We have frequently decided that "the public acts of public officers, purporting to be exercised in an official capacity, and by public authority, shall not be presumed to be usurped, but that a legitimate authority had been previously given or subsequently ratified."

That presumption exists in this case and we hold that the action has at least been subsequently ratified.

We are of the opinion that the power of the Assistant Secretary of the Treasury to designate the Assistant Attorney General to file the application for review may be gathered from the statute and the decisions. (Note Rev. Stat. secs. 245, 161 and 177; see also Fed. Stat. Annotated; vol. 9, p. 809, notes to sec. 245, and The John Shillito Co. v. McClung, 51 Fed. 868, at 872.)

We are not unmindful of the decision of this court reported in American Rug & Carpet Co. v. United States (T. D. 41762) on the so-called antidumping law of 1921, wherein it was stated that the power of the Secretary of the Treasury was exclusive in holding that the so-called "dumping" existed, and that such power was confined to the Secretary. The statement in that case was in the nature of a dictum, as the claim was not made in the protest and the case could have been and was decided on another ground. Aside from that, we think that case is distinguished from the case at bar in that in this case the question is one of court procedure, while the "dumping" case had to do with substantial property rights of the individual through extraordinary and unusual powers demanding strict con

struction.

We recognize that on questions of law the doubt, if any, is resolved in favor of the importer. In the proceeding complained of in this case the right of one party to his day in court is involved. If there is any doubt surrounding the question we think it should be resolved so as to preserve that right.

From the foregoing we are of the opinion that the motion should be and it is accordingly denied.

(T. D. 41947)

Canned sugar cane

YEE Wo & Co. ET AL. v. UNITED STATES

The merchandise consists of sugar cane which has been peeled, cut to length, steamed, and packed in sugar and water in hermetically sealed tins. Held, without definitely approving the classification made by the collector, that the merchandise is not properly classifiable under paragraph 503, tariff act of 1922.

United States Customs Court

Third Division

Protests 69764-G, etc., against the decision of the collector of customs at the port of San Francisco [Affirmed.]

(Decided January 12, 1927)

Frank L. Lawrence (Martin T. Baldwin of counsel) for the plaintiffs.

Charles D. Lawrence, Assistant Attorney General (William H. Futrell, special attorney), for the United States.

Before WAITE, ADAMSON, and YOUNG, Justices

YOUNG, Justice: The merchandise involved herein consists, according to the record, of sugar cane which has been peeled, cut to lengths, steamed, and packed in sugar and water in hermetically sealed tins. It was invoiced as canned sugar cane in protest 69764-G and as tinned sugar cane in protest 69766-G, and in both cases entered for duty as canned sugar cane. It was said by the appraiser in his report to be merchandise similar to that covered by the decision of the Court of Customs Appeals in T. D. 37992 and was assessed for duty at 20 per cent ad valorem under paragraph 1459 of the tariff act of 1922. It is claimed to be dutiable under paragraph 503 of the tariff act of 1922 at 75 per cent of the rate of duty applicable to manufactured sugar of like polariscopic test.

Paragraph 503, supra, which is in a form different from that found in the act of 1913, practically all of the provisions in the sugar schedule having been remodeled, reads as follows:

PAR. 503. Maple sugar and maple sirup, 4 cents per pound; dextrose testing not above 99.7 per centum and dextrose sirup, 11⁄2 cents per pound. Sugar cane in its natural state, $1 per ton of two thousand pounds; sugar contained in dried sugar cane, or in sugar cane in any other than its natural state, 75 per centum of the rate of duty applicable to manufactured sugar of like polariscopic test.

We are inclined to believe that the language of this statute was designed to cover articles where the sugar content was the only thing of commercial value. It deals with sugar and sugar content. This view is confirmed by the language which requires that the sugar content shall be ascertained by polariscopic test.

In so far as the merchandise at bar is concerned, the evidence without dispute is that a sugar solution was added to the sugar cane. How, then, could the sugar content of the sugar cane be accurately ascertained by a polariscopic test? Such a test would doubtless show a higher sugar content than that originally contained in the sugar cane. It surely could not have been the intention under paragraph 503, dealing with the subject of sugar and sugar in sugar cane, to impose a duty upon a higher sugar content than that originally contained in the sugar cane itself. Again, it is

noticeable that paragraph 503 is made part of Schedule 5 of the tariff act of 1922, which schedule is declared by Congress to cover the subject of "Sugar, molasses, and manufactures of."

We are satisfied that the collector was right in disregarding the claim of the importers as to the entered classification of the merchandise at bar, which seems to be in the form of a prepared or preserved vegetable, or a confection, or a sweetmeat.

The importers having failed to prove that this merchandise falls within paragraph 503, the classification made by the collector is presumed under the law to be correct, although if all the facts were before us, and under a proper pleading, we might find the merchandise to be properly classifiable at a higher rate of duty under a paragraph not specified by either of the parties to this cause.

The protests are overruled. Let judgment be entered accordingly.

(T. D. 41948)

Amendment of article 137, Customs Regulations of 1923

Foreign merchandise for foreign ports

TREASURY DEPARTMENT, January 17, 1927.

To Collectors of Customs and Others Concerned:

Article 137 of the Customs Regulations of 1923 is hereby amended by striking out the word "consular" in the fourteenth line thereof and substituting therefor the word "foreign."

This amendment will have the effect of providing for the same kind of landing certificates under the above article as are described in T. D. 39609 and articles 306, 981, and 1118 of the regulations. L. C. ANDREWS, Assistant Secretary.

(85326.)

(T. D. 41949)

Common carrier

Discontinuance of common carrier's bond of the Walsh Transportation Co. (Inc.), New York City, approval of which was published in T. D. 41640 of June 23, 1926

TREASURY DEPARTMENT, January 20, 1927. SIR: Receipt is acknowledged of your letter of the 14th instant, transmitting an application from the Fidelity & Casualty Co. of New York, to be relieved from further liability on the common carrier's bond of the Walsh Transportation Co. (Inc.), dated June 16, 1926, approved by the department June 21, 1926, and letter from Kirkland & Schneider, customs brokers for the Walsh Transportation Co., requesting the discontinuance of the bond in question.

In view of the fact that the transportation company has never paid the surety company the premium on the bond, and the statement of the customs brokers to the effect that the said company has gone out of business, you are hereby authorized under the provisions of article 789 of the Customs Regulations of 1923 to mark the bond "discontinued" without cancellation, and retain on file in your office to meet any liability which may have accrued thereunder. The inclosures of your letter are returned for filing with the discontinued bond.

Respectfully,
(112936.)

COLLECTOR OF CUSTOMS, New York.

(T. D. 41950)

L. C. ANDREWS,

Assistant Secretary.

Seizure of automobile-Decision of Supreme Court

The prosecution of the driver of the automobile seized under the national prohibition act, held to have constituted an election by the Government to proceed under section 26 of that act, and thereby prevented the forfeiture of the automobile under section 3450 of the Revised Statutes.

TREASURY DEPARTMENT, January 24, 1927.

To Collectors of Customs and Others Concerned:

The following decision of the Supreme Court of the United States in the case of Port Gardner Investment Co. v. United States is published for the information of customs officers and others concerned. (108200.) L. C. ANDREWS, Assistant Secretary.

SUPREME COURT OF THE UNITED STATES

Port Gardner Investment Co. v. United States

(November 23, 1926)

Mr. Justice BRANDEIS delivered the opinion of the court:

This is a proceeding, commenced in the Federal Court for Western Washington, Northern Division, under Revised Statutes of the United States, section 3450, to forfeit an automobile on the ground that it was being used with intent to defraud the United States of the tax on distilled spirits found therein. The use alleged was in removal and for the deposit, and concealment. The claimant intervened in the district court, asserted title to the automobile and denied knowledge or notice, prior to the seizure, that the automobile was being used or was to be used in any illegal manner. The case comes here on certificate from the Circuit Court of Appeals for the Ninth Circuit, that court having heard the case on writ of error to the district court, which had entered a decree of forfeiture. Six questions are presented by the certificate. The fifth is: Did the prosecution of the driver of the car under the national prohibition act constitute an election by the Government to proceed under section 26 of that

act and thereby prevent the forfeiture of the car under section 3450 of the Revised Statutes of the United States.

The facts are these: Neadeau, the driver of the automobile seized by prohibition agents, had been charged with possession and transportation of intoxicating liquor in violation of the national prohibition act. He pleaded guilty to both charges and was sentenced to pay a fine. The claimant insisted that this proceeding under section 3450 would not lie. In addition to the objections considered in United States v. One Ford Coupe Automobile, decided this day, the claimant contended that the Government should not prevail, because the plea of guilt followed by the sentence constitutes a prior conviction under section 5 of the Willis-Campbell Act, which provides that "if any act is a violation of" any tax law concerning intoxicating liquors and also of the national prohibition law, or the supplement thereto, "a conviction for such act or offense under one shall be a bar to prosecution therefor under the other." The argument is that under section 26 no separate action is taken to forfeit the vehicle; that forfeiture is an incident of the conviction of the person which operates as a forfeiture also of the vehicle taken possession of, subject only to the right of the innocent third party to establish his lien or other interest; and that the order of sale is merely a step in the execution of the judgment of conviction and forfeiture. It is argued further that the term "act," as used in section 5, means transaction; and that for this reason, independently of the doctrine of election, a conviction of the person under section 26 will bar the proceeding under section 3450 because, on the facts recited in the certificate, the proceeding to forfeit under section 3450 rests upon the same transaction for which Neadeau was sentenced. Whether the principle embodied in this contention is sound we need not determine. For there is another ground on which the conviction of Neadeau under section 26 bars a proceeding to forfeit under section 3450.

The disposition of the automobile prescribed in section 26 became mandatory after Neadeau's conviction; and being inconsistent with the disposition under section 3450 necessarily precluded resort to proceedings under the latter section. Construing the fifth question as referring to the prosecution with effect, we answer the question in the affirmative.

We need not determine whether the mere commencement of a proceeding under section 26 constitutes an election. Nor need we give specific answers to the other questions asked, since the certificate does not disclose any reason why the sale of the automobile, subject to the interests of innocent parties, should not have been ordered by the district court after the conviction of Neadeau. Yes, to question 5.

MR. JUSTICE BUTLER, CONCURRING

I agree that the answer to question 5 should be in the affirmative.

In the opinion it is said, "Construing the fifth question as referring to the prosecution with effect, we answer the question in the affirmative." This means prosecution and conviction of the driver constitute an election to proceed against the vehicle under section 26 and prevents forfeiture under section 3450. The answer is enough to guide the Circuit Court of Appeals in this case. But it leaves open the question which is not decided in No. 115. The substance of that question is whether the prohibition officer discovering one in the act of transportation may disregard the plain and direct commands of section 26 to proceed against the vehicle as there directed. I think he has no more right to ignore that command than he has to let the liquor and offender go. The law makes the election. I regret that this court's answer is so qualified and restricted. Section 26 is not so restrained.

I am authorized to say that Mr. Justice STONE Concurs in this opinion.