George Shiras, Jr.

“ Very rarely, if ever, is there power in the judiciary to enter into all the questions affecting the legality of a charge for taxes, and therefore, in general, a statute, even though not in express terms mandatory, is treated as being so if its literal observance might afford substantial protection to the party complaining, and a failure of such observance by an officer is considered to render his act void. ”

“ Congress is, of course, presumed to be familiar with the fact that leaf tobacco is divided into classes, or is subjected, before being placed in bales, to some kind of an assortment, and a knowledge of the similarities and differences which are to be found in a collection of leaves of a class doubtless furnished the reason for the adoption of the percentage test. ”

“ The question of the value of the goods could not be raised in an action against the collector, and an attack upon the legality of the appraisement, for the purpose of having it declared illegal, at the value stated in the invoice, would be at the value stated in the invoice, would be the only means of redress by a court for an illegal exaction of duties based upon an erroneous valuation. The duty chargeable upon leaf tobacco was not fixed with reference to its value, but to certain prescribed characteristics of size, fineness of texture, and weight. ”

“ The importers insist, on the other hand, that inasmuch as the examination may have the effect of fixing a higher duty upon a given invoice of tobacco than that collectible upon leaf tobacco of the kind more extensively imported, the importer might be injured if the characteristics of the tobacco necessary to justify the exaction of the higher tax were determined by an examination different from that prescribed by section 2939, which enactment, therefore, they believe to be intended as well for the protection of the importer as the government, and hence mandatory. ”

“ If tobacco is imported with the stems removed, each piece, or 'side,' as it appears to be called by dealers and manufacturers, would of necessity be treated as independent, for there would be no means of knowing with certainty what parts were originally together in one leaf. In applying the test of size, therefore, the size of either side of the leaf is to be looked to, and the evident requirement of the statute is that 85 per cent. of half leaves, or 85 out of 100, are to be of the requisite size and necessary fineness of texture for wrappers. ”

“ Doubtless in the hands classed as containing tobacco dutiable at the lower rate there would be leaves haing all the requisites of the higher grade, while in the hands ascertained to be taxable at the higher rate would be leaves of the lower grade. This might have the effect of making a division of tobacco of one commercial class into two grades with respect to taxation,-a division which we do not believe to have been contemplated by the statute. ”

“ At most, a neglect of such provisions operates to no greater disadvantage to a party than to subject him to the necessity of bringing an action which he might not have felt impelled to bring if the tax had been ascertained in the manner prescribed. ”

“ Assuming that the importers, in testifying concerning the size and fineness of texture of the tobacco, had in mind the proper test when speaking of the percentage of the surface suitable for wrappers, we must take their evidence to mean that only 5 of the 10 bales in controversy contained tobacco of which less than 85 per cent. ”

“ In other words, each of 85 half leaves out of 100 half leaves must contain a portion, sufficiently fine in texture, of the requisite size to make at least one wrapper. Eighty-five to make at least one face of the single leaf is not intended, for in that view any single leaf large enough for a wrapper would be, in respect to size, 100 per cent. ”

“ If the first four hands drawn should be entirely uniform, we probably would not draw any more, and in any event we would be hardly likely to draw more than ten hands.'
If, then, a bale, or other separate and concrete quantity of leat tobacco, contained only leaves of such uniformity of character as to be, in their collective form, of one class, the bale, or other separate collection, would be the unit contemplated in the percentage and weight tests of paragraph 246. On the other hand, if the bale contained tobacco of two classes, the unit would be the ascertained quantity of either class. ”

“ It appeared from the invoice and the testimony of the examiner of tobacco at the appraisers' stores, called as a witness for the importers, that upon the entry of the tobacco the collector had designated 5 of the 429 bales for examination at the public stores; that subsequently, upon the request of the appraiser, 25 additional bales, and no more, had been sent to the public stores for examination ”