II.

Whether the withdrawal of antimonial lead for ostensible export and its shipment abroad and return to the United States in the manner detailed by you entitled the smelting or refining company to cancellations on its bond at the rate of 24 cents per pound and a return of the metal to this country as type metal upon payment of a duty of 12 cents per pound upon the lead contents:

(a) Under section 29 of the tariff act of 1897;

(b) Under sections 23 and 24 of the tariff act of 1909.

I.

Section 29 of the tariff act of 1897 (30 Stat. 210, 211, Chap. XI), provides:

"That the works of manufacturers engaged in smelting or refining metals, or both smelting and refining, in the United States may be designated as bonded warehouses under such regulations as the Secretary of the Treasury may prescribe: Provided, That such manufacturers shall first give satisfactory bonds to the Secretary of the Treasury. Ores or metals in any crude form requiring smelting or refining to make them readily available in the arts, imported into the United States to be smelted or refined and intended to be exported in a refined but unmanufactured state, shall, under such rules as the Secretary of the Treasury may prescribe, and under the direction of the proper officer, be removed in original packages or in bulk from the vessel or other vehicle on which they have been imported, or from the bonded warehouse in which the same may be, into the bonded warehouse in which such smelting or refining, or both, may be carried on, for the purpose of being smelted or refined, or both, without payment of duties thereon, and may there be smelted or refined, together with other metals of home or foreign production: Provided, That each day a quantity of refined metal equal to ninety per centum of the amount of imported metal smelted or refined that day shall be set aside, and such metal so set aside shall not be taken from said works except for transportation to another bonded ware

house or for exportation, under the direction of the proper officer having charge thereof as aforesaid, whose certificate, describing the articles by their marks or otherwise, the quantity, the date of importation, and the name of vessel or other vehicle by which it was imported, with such additional particulars as may from time to time be required, shall be received by the collector of customs as sufficient evidence of the exportation of the metal, or it may be removed under such regulations as the Secretary of the Treasury may prescribe, upon entry and payment of duties, for domestic consumption, and the exportation of the ninety per centum of metals hereinbefore provided for shall entitle the ores and metals imported under the provisions of this section to admission without payment of the duties thereon: Provided further, That in respect to lead ores imported under the provisions of this section the refined metal set aside shall either be reexported or the regular duties paid thereon within six months from the date of the receipt of the ore. All labor performed and services rendered under these regulations shall be under the supervision of an officer of the customs, to be appointed by the Secretary of the Treasury, and at the expense of the manufacturer." Article 1081, Customs Regulations, 1899, provided: "In case two dutiable metals are recovered in the smelting and refining process in a combined form, for example, lead and antimony as "antimonial lead," the percentages of lead and antimony contained therein shall be determined by assay, and the quantities so determined, when withdrawn, shall be properly credited on the respective bonds to which they appertain."

This article was amended in the Customs Regulations of 1908, so as to provide (article 545):

"In case two or more dutiable metals are recovered in the smelting or refining process from the same ore or crude metal, for example, lead and antimony as "antimonial lead," a separate account of the quantity of each metal so recovered shall be kept by the governmental official in charge, and before the bond given to cover the importation shall be canceled 90 per cent of each of the kinds of metal recovered from the material must be exported."

113598-19-VOL 31-2

The opinion of the Attorney General of January 26, 1903, authorized the liquidation of the charges against the warehouse refining bond "on the exportation of 90 per cent of the metal contents * whether consisting

It

of one or more metals beside the lead" (24 Op. 569). seems, therefore, to have been a practice sanctioned by the Secretary of the Treasury, and recognized apparently by the Attorney General, to permit the exportation of "antimonial lead" as a "refined metal," in satisfaction of the requirements of section 29 of the act of 1897, and to make corresponding cancellations upon the bond.

I have no question that the Treasury decisions purporting to be promulgated in accordance with the terms of the act of 1897, and the opinion of the Attorney General, contain a practical departmental construction of that act, which should now be followed, and that the combination of two or more metals obtained from the smelting or refining process is a "refined metal" within the meaning of that act, 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.

II.

(a) Article 544, Customs Regulations, 1908, pursuant to the provisions of section 29 of the tariff act of 1897, provides for the withdrawal for exportation of smelted or refined metals produced in bonded smelting warehouses in the following language:

"Upon the withdrawal for consumption in the United States of any portion of the smelted or refined dutiable metal or metals set aside and stored, as herein prescribed. ** On the exportation of such smelted or refined metal or metals credit will be given on the warehouse bond for the ore or crude metal covered thereby.

*

Section 29 of the tariff act of 1897 provides:

"And the exportation of the 90 per centum of metals hereinbefore provided for shall entitle the ores and metals imported under the provisions of this section to admission without payment of the duties thereon."

The general warehouse smelting bond of the company provided that the refined metals set aside as therein prescribed should be taken from the warehouse only for consumption or "export." Upon each withdrawal of metal from said warehouse a declaration under oath was made by an attorney of the company that the refined metal withdrawn was "truly intended to be exported to the port of Hamburg and is not intended to be relanded or consumed within the limits of the United States." In the bond give for transportation and exportation it was provided that the refined metal withdrawn should be "duly landed and delivered at Hamburg 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, in case the obligors, their agents or consignees, should so elect."

The Customs Regulations, then, as a prerequisite to cancellations on the bond, required a promise of exportation of the refined metal withdrawn, the statutes applicable required such exportation, the declarations under oath stated that the metal was withdrawn for exportation, and the exportation bond was conditioned upon a landing at the foreign port to which consigned, unless entered and duty paid at some domestic port on the route. Exportation of the refined metal was contemplated and required in the Customs Regulations and in the law, was promised in the sworn declaration, and both bonds were conditioned upon it.

Accordingly, the only question to be resolved is whether the shipment of this refined metal (and it is conceded that an alloy might be shipped) and its return to the United States in the manner detailed by the Secretary of the Treasury, i. e., with the full intent on the part of the consignee to ship the metal back for entry here and the payment of duty at a lower rate than had been credited upon the warehousing bond-a practice which was consummated by various devices, such as simulated sales to foreign dealers who were really only agents paid to ship the metal from abroad, frequently without landing it at a foreign

port or even transferring it to other vessels-constituted bona fide exportations and warranted the cancellations on the bond.

Considering the applicability of section 30 of the Act of July 24, 1897, providing for the payment of drawbacks of duty upon exportation of articles manufactured in the United States from imported materials when such articles were consumed on board the vessel during its voyage to a foreign port, Mr. Justice Brewer, for the Supreme Court, in Swan & Finch Co. v. United States, 190 U. S. 143, defined the word "export," as employed in drawback statutes, explicitly, saying (pp. 144, 145):

66* * * Whatever primary meaning may be indicated by its derivation, the word 'export' as used in the Constitution and laws of the United States, generally means the transportation of goods from this to a foreign country. As the legal notion of emigrating is a going abroad with an intention of not returning, so that of exportation is a severance of goods from the mass of things belonging to this country with an intention of uniting them to the mass of things belonging to some foreign country or other.' 17 Op. Attys. Gen., 583."

This is an analogous statute, extending a benefit to the domestic manufacturer, and obviously, under the facts detailed by the Secretary of the Treasury, in the methods employed, such as sales of refined metal to domestic consumers prior to its shipment abroad, there was never any intention on the part of the American company to unite this metal with the "mass of things belonging to some foreign country." It was shipped out of the United States for the sole purpose of securing a reduction of duty upon it, in palpable evasion of the provisions of section 29 of the act of 1897.

And, again (p. 146):

*The purpose with which the drawback statute was enacted is against it. In Campbell v. United States, 107 U. S. 407, 413, we said:

"The purpose of the drawback provision is to make duty free, imports which are manufactured here and then returned whence they came or to some other foreign coun