Ex parte Park & Tilford/Opinion of the Court

This is a petition for a writ of mandamus to require the Judges of the United States Court of Customs Appeals to take jurisdiction of a certain cause, and to consider and decide the same upon its merits. The rule to show cause having issued, the judges made return, and set forth the proceedings in the Court of Customs Appeals, and averred that the court had decided the case of the petitioner, and if the writ of mandamus issued, it would only require the court to do that which it had already done.

From the return and the record attached to the petition it appears: Park & Tilford, petitioner, imported certain merchandise at the port of New York under the Tariff Act of 1913. The collector of customs assessed and liquidated the duties at the entered value. The importer claimed assessment at the value decided upon on final reappraisement, which was less than the amount of the entered value. This claim was made under paragraph I of section 3 of the act of 1913, which provides:

'The duty shall not, however, be assessed in any case upon an     amount less than the entered value, unless by direction of      the Secretary of the Treasury in cases in which the importer      certifies at the time of entry that the entered value is      higher than the foreign market value and that the goods are      so entered in order to meet advances by the appraiser in      similar cases then pending on appeal for reappraisement, and      the importer's contention shall subsequently be sustained by      a final decision on reappraisement, and it shall appear that      the action of the importer on entry was taken in good faith,      after due diligence and inquiry on his part, and the      Secretary of the Treasury shall accompany his directions with      a statement of his conclusions and his reasons therefor.'      Comp. St. 1916, § 5527.

The importers entered the goods upon an invoice which stated the gross price and allowed 15 per cent. deduction therefrom; at entry the importers advanced the value by reducing the deduction to 6 per cent. At the time of entry the importer, in each case, made an addition to the invoice value to make market value, stating the additions were made to meet advances in similar cases then pending upon appeal for reappraisement.

On appeal for reappraisement the goods were appraised at a value which differed from the invoice value, being 2 1/2 per cent. more than invoice price of the goods, and 6 1/2 per cent. less than the entered value.

The petitioner requested the Secretary of the Treasury to reliquidate the entries, this the Secretary refused to do, stating his reasons as follows:

'You are advised that in all cases where the importer has     failed to make a specific contention as to market value, the      department regards the contention as being for the invoice      value; and where the final reappraised value is below the      entered value, but not as low as the balue contended for by the importer, it is the practice of the      department to decline to authorize a reduction of the entered      value, on the ground that the importer's contention has not      been sustained. This practice is based upon the department's     knowledge of the purpose and intent of the law, and is of      such long standing that it will not make any change therein.

'You are advised therefore that if the entries enumerated     within your petition come within the class mentioned above,      the department's final action with reference thereto would      necessarily be in accordance with its practice outlined      above.'

In a subsequent letter the Secretary reiterated this view, the petitioner protested, and the protest was submitted to the Board of General Appraisers, and was overruled, and the importer appealed to the Court of Customs Appeals.

An inspection of the opinion of the court, which accompanies the petition, makes it apparent that the court did take jurisdiction of the case and decided it, placing its decision upon the ground that the statute requires the assessment made by the collector in the absence of a direction of the Secretary of the Treasury to the contrary. The court held that the Secretary's refusal to so direct the collector was not reviewable by the Board of General Appraisers nor by the Court of Customs Appeals, that neither the board nor the court could control the discretion lodged by the statute in the Secretary, and affirmed the decision of the Board.

It is elementary that the writ of mandamus will not issue to require the court to make a particular decision, and may only be invoked where the purpose is to require action of a court of competent jurisdiction, where such court has refused to exercise the power of decision with which it is invested by law. We think it clear that the Court of Customs Appeals did take jurisdiction of the case of the petitioner on appeal from the order of the Board of General Appraisers, and decided it according to its interpretation of the statutes of the United States. These facts warrant the statements of the respondents in their return-that if the writ should issue, requiring a decision of the case, they could only repeat the decision which they have already made.

The fact that the law makes the decision of the United States Court of Customs Appeals final in this class of cases does not broaden the authority of this court to issue writs of the character now invoked; it follows that the rule must be discharged.

And it is so ordered.