sections 4219 and 4225 R. S. The duties here involved had been collected prior to that date.

The Standard Oil Co. contended that these duties were improperly imposed and collected for the reason that the Free City of Danzig imposed no discriminating or countervailing duties against vessels of the United States, and applied to the Secretary of Commerce for a refund of such duties. The question was submitted to the Attorney General, and in an opinion dated October 30, 1925, (34 Ops. Atty. Gen. 577) he decided that such duties collected prior to the issuance of the Presidential Proclamation of May 6, 1921, were legally collected and that a refund was not authorized.

By the act of December 11, 1928 (c. 21, 45 Stat. 2034), Congress authorized the Court of Claims to hear and determine the claim of the Standard Oil Co., and the decision of that court, dated May 13, 1933 (77 Ct. Cls. 206), was to the effect that the duties imposed prior to the date of the Presidential Proclamation were legally assessed and collected. It was the contention of the Standard Oil Co. that the fact that the Free City of Danzig imposed no discriminating duties on American vessels or cargoes made the imposition and collection of the duties and light money referred to above illegal even in the absence of the Presidential Proclamation authorized by section 4228 R. S. It was further contended that proof that no discriminating duties were imposed upon vessels of the United States by the Free City of Danzig was before the President on June 29, 1919, when provision was made for the establishment of that city in the Treaty of Versailles. The court, however, took the position that the decision as to what constituted satisfactory proof and when such proof had been furnished was for the determination of the President and that under the law the suspension of these duties could not be effective prior to the issuance of the Presidential Proclamation required by section 4228 R. S.

The facts of the case are more fully discussed in the opinion of the Court of Claims, a copy of which is enclosed for the information of the committee.

In view of the fact that the claimant has had its day in court, which decided the issues on the merits and held that the taxes had been validly imposed, no reason appears why a refund should be allowed by legislative action. quently, I do not favor the enactment of the bill.

Sincerely yours,

O

Conse

HOMER CUMMINGS,
Attorney General.

D. X. SANDERS

APRIL 21, 1941.-Committed to the Committee of the Whole House and ordered to be printed

Mr. McGEHEE, from the Committee on Claims, submitted the

following

REPORT

[To accompany H. R. 4068]

The Committee on Claims, to whom was referred the bill (H. R. 4068) conferring jurisdiction upon the United States District Court for the Eastern District of Oklahoma to hear, determine, and render judgment upon the claim of D. X. Sanders, having considered the same, report favorably thereon without amendment and recommend that the bill do pass.

The purpose of the proposed legislation is to authorize D. X. Sanders, of Sallisaw, Okla., to enter suit in the United States District Court for the Eastern District of Oklahoma for damages allegedly sustained by him in July or August 1919 as the result of the injury and death of approximately 150 head of cattle by reason of the alleged neglect of an inspector of the Bureau of Animal Industry, Department of Agriculture, in the dipping of said cattle for the elimination of infested ticks, preparatory to interstate shipment.

An identical bill was considered by the House in the Seventy-sixth Congress, and same passed the House on May 29, 1940.

The facts are fully set forth in House Report No. 1855, Seventysixth Congress, third session, which is appended hereto and made a part of this report.

[H. Rept. No. 1855, 76th Cong., 1st sess.]

STATEMENT OF FACTS

This proposed legislation would authorize D. X. Sanders, of Sallisaw, Okla., to enter suit in the United States District Court for the Eastern District of Oklahoma for damages allegedly sustained by him in July or August 1919 as a result of the injury and death of approximately 150 head of cattle by reason of the alleged neglect of an inspector of the Bureau of Animal Industry, Department of Agriculture, in the dipping of said cattle for the elimination of infested ticks, preparatory to interstate shipment.

H. Repts., 77-1, vol. 2-79

In July or August of 1919 claimant had approximately 700 head of 4- and 5-yearold steers pastured in Sequoyah County, Okla. One hundred and fifty head of said steers were to be shipped to Kansas City, Mo., and in accordance with the Government regulations, claimant made arrangements to have said cattle dipped under the supervision of an inspector of the Bureau of Animal Industry, preparatory to interstate shipment. The cattle were driven, in the early morning hours, about 1 mile to the dipping vat, where they were dipped under the direction of the Government inspector and returned to claimant's pasture. The following morning 26 of the cattle were dead and 7 others later died. The remainder were in such poor condition that claimant alleged he suffered a loss of as much as 3 cents per pound in their sale.

The Department of Agriculture denies any responsibility for the results of the dipping of these cattle and maintains that the weather on the day of the dipping was extremely hot and sultry, which fact, together with the distance that claimant's cattle had to be driven, was the cause of their injury, and not the strength of the arsenic mixture used for the dipping of the cattle to eliminate ticks. On the other hand, claimant's evidence maintains that the cattle were driven but 1 mile in the early morning hours; that claimant protested to the Government inspector that the mixture in the vat was too strong, which fact he determined from the reaction of the cattle that had been dipped; that the Government inspector advised him that the mixture was not too strong, and that he must continue with the dipping if he wanted a certificate which would entitle him to ship said cattle; that these same cattle were well known to various persons in the neighborhood and were not wild and unruly cattle; that many of them had previously been dipped without injury; and that the first few of said cattle that were dipped were the least injured, showing that the mixture was stirred up by the cattle; and that it was obvious from the reaction of the cattle immediately after they had been dipped that said mixture was much too strong for the desired purpose.

There seems to be no question but that the cattle died and were injured from arsenical poisoning. Government inspectors test the dipping mixture to see that it is of the prescribed strength, although there is no information on file in this case showing whether or not this inspector actually did test the solution. Your committee has heretofore had similar claims wherein it has been alleged that the death and injury to certain cattle were the result of negligence on the part of the Government officials in using a solution too strong for the safety of the animal. We feel that such claims are virtually impossible of determination here and in all previous cases jurisdiction has been conferred on the proper United States district court to hear and determine the claim, without intervention of a jury. (See Private Laws 137 and 142, 73d Cong., and H. R. 1851, 75th Cong.) In view of the evidence presented on behalf of claimant, it is our conclusion that he is entitled to similar treatment by passage of this bill awarding him at least a day in court, and passage is accordingly recommended.

Attached hereto is the report of the Department of Agriculture and other material papers.

Hon. AMBROSE J. KENNEDY,

DEPARTMENT OF AGRICULTURE,
Washington, May 8, 1937.

Chairman, Committee on Claims, House of Representatives.

DEAR MR. KENNEDY: Further reference is made to your letters of March 4 and 29, relating to a bill (H. R. 1185) for the relief of D. X. Sanders, of Sallisaw, Okla., for damages alleged to have been sustained when in July 1919, certain cattle owned by him were dipped under the supervision and direction of an inspector of the Department of Agriculture in a vat containing too strong a disinfectant mixture, and requesting that your committee be furnished with information relative to this claim and with an opinion as to its merits. In reply you are advised that such investigation of this claim as was possible at this late date was made by the Bureau of Animal Industry and the following information secured:

It appears from the Bureau records that on August 2, 1919, at the request of Mr. D. X. Sanders, Roy T. Fisher, a veterinary inspector of this Department, supervised the dipping of 198 cattle owned by Mr. Sanders, preparatory for their interstate shipment from Sequoyah County, Okla. These cattle were dipped in an arsenical solution that a few days before had been used in the dipping of cattle of that vicinity in connection with the regular tick-eradication work then

under way in Sequoyah County, and on August 4, 1919, 2 days after the dipping of the Sanders' cattle, the dipping solution which had been used was tested by a county inspector and found to be below the strength usually required in eradication work. No cattle, other than the Sanders cattle, which were dipped in this solution were reported injured in any way. It also appears that the day on which the Sanders cattle were dipped, August 2, 1919, was extremely hot and sultry. The Weather Bureau records the temperature on that date as 106°. The Sanders cattle had to be driven a distance of at least 11⁄2 miles to and from the dipping vat. They are reported to have been rather wild and probably became overheated during the treatment.

From available information it therefore appears that the unfortunate results following the dipping of the Sanders cattle were due to these circumstances and not because the vat contained too strong a disinfectant mixture as claimed in the bill. It is therefore believed that the bill is without merit.

Sincerely,

HARRY L. BROWN, Acting Secretary.

AFFIDAVIT OF D. X. SANDERS

STATE OF OKLAHOMA,

Sequoyah County, ss:

D. X. Sanders, being first duly sworn on oath, deposes and says: That he is a resident of Sequoyah County, Okla., and has been for the past 60 years; that during the year 1919 he owned approximately 700 head of 4- and 5-yearold Hereford steers which he kept and pastured in Sequoyah County, Okla.; that he had employed a man by the name of Jess Reynolds who looked after and cared for these cattle; that in July of 1919 he decided to ship 150 head of these steers, which weighed approximately 800 pounds, to the Kansas City market at Kansas City, Mo.; that he made arrangements with a Dr. Fisher, who was the Federal Government inspector in Sequoyah County, Okla., to dip these steers at the W. L. Sharp dipping vat near his home in the latter part of July 1919; that it was necessary before these cattle could be shipped to market to have a clearance certificate from the Government inspector, Dr. Fisher, before the cattle could be shipped from the State, and in order to obtain this clearance certificate it was necessary to dip these cattle under the direct supervision of the Government inspector; that he, with the assistance of Jess Reynolds, drove these cattle approximately 1 mile to the dipping vat, where they were dipped under the supervision and direction of the Government inspector, Dr. Fisher; that after a few of these cattle had been dipped, from the actions of the cattle after going through the vat, he protested to the Government inspector that the mixture in the vat was possibly too strong; that Dr. Fisher, the inspector, instructed him that the mixture was not too strong and to continue with the dipping if he wanted a clearance certificate so that he might ship the cattle to market; that the entire 150 head of cattle were dipped and were then driven back approximately 1 mile to his pasture; that the next morning 26 head of the steers which had been dipped were dead and that 7 other head later died; that before the cattle were dipped they were in good smooth condition; that after they were dipped the hair and the flesh in large spots about the tender parts of their bodies came off them; that he later shipped 90 head of the steers to market and because of their scarred-up condition, which condition was a result of the dipping under the supervision of Dr. Fisher, that he received 2 cents per pound for the steers when the average price of the same kind of steers in good condition was 7 cents per pound; that the other 27 head were practically a total loss to him because it was necessary to keep and feed them for over a year's time and then they were sold at prices ranging from one-tenth to one-fourth of the original value; that he suffered their loss as a result of the dipping of said cattle under the supervision and direction of the Government inspector in the sum of $5,928.

Subscribed and sworn to this 10th day of October 1936. [SEAL]

My commission expires August 28, 1940.

D. X. SANDERS.

AMELIA PATTERSON, Notary Public.