HECKENDORN v. UNITED STATES, 162 F. 141

BAKER, Circuit Judge (after stating the facts as above). The questions propounded by appellant have been decided adversely to his contentions by the Circuit Court for the Northern District of New York and by the Court of Appeals for the Second Circuit. Myers v. U. S. (C. C.) 140 Fed. 648; Id., 144 Fed. 1021, 73 C. C. A. 596. But appellant is right in claiming that he is entitled to our independent consideration and judgment. 1.

In the form of a license fee for the privilege of cutting pulp wood on public lands in the province of Quebec 40 cents a cord is collected on what is consumed in manufacture within the Dominion of Canada and 65 cents a cord on what is exported. Looking beyond form, we find that a tax of 35 cents a cord is imposed on all pulp wood cut on public lands in the province of Quebec which at any point is taken beyond the boundaries of the Dominion of Canada. In its essential nature this is an export duty. 3.

For the purposes of the case we may concede, without inquiry, that appellant is right in saying that the countervailing duty on wood pulp provided for in the tariff act of the United States can properly be levied only on wood pulp that is imported directly from the very country or dependency that imposes the export duty on pulp wood. From this point the argument for reversal proceeds thus, in substance: Either the Dominion of Canada or the province of Ontario must be taken as the country or dependency from which the wood pulp in question was imported.

If the Dominion of Canada, the countervailing duty cannot lawfully be exacted from appellant because the Dominion has not imposed any export duty on pulp wood. The case is the same with the province of Ontario. In regard to the legislation of the province of Quebec, which is made the excuse for demanding the countervailing duty, that province was not empowered by the Kingdom of Great Britain or by the Dominion of Canada to impose export duties or to pass any act which should have effect in the province of Ontario or anywhere in the Dominion outside of Quebec’s own territorial limits.

The answer, we think, is that the customs officers of the United States were not required, by appellant’s protest, to pass upon questions of English or Canadian constitutional or statutory construction. Their action was justified if they found correctly that what in fact was a duty upon exportations from the Dominion of Canada was acted upon by taxing officers throughout the Dominion as fully as if it were imposed by what appellant would admit was unquestionable authority; and no other finding would be in consonance with the record. The decree is affirmed.