'dissenting opinion
Evans, Judge:This is an action against the United States brought to recover a sum of money claimed to have been paid in excess of the amount due upon one Holstein bull imported at the port of Ogdens-burg, N. Y., at which port the hearing was had. It is claimed by the plaintiff that the bull was imported by a citizen of the United States especially for breeding purposes and is therefore entitled to free entry under paragraph 1606 of the Tariff Act of 1930.
*249The provisions of said paragraph 1606 are as follows:
Fees List.
Fae. 1606 (a) Any animal imported by a citizen of the United States specially for breeding purposes shall be admitted free, whether intended to be used by the importer himself or for sale for such purposes, except black or silver foxes: Provided, That no such animal shall be admitted free unless pure bred of a recognized breed and duly registered in a book of record recognized by the Secretary of Agriculture for that breed: Provided further, That the certificate of such record and pedigree of such animal shall be produced and submitted to the Department of Agriculture, duly authenticated by the proper custodian of such book of record, together with an affidavit of the owner, agent, or importer that the animal imported is the identical animal described in said certificate of record and pedigree. The Secretary of Agriculture may prescribe such regulations as may be required for determining the purity of breeding and the identity of such animal: And provided further, That the collectors of customs shall require a certificate from the Department of Agriculture stating that such animal is pure bred of a recognized breed and duly registered in a book of record recognized by the Secretary of Agriculture for that breed.
(b) The Secretary of the Treasury may prescribe such additional regulations as may be required for the strict enforcement of this provision.
(c) Horses, mules, asses, cattle, sheep, and other domestic animals straying across'the boundary line into any foreign country, or driven across such boundary line by the owner for temporary pasturage purposes only, together with their offspring, shall be dutiable unless brought back to the United States within eight months, in which case they shall be free of duty, under regulations to be prescribed by the Secretary of the Treasury: And provided further, That the provisions of this Act shall apply to all such animals as have been imported and are in quarantine or otherwise in the custody of customs or .other officers of the United States at the date of the taking effect of this Act.
The collector admitted the bull free of duty and the entry was liquidated on that basis, but within 2 years from the date of entry a reliquidation was ordered under authority of section 621 of the Tariff Act of 1930 on the ground that the collector had probable cause for believing that the entry was fraudulent, and the bull was assessed for duty at 3 cents a pound under the provisions of paragraph 701 of said act. That paragraph, insofar as pertinent, is as follows:
Par. 701. Cattle, weighing * * * seven hundred pounds or more each, 3 cents per pound * * ' * .
I quote also for convenience of reference said section 521 as follows:
SEC. 521. RELIQUIDATION ON ACCOUNT OF FRAUD.
If the collector finds probable cause to believe there is fraud in the case, he may reliquidate an entry within two years (exclusive of the time during which a protest is pending) after the date of liquidation or last reliquidation.
In support of his claim for free entry the importer testified that he had been in the cattle-buying business for 10 or 12 years during which time he had made many importations of livestock for breeding purposes and that some time before making tins entry, which included three Jersey cows and two calves, he had a talk with Mr. Ira E. *250Morgan in reference to obtaining a bull for him. On direct examination he was asked:
Q. Will you state, as near as you can recall, what Mr. Morgan said and what you said in connection with that?
His answer was as follows:
Well, he told me to get a good herd sire if I ran across one while I was in Canada.
On his trip into Canada the importer did buy a registered Holstein bull named “Montvic Rag Apple Boy,” registered under No. 100627. No question is raised as to the pure breeding of the animal. The importer claims he called the customs broker and told him to make out the entry papers but that he didn’t give any weights to the broker. He stated that he kept the bull on his premises about a week before he called Mr. Morgan for whom he claims he had made the purchase. Morgan said “I will run down at the noon hour.” Morgan did go down and looked at the bull and said, “Well, he doesn’t suit' me,” and that was all that was said about it. The witness stated he afterwards offered the bull for breeding purposes and was unable to sell him for that purpose but that he subsequently sold him for shipment to the market as beef.
The evidence shows the bull weighed 2,060 pounds and that the importer paid $90 for him in Canada. The entry papers give the bull’s weight as 1,000 pounds and his value as $75. When shown the invoice bearing his signature the importer stated that he had nothing to do with the matter of the weight or the value, that he did not make out the entry. When asked if he signed it he said: “I signed it ahead lots of times.” When asked if he would tell hów he got in touch with the broker, what arrangements he has with his broker, he answered:
When I am in there I sign up a lot of affidavits, and when I come in there he goes ahead and makes the entry.
The following then took place:
X Q. And you never tell him what you pay for them? — A. No; I never do.
X Q. You never do? — A. No.
X Q. You never tell him the weight of the cattle? — A. No; I never do.
X Q. You enter them all free, for breeding purposes? — A. Yes.
X Q. Always? — A. Yes.
Mr. Morgan, for whom it was claimed the bull was purchased, testified that he was engaged in farming and breeding purebred cattle; that he is a citizen of the United States and that he had some talk with Mr. Murphy, the importer, with reference to purchasing a bull. When asked to state what the conversation was he answered:
I was in need of a purebred sire, and I called on Murphy one morning and told him some time when he was in Canada to keep a good lookout for a sire for me, and when he found one that he thought would suit me to buy him.
By Judge Keefe': Did you describe the type of animal you wanted? — A. No; I didn’t, but I figured he knew about what type I needed.
*251He stated that lie examined tlie bull “Montvic Rag Apple Boy” and told Mr. Murpby that be wasn’t tbe type of bull be bad set bis heart on; tliat be was weak in a few points where bis herd of cows was weak. He was asked this question on cross-examination:
X Q. Now, you stated that this bull would be all right for breeding if you didn’t want an awfully good type. What do you mean? — A. What I meant by that is that if you are traveling your herd at the fair you have to have a good type.
In connection with tbe claim that tbe bull was purchased for Morgan it would seem that be, Morgan, was extremely careless in failing to specify tbe kind and type of bull be wanted, that is to say, he made no disclosure that be wanted one for show purposes or anything else. It scarcely seems possible that a breeder who is engaged in showing bis herd would fail when ordering a sire for such herd to give particular specifications as to kind, type, and points desired.
This testimony, in my opinion, does not disclose sufficient facts to warrant us in holding that this bull was bought on an order from Morgan. Rather it appears that Murphy bought him in the hope that Morgan would buy him but that if he did not sell him to Morgan he could find a market for him at a profit.
Furthermore, it is my opinion that there were sufficient facts to warrant the collector in believing that there was probable cause for thinking that this bull was not purchased in good faith for Morgan since his weight was understated and he was undervalued on the sworn invoice and was sold within three weeks for shipment to the market. His interview with the spécial agent gives evidence of a willingness to deceive the customs officials, as is shown by the following testimony:
Q. Did you call in the importer? — A. I called on Mr. Murphy about August 3? * *
I first asked him if he had imported the bull in question. He said he had. I asked him if it was in his possession, and he said yes. I asked him if I could see it. He then changed his story and said he sold it to Frank Jenkins, of Nor-wood, for beef. I asked him the reason, and he said the bull became vicious and he couldn’t handle it. I asked him about other importations and he said he sold Jenkins two heavy bulls on previous occasions for beef * * *.
Therefore, there" was probable cause to indicate fraud and the reliqui-dation was timely under the statute (Section 521, supra).
Under section 485 of the Tariff Act of 1930 the consignee is required to make an affidavit of the truth of the facts necessary to be set out in the entry form. In the instant case this affidavit was made out by an attorney for the customs broker. This brokerage firm is one of long standing and of good reputation. It is difficult for this member of the court to believe that its attorney would make an affidavit to facts that had not been furnished by an importer. In fact, good faith requires *252that the importer furnish the broker, who is unfamiliar with the purchases, the information required by law to be given the customs officials. If, as the importer claims, he is in the habit of filling out affidavits and other papers in blank in connection with entries of merchandise, such practice would likely result in deceiving the customs officials, as was the fact in this case, and should subject the parties engaged in such practice to discipline, if it existed.
For the above reasons I am of the opinion that the collector’s action in assessing duty at the rate of 3 cents per pound under paragraph 701, supra, should be affirmed.