George S. Bush & Co. v. United States

Lenroot, Judge,

dissenting: I am unable to concur in the conclusion reached by the majority herein.

Of course the involved proclamation of the President is presumptively valid.

The majority opinion does not hold that there were not facts before the commission upon which costs of production could be ascertained. The evidence before the commission is not before us, and the conclusion of the majority is based wholly upon the report of the commission to the President.

*74The majority holds that, although the commission investigated prices or values of the foreign article for a representative period, the conversion of these prices from yen into dollars at the average rate of exchange for the year 1932 for the entire representative period was erroneous, that such error rendered the investigation made by the commission illegal, and that the proclamation of the President, having been based upon an illegal investigation, was without authority of law and void.

For the purpose of this dissent I will assume that the commission erred in its conversion of Japanese yen into dollars, at the average rate of exchange for 1932, applied to invoices of 1931. I contend, however, that this error did not render the investigation illegal, nor should it be assumed that the President made the same error in approving the rate recommended by the Tariff Commission. It is my judgment that if there was any substantial evidence before the commission to sustain the proclamation of the President, it was valid notwithstanding any error made by the commission in drawing its conclusions from the facts secured by it in its investigation. David L. Moss Co., Inc. v. United States, 26 C. C. P. A. (Customs) 381, C. A. D. 45, 103 F. (2d) 395. Inasmuch as the evidence produced before the commission is not before us, we must presume that there was such substantial evidence unless from the facts reported by the commission we may not indulge the legal presumption that there was substantial evidence before the commission sustaining the action of the President. Carl Zeiss, Inc. v. United States, 23 C. C. P. A. (Customs) 7, T. D. 47654.

I find nothing in the record in the case at bar to indicate that the commission might not have come to the same conclusion as to the rates recommended if it had not erred in its application of the rate of exchange to the invoices of 1931. There is nothing in the report of the commission or in the record indicating that it did not also have before it invoice prices of imports from Japan, in terms of yen, for the year 1933 and immediately preceding the date of its report, which was April 5, 1934. If the average prices shown by such invoices were in yen approximately the same as the prices in 1931 and 1932, and if the commission had converted the yen prices on invoices of 1931 upon the rate of exchange prevailing in 1931, we think it would have been fully justified in holding that the difference in the rate of exchange prevailing in 1931 and 1932 and that prevailing in 1933 and 1934 was a relevant factor in determining the differences in costs of production at the date of its report, which, after all, was the ultimate objective of the investigation, and that, in order to recommend to the President a rate which would equalize the differences in such cost of production, the depreciation in the value of the yen, measured in United States dollars, should be taken into consideration. This being true, the Pres*75ident could have legally approved the rate recommended by the Tariff Commission. Furthermore, I call attention to the fact that the commission in its report stated that the recommended rate is less than the excess of domestic over foreign costs. The reason that no higher rate was recommended was that the statute, section 336, did not permit it. The situation, therefore, was that the President could have found upon the facts before the commission a less difference between the cost of production of domestic and foreign articles than that found by the commission, and yet have approved the rate recommended by it.

I contend that any conclusion arrived at by the commission from the facts secured in its investigation is not a part of the investigation and may lawfully be ignored by the President. Section 336 (c) provides that' the President shall by proclamation approve the rates recommended by the commission “if in his judgment such rates of duty and changes are shown by such investigation of the commission to be necessary to equalize such differences in costs of production.” (Italics supplied.)

Surely it cannot be said, in view of the above-quoted language, that the conclusions of the commission are a part of the investigation in the sense that an error of law by the commission in arriving at its conclusions renders the investigation illegal.

Furthermore, section 336 (a) distinguishes between the “results of the investigation” and the investigation itself, clearly indicating that the findings of the commission from the facts adduced before it are not strictly a part of the investigation itself.

The predecessor of section 336 was section 315 of the Tariff Act of 1922. One of the principal differences between the two sections is that in section 315 the President, in arriving at his determination, was not confined to a consideration of the facts secured by the commission, while under section 336 he is so limited.

However, so far as the question before us is concerned, I consider certain of our decisions under the Tariff Act of 1922 applicable here.

In the case of William A. Foster & Co. (Inc.) et al. v. United States, 20 C. C. P. A. (Customs) 15, T. D. 45673, we said:

In determining this matter, it will be borne in mind that we are here concerned with the legality of the President’s act in raising the rates on case polished plate glass, unsilvered, from the statutory figure to that fixed by his proclamation. The question is not whether the United States Tariff Commission committed error, or whether the testimony heard by, or the findings of, the commission were sufficient to legally justify the President’s finding and proclaimed rates. The President is not bound by such testimony or findings. He may arrive at his conclusions from information derived from other sources, which information may be privately conveyed and confidentially received. The various elements which he must take into consideration, as fixed by said section 315 (c), give him wide latitude. Therefore, it is fallacious to argue that possible error committed by the *76Tariff Commission, or failure of proof before that body, may invalidate the President’s finding and proclamation. Such hearing before the United States Tariff Commission is provided by law “to assist the President,” not to control him.

Except for the fact that under the Tariff Act of 1930 the President is bound by the testimony adduced before the commission, while under the act of 1922 he was not, the language last above quoted is clearly applicable to the case at bar. Here, as there, the President is not bound by the findings of the commission, and here, as there, it is fallacious to argue that error committed by the Tariff Commission in its findings may “invalidate the President’s finding and proclamation.”

In the case of Akawo & Co. et al. v. United States, 23 C. C. P. A. (Customs) 75, T. D. 47737, we said:

* * * The mere fact that the Tariff Commission may have committed error, although we find no evidence of it, so long as its investigation was a legal one, is not of vital consequence so far as the provisions of section S15, supra, are concerned. * * *

The case of Feltex Corp. etc. v. Dutchess Hat Works etc., 21 C. C. P. A. (Customs) 463, T. D. 46957, arose under the Tariff Act of 1930 and section 336 was there, as it is here, involved. In that case we said:

By section 336 (c) the President is not in any way bound by the “results” or “findings” reported by the Tariff Commission. He is required to approve the rates specified by it if, in his judgment, such rates are “shown by such investigation” to be necessary to equalize such differences in costs of production. In forming his judgment, as aforesaid, he is not limited to an examination of the report of the commission. There is nothing in the statute which expressly or impliedly so requires. One of the principal distinctions between section 336 of the Tariff Act of 1930 and section 315 of the Tariff Act of 1922 is that under said section 315 the President could make any investigation that he saw fit, and might specify any increases or decreases in rates that in his judgment were necessary to equalize costs of production, subject to the limitation that such increases or decreases must not exceed 50 per centum of the rates specified under title I of the Tariff Act of 1922. Before he could so act, however, the Tariff Commission must have made an investigation of the differences in costs of production of the merchandise the subject matter of the President’s proclamation.
Under the provisions of section 336 of the Tariff Act of 1930 the President, in forming his judgment, is confined to a consideration of the facts secured by the Tariff Commission in its investigation, and is further limited to approval of the rates specified by the commission if he finds, from such investigation, that the rates so specified are necessary to equalize costs of production.
We can find nothing in the statute which limits the President to a consideration of the report of the Tariff Commission, but we think the fair construction of section 336 is that the President, upon a report coming to him from the Tariff Commission, may require such commission to place before him all the facts secured by it in its investigation, and from such facts the President may determine whether the rates specified in the report of the commission should be approved.
If the commission should, in a given case, report only its conclusions, it is clear that the President, if he is confined to the report of the commission in arriving at his judgment, would have no'facts whatever upon which to base his judg*77ment, but only conclusions of the commission. It is our opinion that it was the intention of Congress that the President should consider all the relevant facts before the commission in its investigation in arriving at his judgment, and that, in arriving at such judgment, he is not confined to a consideration of the report of the commission other than that he must approve or disapprove the rates specified by the commission in its report.
5fr * ^ * * ‡ *
We think it immaterial, so far as the question of the validity of said proclamation is concerned, what report the commission may have made as to the results of its investigation or what findings it may have made, other than its finding that the rates specified by it were necessary to equalize the differences in costs of production of the merchandise under investigation. If the President, upon an examination of all the facts before the commission, had any legal basis for a finding that such rates were necessary to equalize costs of production, his proclamation is valid.

In my judgment the majority opinion clearly overrules so much of our opinion in the Feltex case as is above quoted.

In the case of Carl Zeiss, Inc. v. United States, supra, which also arose under section 336 of the Tariff Act of 1930, we stated:

The President, although not required by the provisions of section 336, supra, to accept the results or findings reported by the Tariff Commission, is required to limit his consideration of the case to the evidence presented to that body, and to approve the rates of duty and changes in basis of value specified by it,
if, in his judgment such rates [and changes in basis of value] are shown by the investigation to be necessary to equalize such differences in costs of production.
Feltex Corp. v. Dutchess Hat Works, 21 C.C.P. A. (Customs) 463, T. D. 46957.

Under the majority opinion every error of the Tariff Commission arising from failure by it to comply with the mandate of section 336 in making its findings renders the entire investigation illegal, and the ensuing proclamation of the President, approving the rates specified, void. To illustrate how far-reaching this ruling is, I call attention to other provisions of section 336 where such ruling may be applied. Under subdivision (e) (2) of said section the commission is required, so far as it finds it practicable, in ascertaining the differences in cost of production, to consider transportation costs. If it should appear from the report of the commission that there were transportation costs and that the commission in making its findings had failed to consider them, the entire investigation would be illegal and the proclamation of the President would be void, even though the proclamation should recite that the President had, in arriving at his determination, taken into consideration such costs.

Under section 336 (h) (4) it is provided that the cost of production shall include the cost of containers of the merchandise; but under the majority opinion, if it appeared from the report of the commission that it had not considered the cost of containers, the entire investigation would be illegal, and the President’s proclamation would be void, even though the proclamation should recite that the evidence *78before the commission established the cost of the containers and that the President had considered such cost in approving the rates recommended by the commission.

Other illustrations might be given where, under the view of the majority, an entire investigation would be rendered illegal through some error in the findings of the commission, which findings, we have repeatedly said, are not binding upon the President.

In conclusion, it is my view that if an investigation is held, with due notice and opportunity to be heard, and if there is substantial evidence produced before the commission to sustain the proclamation of the President, and the President in making his determination has complied with the mandate of the statute, such proclamation is valid, notwithstanding any errors made by the commission in its findings.

There being nothing in the record before us indicating that there was no substantial evidence before the commission sustaining the proclamation of the President, and the evidence before the commission not being before us, the presumption of the validity of the President's proclamation has not been overcome, and the judgment appealed from should be affirmed.