisions of section 25 of the act of June 22, 1874 (18 Stat., 186, 191), hereinafter more specifically referred to, and as directed- in the Customs Regulations of 1908, article 833, which is based upon the last-named statute, and provides for the annual letting of drayage contracts to the lowest responsible bidder after not less than 30 days’ notice. The Board of General Appraisers found upon the evidence that 6 cents a package would be the commercial charge for transporting the packages in this case the distance they were transported by the Government and sustained the protest. Upon argument here the Government contends, in substance, that this finding is not warranted by the evidence and should be reversed, as within 'the rule that obtains in such cases, that a finding of fact may be reversed here if upon an examination of the record it is found to be wholly unsupported by or contrary to the weight of evidence. Various reasons, are alleged to support this contention, among others that the unsupported testimony of appellee, a party litigant, and having a personal interest in the determination of the issue which he himself made, is not sufficient either to overcome the presumption of correctness of the collector’s action or to support a finding as to what the regular rates in fact are. As to this particular argument, it may be observed that while under the law it is presumed that the collector has acted- correctly, this is not a conclusive presumption, but may be overcome by evidence possessing sufficient probative force to accomplish that result. We know of no rule of law in-force here that deprives the testimony [365] of a party in interest of the requisite probative force to accomplish this purpose, simply because Tie is a party in interest. As to this, as well as the other objections to this finding of fact, we think it may be said that the evidence of record fairly supports the finding. But the Government further contends that because, under its flat-rate contract with the drayage company, it must pay 18 cents each for the transportation of the 37 cases involved here, it must be permitted to recoup itself for that charge by requiring the appellee to pay that sum. The right to do this depends upon the construction to be given to section 2965 of Revised Statutes, the material provisions of which we quote: Unclaimed merchandise * * * may be stored in any public warehouse, * * * and all charges for storage, labor, and other expenses accruing on any such merchandise, not to exceed in any case the regular rates for such objects at the port in question, must be paid before delivery of the goods on due entry thereof by the claimant or owner. * * * It is argued on behalf of the Government that under the' provisions of section 25 of the act of June 22, 1874, which we quote: That public cartage of merchandise in the custody of the Government shall be let after not less than thirty days’ notice of such letting to the lowest responsible bidder giving sufficient security, and shall be subject to regulations approved by the Secretary of the Treasury— that drayage contracts must be let to the lowest bidder; that long experience has demonstrated that it is best for the Government under all the circumstances to make a flat-rate contract; and, further, that no other contract is practicable. It is also said that if, for instance, the package were a large one and the distance long, it would be a benefit to importers circumstanced similarly to the importer here to pay the flat rate, assuming apparently that in no case the Government would or could charge more than it had paid for the transportation of the merchandise under its contract. These various considerations, while attesting the assiduity of counsel, seem hardly to be of controlling influence here. The statute, as we have seen, provides that the charges in a given case shall not exceed the regular rates therefor at the port in question, and it has been found by the board here that the commercial rate is 6 cents for the same transportation for which the Government has assessed the importer 18 cents. We think the language of the statute implies the regular commercial or business rates obtaining for like work at the port where the charges aré made and this evidently was the view which the Treasury Department at one time entertained. In a ruling of the department under date of June 2, 1891 (T. D. 11250), the question of drayage charges at Springfield, Mass., was considered, and the customs officers at that port were therein advised that in the absence of any contract for public cartage there they would, in case the law gave them a right to make any cartage [366] charge, exact such as were not above “those usually prevailing at your port.” While in this ruling no express reference is made to section 2965, Revised Statutes, yet the subject matter of the decision seems to have required that it must have been in the mind of the Assistant Secretary of the Treasury who made the ruling. In G. A. 7163 (T. D. 31271), decided in 1911, the Board of General Appraisers had before it a claim made by the appellee here almost identical with the one now before us and which it sustained. We think it is consonant with reason to say that the rates contemplated by section 2965 are the regular commercial or business rates charged for like work at the port where the services are rendered, and that no other construction thereof can obtain. If it is for the best interests of the Government to let its cartage contracts upon the flat-rate basis, and the record in this case does not show whether such is or is not the fact, although it may be presumed, nevertheless, we see no practical or other objection to requiring the Government to charge the regular commercial or business rates prevailing at a given port for the same services. It would seem that if in a particular case this flat rate was lower than such regular rates the Government would be justified in requiring importers to pay the regular rates; but however this may be, if such flat rate is higher than the regular rates we think the importer can not be required, in view of the statute, to pay a rate that is so much in excess of the regular rates as was charged here. The Government is always represented by its proper officers at ports of entry where these questions arise, so has the means to ascertain what the regular ratos are, and should in a reasonable way conform thereto. There is no showing that it is impossible or impracticable for the Government to make drayage contracts equally as advantageous to' it as a flat-rate contract, containing some reasonable provisions as to classification of charges based upon units of distance, or of weight, or both, and any contrary assumption is outside the record. Neither is there any showing that if required to make such contract the due administration of customs business would be interfered with or the fiscal operations of the Government impaired. But even so, importers have rights which the Government must regard. If it be assumed that section 25 of the act of June 22, 1874, was in its effect subsequent to section 2965 of Revised Statutes, no different results can follow. Section 25. does not refer in any way to section 2965, and can only operate to repeal or modify the same in event it is found inconsistent therewith. Repeal by implication of one statute by another is not favored and will not be indulged in unless it be found that the respective statutes can not both be given force and effect, in which case the later in date will prevail. [367] Applying that rule here, we find that section 2965 provides that “all charges for storage, labor, and other expenses” accruing on merchandise of the kind here “shall not exceed in any case the regular rates for such objects at the port in question.” This language is plain and easy of interpretation and results not only in uniformity, but in fair treatment of the objects mentioned in the section. Section 25 relates wholly to the letting by contract of public cartage of merchandise, which would include that referred to in section 2965, and is entirely silent as to what charges for said cartage shall be made to the owner of the merchandise transported thereunder. The provision for a charge not to exceed “regular rates for such objects at the port in question” can be given full force, and the Secretary of the Treasury be also untrammeled in letting the contract. Had it been intended that he should collect his flat contract rate against each particular object transported thereunder, whether reasonable or unreasonable, and if more than the commercial rate, it were easy for Congress to have so declared. We think it more consistent with reason to say that it was not intended to .thereby authorize the charge of thrice the regular commercial rates at the port in question, as is attempted here. Then, too, the construction contended for results in the withdrawal of the regular rate provision so far as cartage is concerned and still requires that as to storage and labor charges the regular rates shall be paid. This discrimination is not necessary to give full force and effect to section 25 and no good reason appears why it should be made. The argumentative illustrations of mail and railroad rates urged as supporting a different conclusion make equally in favor of the views we have expressed, if carried to their honest and logical end, because in every such case it is a matter of common knowledge that when the whole scope of the business is concerned, either distance, size, weight, or character of obj ects transported affects the charge, while the construction sought to be given the statute before us wholly disregards those conditions. Finally, it may be said that the question we have before us relates to the rate which may be charged under the statutes for transporting the particular merchandise, and it may well be doubted if the various last above-mentioned matters, as well as others we do not refer to, afford any basis for or support a determination of this case. The judgment of the Board of General Appraisers is affirmed.