by them from on board the vessel;" that in case of loss at sea or other accident whereby such certificates can not be had the exporter may produce other proofs.

None of the above provisions, however, are applicable except in a case where there is an actual exportation within the meaning of the drawback statute; and, as stated supra, I am of opinion that shipping of merchandise out of the United States simply for destruction does not constitute such exportation. In an opinion rendered to the Secretary of the Treasury October 24, 1916, relative to an alleged exportation of antimonial lead, I have already held that the shipping of such lead to a foreign port and its immediate reshipment to this country does not constitute an exportation within the meaning of the withdrawal for export section of the tariff acts of 1897 and 1909.

Claimants urge in support of their contention the fol lowing expressions used in the opinion of Solicitor General Taft, of September, 1890 (19 Op. 642), supra:

"The right to drawback can not be said to accompany the goods after they are in transitu to a foreign port. As soon as it becomes absolute the beneficiary is fixed and the right becomes a chose in action, personal to the shipper, and no longer attached to the goods. The law plainly intended to reward the person causing the export, who is the shipper. To hold that the drawback follows the title to the goods to foreign shores is to give the section extraterritorial effect, and is to continue the regulation between the drawback and the goods after the object of creating the relation has been accomplished. Such a construction is therefore not reasonable."

No question of the good faith of the exportation for sale abroad or entry into the commerce of a foreign country was involved in the case, however, or was considered by Mr. Taft. The question presented to him was whether the importer of the material who paid the duty thereon, the manufacturer of the article exported in which the material was incorporated, the owner and shipper of the article to whom the bill of lading had been issued, or the foreign vendee was entitled to the drawback. He held that the proper person to receive the drawback was the owner and shipper to the foreign port, and the language quoted supra

in his opinion was used to indicate the person in whom the right to the drawback was vested.

The case now before me, however, involves the question whether on this particular shipment any right to drawback ever accrued to any one.

Claimants further urge that the purpose of granting drawbacks is not to encourage export trade, but to grant a bounty to domestic manufacturers, and they cite Downs v. United States (1903), 187 U. S. 496. That case, however, did not involve the construction of any drawback statute, and an incidental remark or dictum as to drawback as a bounty can not be considered to overrule the express decision to the contrary in Campbell v. United States (1882), 107 U. S. 407, 413, where the character of a drawback allowance similar to the one here under consideration was distinctly in issue, the Government contending that the allowance constituted a gratuity.

The claimants contend that the duty of the Secretary of the Treasury is purely ministerial, and that, where the regulations prescribed by law have been complied with, the drawback must be paid. However true this may be as an abstract proposition, it does not touch the question of the right of the Secretary of the Treasury to determine whether in any particular case goods have been "exported " within the meaning of the statue.

See Tidewater Oil Co. v. United States (1898), 171 U. S.

210.

The opinion above expressed by me is in consonance with the rule previously adopted by the Supreme Court, and reiterated in its opinion in the case of Swan & Finch Co. v. United States, involving claims to drawbacks under a statute embodying practically the same language as that upon which these claims are based. The court said (190) U. S. pp. 146, 147):

"Being a governmental grant of a privilege or benefit it is to be construed in favor of the Government and against the party claiming the grant.

* * *

"On the other hand, in Hannibal, etc., Railroad Co. v. Packet Co., 125 U. S. 260, 271, we said, citing several authorities:

"But if there be any doubt as to the proper construction of this statute * then that construction must be adopted which is most advantageous to the interests of the Government. The statute being a grant of a privilege, must be construed most strongly in favor of the grantor.""

I am, therefore, of opinion, that the Secretary of the Treasury should decline to pay the claims for drawback in question.

Respectfully,

T. W. GREGORY.

TO THE SECRETARY OF THE TREASURY.

CANCELLATION ON WAREHOUSE BONDS-ANTIMONIAL

LEAD.

Antimonial lead, which is a combination of metals obtained from the smelting or refining process, is a "refined metal" within the meaning of section 29 of the tariff act of July 24, 1897 (30 Stat. 210), and might be exported and cancellations or credits had upon the warehouse bond in the ratio of the respective metals contained in the imported ore or bullion.

Under the tariff act of July 24, 1897, the withdrawal by the American Smelting & Refining Co. of antimonial lead for ostensible export and its shipment abroad and return to the United States for the sole purpose of securing a reduction of duty upon it, rendered the company liable for the difference between the amount paid as duty upon the metal when returned to this country (viz, 14 cents on the lead contents) and the amount allowed as cancellation of the bonds upon withdrawal for the fraudulent export (viz, 2 cents per pound).

Under the tariff act of August 5, 1909 (36 Stat. 89), antimonial lead was entitled to withdrawal for domestic consumption upon the payment of a duty of 14 cents per lead pound, and the same rate of cancellation upon the bond was allowed when such metal was withdrawn for export; and hence the company is not liable for the difference between the cancellation of 2 cents per gross pound, erroneously made upon the bond, and the 14 cents per lead pound paid upon reintroduction.

DEPARTMENT OF JUSTICE,
October 24, 1916.

SIR: In a letter dated October 3, 1914, and supplementing your previous letter of that date, in effect you present the following statement of fact:

Under section 29 of the tariff act of 1897, providing for the designation of smelting and refining plants as bonded

warehouses and permitting such plants to import crude ores or metals for smelting or refining free of duties, upon giving the necessary bonds for reexportation of the refined metal or payment of duties in cases of withdrawal for domestic consumption, and under the regulations of the Treasury Department established pursuant thereto, the plant of the American Smelting & Refining Co. at Perth Amboy, N. J., was designated as such a bonded smelting and refining warehouse, and executed a bond on June 3, 1901, conditioned generally as provided by the section and conformable to the regulations then in force. After the passage of the tariff act of 1909, section 24 of which covered the importation, under bond, for smelting and refining, of lead ores or crude lead, the regulations of the department on the subject, as far as applicable, were continued in force (T. D. 29939), and on January 18, 1910, were amended (T. D. 30703) to cover the subject more explicitly.

The American Smelting & Refining Co. has made various withdrawals of the smelted and refined product of the lead-bearing ores or bullion imported by it, 1902 to 1911, for ostensible transportation and exportation, with a view to securing a cancellation of the charges upon its bend. In the cancellation of the charges against the bond, upon such withdrawals, credit has been given on certain by-products for "antimonial lead" exported, on the basis of 2 cents per pound on the bullion weight.

In many cases arising between 1902 and 1911, this "antimonial lead," which had been credited upon the bond at 21 cents per pound on the bullion weight, that is, the export weight plus wastage, while withdrawn for declared export, was returned to prior purchasers in the United States, either by the same vessel in which it was sent abroad or in other vessels, entered for domestic consumption as type metal, and duty paid thereon at the rate of 1 cents per pound on the lead contents.

On each of these withdrawals, an attorney for the company executed, under oath, a declaration to the effect that the refined material withdrawn was truly intended to be exported to a foreign port named, "and that it was

1ot intended to be relanded or consumed within the limits of the United States." In addition to this declaration under oath, a bond was given, conditioned that the metal should be duly landed and delivered at the foreign port named, and should not be relanded or consumed within the limits of the United States except upon due entry and withdrawal for consumption on payment of duties at any port of entry or delivery on the said route.

As a matter of fact, notwithstanding such declarations. under oath and the giving of such bonds for transportation and exportation, the evidence now in hand shows that the American Smelting & Refining Co. knew at the time of the shipments of the metal abroad that it was to be returned to the United States. These returns were accomplished in some instances by simulated sales to the Hoyt Metal Co. which, in turn, sold the metal to American consumers, whereupon the American Smelting & Refining Co. made withdrawals for transportation and exportation; in many instances the metal was placed upon ships and round trip sea voyages made, without any landing abroad; and upon its return to the United States entries were made, the merchandise classified and passed as type metal, and duties paid at the rate of 11 cents per pound on the lead contents. Details of the manner in which the Hoyt Metal Co. conducted these simulated exportations, reimportations, and pretended sales to foreign consumers who, acting merely as agents, in return, shipped it back to American consumers, are presented in extenso. The statement is also made that the American Smelting & Refining Co. had full knowledge that practically its entire output of antimonial lead was being returned to the United States by this circuitous route. These transactions are stated to have occurred chiefly during the period between 1902 and 1911.

The facts presented involve the following questions:

I.

Whether antimonial lead was entitled to withdrawal as a refined metal under section 29 of the tariff act of 1897.