Geo. S. Bush & Co. v. United States , 135 F. Supp. 696 ( 1949 )

Mollison, Judge:

Plaintiffs Rave filed a motion for (1) a review of rulings made on September 19, 1947, by Judge Genevieve R. Cline, as to tbe admissibility of certain evidence more specifically referred to in tbe motion, and (2) tbat a commission be issued to take tbe testimony of a certain witness wbo bad previously testified in tbe cases. Tbe record shows tbat on September 19, 1947, at tbe port of Seattle, Wasb., there was a voluntary submission, by counsel for both parties, of tbe cases for a decision by this court (R. 2547).

Tbe protests, 120086-K, etc., were filed at tbe port of Seattle and on August 13, 1945, were received by tbe clerk of this court; tbe merchandise involved in tbe protests was dogfish-hver oil, classified by tbe collector under paragraph 34 of tbe Tariff Act of 1930 (19 U. S. C. § 1001, par. 34) as a drug, advanced in value, but claimed by plaintiffs to be entitled to free entry under paragraph 1669 of tbe same act. Several protests of tbe plaintiff named above, and others, were con-sobdated for disposition with tbe initial protest, 120086-K, and the record shows tbat all of said protests were dealt with, tried, and submitted together.

By reason of the subject matter and the paragraph under which the merchandise was classified, the protests were, by the terms and provisions of rule 41 (the assignment rule for protest or classification cases) of this court, assigned to the first division of this court.

The transcript of testimony or proceedings is voluminous and of great length. The hearings of the protests began at Seattle on February 4, 1946, before a single judge of this court, and thereafter hearings were had before the first division at New York; later at other cities on the Pacific Coastbefore the first division at New York again; afterwards at Seattle and at other cities on the Pacific Coast; subsequently before the first division at New York; before a single judge at Boston; again at cities on the Pacific Coast; and finally at Seattle where the hearings were concluded before Judge Cline and the cases submitted before said judge on September 19, 1947. Except for the several hearings at New York before the first division, all hearings in the cases were before various single judges of "the court, comprising in all, five individual members of the court.

Although it would be entirely feasible to dispose of the motion before the court on grounds which involve merely the form and the substance of the motion, the defendant’s attorney has in a written brief and also in oral argument challenged the jurisdiction of the first division to entertain the motion or “review” the rulings of the single judge on circuit before whom the protests were submitted, although the defendant’s attorney also argues that the first division should deny the motion because the rulings of the judge on circuit were correct. Since the jurisdiction of the first division to entertain the motion and also to hear and determine and decide the cases has been challenged, necessarily this court must first dispose of the jurisdictional questions before considering the merits of the motion made by the plaintiffs.

It requires only an examination of the present statute and its predecessors whereby this court was created and continued in existence to establish that Congress sought to secure the well-known and unquestioned benefits of three-judge-courts in the hearing and determination of classification cases, whereby the jury and judicial functions of our system of jurisprudence would be given their widest, practical application. Therefore, jurisdiction in classification cases has, by statute, been given exclusively to divisions of this court. 28 U. S. C. (1948 revision) § 254, under the caption “Divisions; powers and assignments” contains the following:

The chief judge of the Customs Court shall divide the judges of such court into three divisions of three judges each, to hear and determine * * * protests against decisions of collectors * * *.

‡ ^ ‡ # ^ ‡ #

A majority of the judges of any division may hear and determine all cases and questions pending therein.

19 U. S. C., § 1515, provides that the collector of customs shall, in the case of protests against his decisions not sustained by him, transmit the entry, etc.,—

* * * to the United States Customs Court for due assignment and determination, as provided by law.

The law itself makes no provision directly for assignment, but provides in 28 U. S. C. (1948 revision) § 2071 that—

Each court established pursuant to Act of Congress may from time to time prescribe rules for the conduct of its business. Such rules shall be consistent with Acts of Congress and rules prescribed by the Supreme Court.

and in § 253 that—

The chief judge of the Customs Court shall * * * assign or reassign, before trial and under rules of the court, any case for hearing, determination, or both * * *.

and rule 41 of the Customs Court completes the picture by providing for the assignment of classification cases to the three divisions of the court according to subject matter.

The situation which obtains under the statute and rules is well-expressed in United States v. Park & Tilford, 4 Ct. Cust. Appls. 293, T. D. 33514, at page 296, as follows:

It seems clear that the provisions of the statute above recited contemplate that classification cases, like the one now before this court, shall by the collector be transmitted to the board of nine appraisers [now United States Customs Court] to be assigned for hearing and determination to one of the boards [now divisions] of^three, into which it is by statute divided, thus in effect establishing each of said boards of three as the proper'tribunals to hear and determine such cases.

Since each division of the court acquires jurisdiction of classification cases by reason of the subject matter under the automatic operation of rule 41 of this court, it must follow that the jurisdiction of the division over a classification case attaches immediately upon the expiration of the statutory time within which the collector has authority to act (United States v. Straus & Sons et al., 5 Ct. Cust. Appls. 147, T. D. 34193; Tower Mfg. & Novelty Co. et al. v. United States, 6 Ct. Cust. Appls. 267, T. D. 35478; Raphael Weill & Co. v. United States, 21 C. C. P. A. 152, T. D. 46479; 17 C. J., p. 652, § 258, note 21; 25 C. J. S., p. 332, note 29), subject, of course, to the power of the chief judge to assign or reassign any such case before trial and under the rules of the court to another division for hearing, determination, or both.

And the immediate attachment of jurisdiction of a division over the protest case operates automatically under the statute and rule 41 regardless of-whether the case arises at the port of New York, where the court by law has its headquarters, or at a so-called outport- Therefore, it makes no difference that the present case arose in, and that hearing was requested at, Seattle, Wash.; the first division acquired jurisdiction to hear and determine that case (because of its subject matter) as soon as it became subject to judicial authority, and that division'has never been divested of such jurisdiction. The only manner in which the jurisdiction of the first division over the case could have been terminated or transferred would have been by reassignment of the case by the chief judge before trial under the power granted in 28 U. S. C. (1948 revision) § 253, or its predecessor statute, and that was never done.

It is worthy to note at this point that it has been held that jurisdiction of classification cases resides in the division and not in the court as a whole. Thomas Prosser $ Son v. United States, 158 Fed. 971, and United States v. Saunders et al., 5 Ct. Cust. Appls. 270, T. D. 34446.

The basic question here under discussion has to do with the distribution of the powers and duties of a single judge on circuit who “hears” a classification or protest case at an outport and the division of the court which has jurisdiction, under assignment rule 41, “to hear and determine” the same. The statute (28 U. S. C. (1948 revision) § 254) provides that the chief judge—

* * * may designate a judge or a division * * * to proceed to any port within the jurisdiction of the United States to hear and determine cases assigned for hearing at such port.

It may not be fairly assumed that by the foregoing provision it was intended by Congress to confer jurisdiction upon a single circuit judge to “hear and determine” classification or protest cases because such an assumption would be obviously contrary to the three-judge-division jurisdictional concept provided for, and express provisions contained in other parts of this same section. Moreover, the notion that Congress intended, by the above provision, to confer upon the single circuit judge or the single judge sitting singly at New York City jurisdiction to “hear and determine,”, i. e., decide and render final judgment in protest cases, is completely and wholly negatived and contradicted not only by the other provisions contained in said section 254 but also by sections 2631, 2633, 2635, 2636, and 2640 of chapter 169 of the Judiciary and Judicial Procedure Act (28 U. S. C. (1948 revision)), which, together with section 254, show quite plainly that Congress intended to confer jurisdiction to “hear and determine” protest cases only upon divisions of the court and to confer upon single judges jurisdiction to “hear and determine” only appeals to reap-praisement. United States v. Park & Tilford, 4 Ct. Cust. Appls. 293, T. D. 33514; United States v. Saunders, 5 Ct. Cust. Appls. 270, T. D. 34446; Thomas Prosser & Son v. United States, 158 Fed. 971, 973; 17 C. J., p. 608, sec. 87, notes 38-40; 17 C. J.; p. 653, sec. 263, note 35; 25 C. J. S., p. 339, sec. 181, note 97; 17 C. J., p. 624, sec. 135, note 49; 25 C. J. S., p. 347, sec. 181 (b) (2), note 79; United States v. Tampa Box Co., 15 Ct. Cust. Appls. 360, T. D. 42561; Johnson Co. v. United States, 13 Ct. Cust. Appls. 373, T. D. 41318, rehearing denied 13 Ct. Cust. Appls. 626, T. D. 41480; and rules 8, 9, 17, 25, 40, and 41 of the Customs Court, adopted May 29, 1936, as amended.

There has never been any lack of understanding of the statutory scheme and arrangement established by the various acts of Congress relating to the structure, duties, and powers of this court and its divisions and members. The allocation or distribution of jurisdictional powers over protest cases and appeals to reappraisement as between divisions of the court and single judges thereof is well set according to long-established construction in volume 17, Corpus Juris (published in 1919), page 608, as follows:

[§ 87] 2. Jurisdiction. Acting singly, the general appraisers hear and determine appeals taken either by importers or by collectors from the appraisements made by the local appraisers at the various ports. Acting as boards of three, they have jurisdiction: (1) Over appeals from decisions on reappraisement made by single general appraisers, as aforesaid; (2) over protests against decisions by collectors of customs as to the rate or amount of duty on merchandise subjected to duty * * *.

The interpretation above gives force to every word and phrase in the statutory provisions relating to the Customs Court, its structure, jurisdiction, and procedure, and likewise to the system of assignment of classification or protest cases exclusively to divisions of the court by subject matter or paragraphs of the Tariff Act of 1930, and also to the division of judicial labor adopted by the court. This construction carries out the intention of Congress and makes every part of the statute effective, harmonious, sensible, workable, and practicable. Crawford, Construction of Statutes, pp. 258-261, sec. 165;¹ Sutherland, Statutory Construction, 3d ed., vol. 2, p. 336, sec. 4703,² p. 338, sec. 4704.

The ideas that the single judge on circuit has the statutory jurisdiction or judicial power or responsibility “to determine” protest cases, i. e., to decide the same and render final judgment therein, or that it is legally permissible for the chief judge to assign single judges at the port of New York to preside over protest cases and decide such cases and render final judgment, or that there is nothing in the law which, takes away from the single judges on circuit or at New York the jurisdiction and judicial power “to hear and determine” protest cases are all very contrary to' the statute and the long-established interpretations and constructions thereof.

By virtue of the fact that Congress granted to divisions of the court exclusive jurisdiction to hear and determine protest cases such as those at bar, single judges, whether on circuit or at the port of New York, are prohibited from “hearing and determining” protest cases, i. e., deciding and rendering final judgment in same regardless of the fact that said protests may be submitted before said single judges. 28 U. S. C. (1948 revision) § 254; United, States v. Park & Tilford, supra; United States v. Saunders, supra; Thomas Prosser & Son v. United States, supra; 17 C. J., p. 608, sec. 87, notes 38-40; and the references to C. J. and C. J. S., heretofore cited.

When the protests were first received by the court in August 1945 the jurisdiction of the first division of the court attached immediately by virtue of sec. 254 of Title 28, U. S. C. (1948 revision), and rule 41 (assignment of protests to the three divisions of the court); and as a consequence the first division had jurisdiction of the parties to the protests and the subject matter of the controversies therein. The judicial authority to “hear and determine” the protests involved herein necessarily includes the power to pass on every question of law and fact necessary to a proper determination of the cases. United States v. Saunders, supra;³ United States v. Kurtz, Stuböeck & Co., 5 Ct. Cust. Appls. 144, T. D. 34192. Since Congress contemplated that single judges on circuit should merely “hear” classification or protest cases, and since said circuit judges by virtue of the long-established practice of the court do not make findings of fact or ultimate fact in protest cases which are heard or submitted before them, it therefore follows that the first division, in which jurisdiction to decide and determine the protest cases involved herein continuously resided, is the sole trier of the protests herein and as a consequence retains the right in its discretion to ratify or reverse rulings which have been made for and on its behalf by the single judge on circuit. And such has been the long-established practice of this court — a practice which is necessarily implied by the rules of the court. (Rules 8, 9, 17, 40, and 41.) Such practice of the division ratifying or reversing the rulings which have been made for and on behalf of the division by the single judge on circuit not only is not contrary to the statute or any of its implications, but is consonant therewith, implements the same, and effectuates the purposes and intent of the Congress.

Until the instant matter arose, the power of a division of this court, before which a case heard by a single judge on circuit was pending, to adhere to or reverse the rulings of the circuit judge was not questioned. Of course, where the circuit rulings are adhered to or affirmed, generally speaking, no mention of such action is necessarily made in the decision of the division which ultimately decides the case. However, divisions of this court in the past have considered the rulings of trial judges on circuit and in some cases have reversed the same. In Sweeney & Johnson v. United States, 61 Treas. Dec. 1331, T. D. 45772, the second division of this court reversed the ruling of a single judge on circuit allowing an amendment to a protest.

In Vuille, Inc. v. United States, 65 Treas. Dec. 159, T. D. 46875, the first division of this court overruled the action of a judge on circuit who denied a motion to dismiss the protest, and the division rendered a judgment of dismissal. When the matter was appealed to the Court of Customs and Patent Appeals one of the assignments of error related to the action of the Customs Court in so dismissing the protest, the contention being that because the Customs Court, heard the evidence upon the merits of the case the judgment should have been either sustaining or overruling the protest. The appellate court, however, said that the Customs Court was “justified in entering a judgment of dismissal,” thus giving the seal of its approval to the action of the division in reversing the ruling of the circuit judge. Vuille, Inc. v. United States, 22 C. C. P. A. 303, 307, T. D. 47349.

In Pacific Dry Goods Co. et al. v. United States, 70 Treas. Dec. 767, T. D. 48666, the second division of this court reversed the ruling of a single circuit judge who had denied a motion of the Government to dismiss certain protests for insufficiency. A like action by the same division in the case of American Import Co. et al. v. United States, 70 Treas. Dec. 1184, Abstract 35198, became the subject of an appeal to the Court of Customs and Patent Appeals under the style of U. Fujita & Co. et al. v. United States. One of the assignments of error made on behalf of the plaintiffs was as follows:

6. In not holding that the decision of the trial judge in overruling appellee’s motion to dismiss was not subject to review by the division of the Customs Court which decided these protests.

In its decision reported in 26 C. C. P. A. 63, T. D. 49611, our appellate court affirmed the action of the division in dismissing the protests, thus approving the custom and practice of the division having cognizance of the subject matter exercising the power to ratify or reverse the rulings of the single judge on circuit.

In Federated Metals Corporation v. United States, 73 Treas. Dec. 574, T. D. 49493, the second division of this court reversed the action of a judge on circuit excluding certain exhibits from evidence.

In John Shillito Co. v. United States, 73 Treas Dec. 1080, Abstract 37499, the first division of this court reversed a ruling of a judge on circuit permitting the incorporation of the record in another case, and a similar ruling was made by the second division in the case of Wilbur-Ellis Co. v. United States, 73 Treas. Dec. 1008, T. D. 49626. The latter case was reversed on other grounds in Wilbur-Ellis Co. v. United States, 26 C. C. P. A. 403, C. A. D. 47, but its action in excluding the record sought to be incorporated was held not to be errror. It is noted that the assignment of error was in the following language: “In reversing the action of the trial judge in admitting in evidence the record in Martinez v. U. S., 24 C. C. P. A., T. D. 48703,” so that the approval of the Court of Customs and Patent Appeals of the second division’s action was with full knowledge of the fact that the division had reversed the trial judge’s ruling.

As late as March 25, 1948, the first division reversed the action of a single judge on circuit incorporating a record in a previously tried case. Paramount Pictures, Inc. v. United States, 20 Cust. Ct. 144, C. D. 1098, which decision has been affirmed by the Court of Customs and Patent Appeals in Paramount Pictures, Inc. v. United States, 36 C. C. P. A. 44, C. A. D. 395, with knowledge by the said court that the ruling of the single judge on circuit had been reversed by the division.

It will be seen that on every occasion when the question of the power of the division having cognizance of the subject matter to overrule the ruling of a circuit judge has been before the Court of Customs and Patent Appeals, the latter court has consistently approved the action of the division when it has exercised that power. The court’s action in those cases is consistent with its expression signifying its knowledge and approval of this element of Customs Court procedure which expression is found in its decision in the case of Rapken & Co., Ltd. v. United States, 25 C. C. P. A. 268, T. D. 49393, at pages 272-3, as follows:

In this somewhat peculiar jurisdiction it not infrequently happens that testimony is taken before a single judge on circuit who does not participate in the final determination of the case. Such judge may, not improperly in our opinion, admit testimony, even though it borders upon the doubtful, and leave it to the full division to winnow the wheat from the chaff, and so long as it does not appear that illegitimate evidence influenced the decision no harm results and no reversible error is committed.

It is argued that if the division “reviewed,” i. e., ratified or reversed the rulings of the single judge on circuit, it would be “acting with appellate jurisdiction” over a judge of “concurrent jurisdiction” with no authority or provision of law therefor. Under the statute it was contemplated that the single judge on circuit at outports would merely

“hear” protest cases and the jurisdiction granted the single judge on circuit never at any time included the right to decide and determine protest cases and render final judgment therein, so that the single judge before whom these cases were submitted was not of concurrent jurisdiction with the first division. Under the statutory scheme and arrangement for the distribution of jurisdictional powers as between the division and the single judge on circuit, the latter had the power and judicial authority to conduct the hearings and to make necessary rulings for the proper conduct of the hearings (rules 8 and 9), but said jurisdictional powers of the single judge on circuit never included the authority to hear and decide the cases, including the authority to pass upon every question of law and fact necessary for a proper determination of the cases, i. e., the rendition of final judgment therein. United States v. Saunders, supra; United States v. Kurtz, Stuböeck & Co., supra. The ratification or reversal by this division of any rulings of the single judge before whom the protests were submitted would be merely the exercise of judicial discretion by the real and actual trier of the case and would in legal contemplation and effect be a “review” of its own acts — ■rulings which had been made for and on behalf of the division by the single judge. This division, retaining at all times exclusive jurisdiction to “hear and determine” the protests, also retains until its final judgment the sole right to pass upon every question of law and ■fact necessary to a proper determination of the cases. United States v. Saunders, supra; United States v. Kurtz, Stuböeck & Co., supra.

It is said that the Customs Court practice and procedure of assigning only single judges to outports “to hear or hear and determine” cases appearing on such dockets is inconsistent with the practice at the port of New York where divisions of the court “hear and determine” cases; and that such practice is unjustifiable and unfairly discriminates against litigants at outports. By the provisions of 28 U. S. C. (1948 revision) sec. 254, and its predecessor, 28 U. S. C. 1946 ed., sec. 296, the chief judge was empowered to—

* * * designate a judge or a division * * * to proceed to any port within the jurisdiction of the United States * * *.

By the express terms of the foregoing statutory provisions, the former presiding and now chief judge was given a power of discretion to designate either a single judge or a division of three judges to proceed to any port. The then presiding judge having exercised the discretion to send a single judge to the port of Seattle, such discretion may not be reviewed or challenged in this or in any other court, there being no showing that the designation of the single judge was not in conformity with law. Martin v. Mott, 12 Wheat. 19, 25 U. S. 32, 6 L. ed. 537.

The single-judge designation for the Seattle docket and calendar, including the protest cases at bar, was consistent with the procedure adopted for all other outports; and said procedure for all outports was uniform, equable, and operated alike upon all litigants at said outports in a just, fair, and nondiscriminatory manner. The custom of not sending divisions of three judges to outports except in exceptional and extraordinary circumstances is a legally justifiable and permissible method of division of judicial labor and mode of conducting the court’s business, and has been expressly authorized by Congress (28 U. S. C. (1948 revision) sec. 254), so that no discrimination results against litigants at outports nor against the litigants herein. The procedure of single-judge designation at outports is neither arbitrary nor discriminatory, but is fair, reasonable, and well-adapted to the purposes sought to be obtained. The due process clause of the fifth amendment does not exact uniformity of procedure in all cases. Congress is empowered to classify litigation and authorize, or permit under a grant of discretionary power, a single-judge designation or a designation of a division of three judges in the discretion of the chief judge. Dohany v. Rogers, 281 U. S. 362, 369.

Moreover, the practice of single-judge designation has been adopted and retained for years because it resulted in large saving of public money, worked well, was satisfactory to the litigants, and caused a minimum of inconvenience at the port of New York where the greater number of customs cases arise. In the cases at bar the litigants did not request the designation of a division of three judges.

It is contended that the Customs Court procedure and practice of the division assuming jurisdiction of protest cases under rule 41 of this court and deciding and determining such cases wherein evidence has been heard by a single judge or judges on circuit is not supported by law either directly or by implication. The practice of the Customs Court is based upon the applicable provisions of the Judiciary and Judicial Procedure Act of 1948, and the various predecessor acts (28 U. S. C. 1946 ed. § 296; 19 U. S. C. 1940 ed. § 1518), and the applicable provisions of the Tariff Act of 1930, the purpose of which statutes was to give the benefit of three-judge-jurisdiction and decision in classification or protest cases,⁴ single-judge decision in valuation or appeals for reappraisement,⁵ hearings and trials for importers at their home ports within the territorial jurisdiction of the United States, and also uniformity of judicial decisions on the same issues and subject matters arising from the impositions of duties under the customs laws.⁶

The retention (unless reassigned by the chief judge before trial) by the division of the jurisdiction to decide and determine the cases and render judgment once the jurisdiction of the division has attached under assignment rule 41 upon the expiration of the statutory period within which the collector might act, is a condition imposed by the plain mandate of the statute applicable to protest cases. 28 U. S. C. (1948 revision) sec. 254; Thomas Prosser & Son v. United States, supra; United States v. Park Tilford, supra; United States v. Saunders, supra. It is wholly by virtue of the provisions of the statute that the single judge'on circuit has nothing to do with the determination and decision of protest cases, even though the single judge has heard the witnesses and observed the demeanor thereof, and formed certain impressions. (Sec. 254 and secs. 2631, 2633, 2635, 2636, and 2640.) In order to carry out the statutory plan and intent to secure more important advantages and benefits for the importers and general public, such as three-judge-decision in protest cases in lieu of the abolished jury trial, the relatively less important benefits and advantages of divisions seeing and observing the witnesses and the demeanor thereof had to be dispensed with in order to realize and secure larger and vastly more important and vital statutory objectives.

But it is contended that the practice of retention of jurisdiction of protest cases by the division and the decision and determination thereof by the division which has not heard and seen the witnesses and observed their demeanor deprives the litigant of due process of law for the reason that the litigant has a right to have the judge who hears the testimony of the witnesses and before whom said case is submitted conclude, decide, and determine the case and render judgment; that there must be procedure requiring the “trial judge” to decide and conclude the litigation over which he has presided.

The process of law afforded all litigants at all outports by the practice and procedure of this court provided such litigants notice, opportunity to be heard before a judge of this court, the right to produce evidence, the right to examine and cross-examine witnesses, the right to make oral and written arguments before the judgé or the division of this court which will decide and determine the case; such process of law is due process of law and is fair and nondiscriminatory, and is entirely consistent with the procedural requirements and substantive rights to due process guaranteed by the fifth amendment. See Willoughby, Constitutional Law of the United States, second edition, p. 1709, sec. 1122; Hagar v. Reclamation Dist., 111 U. S. 701, 28 L. ed. 569.

The division which decides the protest case makes the findings of fact and ultimate fact on which the judgment is based. The litigant is not exposed to any arbitrary exercise of the power of government and the form or mode of hearing is entirely judicial in character.

The litigant has the benefit of a full, fair, and ample hearing after notice given and in conformity with a general law, and the fact that the hearing at an outport is conducted before a judge of this court does not afford the litigant any basis for claiming that the due process clause of the fifth amendment has been violated, the litigant having all the advantages of being heard at or near his home port before a judge of the United States.

The law in respect to this matter is well-stated in 12 Am. Jur., p. 303, as follows:

The procedure or hearing requisite to due process must be appropriate and such as is practicable and reasonable in the particular case. [Italics supplied.] * * * No fixed procedure is demanded. The requirement of due process is met if the trial is had according to the settled course of judicial proceedings by a court of justice having jurisdiction. Any legal proceeding enforced by public authority, whether sanctioned by age and custom or newly devised in the discretion of the legislative power, in furtherance of the general public good, which regards and preserves the principles of liberty and justice, is regarded as due process of law. The cases proceed upon the theory that given a court of justice which has jurisdiction and acts not arbitrarily but in conformity with a general law, upon evidence, and after inquiry made with notice to the parties affected and opportunity to be heard, then all the requirements of due process, so far as it relates to procedure in court and methods of trial and character and effect of evidence, are complied with.

The fifth amendment does not exact uniformity of procedure, and a procedure, as here, which affects alike all similarly situated at out-ports does not violate the due process clause. 16 C. J. S., p. 1126, notes 45 and 46; Dohany v. Rogers, 281 U. S. 362, 369. And Congress had the right to classify litigation and to devise a system whereby one type of procedure might be provided in respect to all classes of cases tried at the port of New York and a different type of procedure for cases tried at outports. Dohany v. Rogers, supra.

Due process of law does not require that the judge or division of three judges which renders the judgment actually see and hear the witnesses testify and observe their demeanor.⁷

The case of United States v. Nugent, 100 F. 2d 215, has been referred to as authority for the proposition that, so far as the Customs Court procedure is concerned, the single judge on circuit who “hears” the evidence in a protest case must conclude, determine, and decide the same. However, an examination of the case will disclose that it is clearly distinguishable from the matter and situation at bar and that such decision is wholly inapplicable here and by the very nature of the subject matter the holding therein cannot be applied to Customs Court practice and procedure.

That case involved an action brought under the Tucker Act (28 U. S. C. § 41 (20)) in a District Court of the United States for an alleged appropriation of private property in consequence of the erosion and washing away of the plaintiff’s land. The evidence was heard by a judge of the District Court who resigned from office without having made the specific findings of facts and conclusions required by the Tucker Act; another district judge under a general designation made the findings of fact and conclusions of law based upon the stenographer’s report of the testimony, and entered judgment. The later judge did not, however, file a written opinion as required by the said act (28 U. S. C. § 764).

The Circuit Court of Appeals (Sixth Circuit) decision held that the Tucker Act impliedly requires that the same judge who hears the case shall make the findings and conclusions and that this requirement was mandatory; whereas the statute governing Customs Court procedure is very different in provision and intent, has no such requirement, and expressly permits single judges to “hear” protest cases at outports but nevertheless requires decision and determination of protests by divisions of the court. Moreover, the decision in the Nugent case rested as much or more upon the holding of the court that no written opinion was filed in the case by the judge who decided the case, and that the filing of a written opinion was mandatory under the terms of the Tucker Act since such written opinion was held to be necessary for the personal use of the Attorney General in his determination whether an appeal should be taken from an adverse judgment. A mere reading of the opinion will reveal that the holding was intended to apply to proceedings or suits under the Tucker Act only, and was not intended to have general application.

Because the territorial jurisdiction of the United States Customs Court is so vast, comprising the entire continental United States, Puerto Rico, Alaska, and Hawaii, it is wholly impractical to send from New York to every port of the United States at which hearings might be had each division of the court having jurisdiction of cases set for hearing at such ports. To do this would require the attendance and presence of all the nine judges at each docket outside of New York City and would also hamper and impede the work of the court at New York City, where approximately 70 percent of the Customs Court cases arise.

The most obvious method of avoiding such overwhelming difficulties has been to adopt the procedure which Congress contemplated and which the act permits and send one judge of the court who is empowered to hear the cases as and for each division of the court. It is true that this procedure results in a decision ofttimes by divisions of three judges none of whom have personally seen the witnesses or heard their testimony, but due process of law does not require that the judge or division of judges which makes the findings of fact and renders judgment actually see and hear the witnesses in a case; and, besides, the disadvantages occasioned by such method of procedure are more imaginary than real and are far outweighed by prompt dispatch of the court’s business, freedom from unwieldiness of operation, economy of time, effort, and public money saved thereby. That such method of procedure is legally as well as practically justified is demonstrated by the more than 58 years it has been in satisfactory use and its universal acceptance by the bench, bar, legislature, and litigants involved. All that due process requires is that the proceeding or hearing be appropriate, practicable, and reasonable in the particular case. Hagar v. Reclamation Dist., 111 U. S. 701, 28 L. ed. 569; 12 Am. Jur. p. 303, sec. 608. The Customs Court procedure is appropriate, practicable, and reasonable. And where a course of procedure has been so long followed by the court, such fact alone argues legislative authority therefor. Tower Manufacturing & Novelty Co. v. United States, 6 Ct. Cust. Appls. 267, 270, T. D. 35478.

The suggested procedure whereby single judges on circuit and elsewhere would decide and determine all cases heard and submitted before them would not only violate the statute in respect to protest cases, but would also nullify the congressional objectives and purposes, destroy the uniformity of judicial decision on the same issues and subject matter in respect to the imposition of customs duties, create insuperable difficulties in respect to the conflict of jurisdiction between and among the nine judges and the three regular divisions of the court, and bring chaos in regard to the assignment of cases.

It must be remembered that—

One of the most important reasons for the creation of a Board of General Appraisers [⁸] [predecessor to the United States Customs Court] was to secure through that body uniformity of appraisement and classification. [Italics supplied.] — Wolff v. United States, 1 Ct. Cust. Appls. 181, 188, T. D. 81217.

The intention and purposes of Congress in creating the Court of Customs Appeals (predecessor to our appellate court) and the Board of General Appraisers (predecessor to this court) have been well set forth in Willoughby, Constitutional Law of the United States, second edition (1929), pp. 1259-60, as follows:

§ 791. United States Customs Court: Formerly United States Board of General Appraisers.

By acts of June 10, 1890 [26 Stat. at L. 131], May 28, 1908 [35 Stat. at L. 406], and August 5, 1909 [36 Stat. at L. 105], original jurisdiction oyer cases and controversies arising out of the collection of the national customs revenue was transferred from the Federal District and then existing Circuit Courts to the Board of General Appraisers, with appeal to the United States Court of Customs Appeals, and, in certain cases, with ultimate appeal to the Supreme Court. The Board was given authority to determine questions arising in such cases under the Constitution and laws of the United States and under treaties between the United States and foreign countries.

§ 790. Court of Customs Appeals. ’

This tribunal was established by the act of August 5, 1909 [36 Stat. L. 105], in order to reheve the then existing Circuit Courts from the trial of cases relating to the classification of goods and the customs duties leviable upon them, as well as to obtain a uniformity of holdings as to these matters. [Italics supplied.]

Under the advocated procedure of the single-judge decision and determination of protest cases heard and submitted before the said judge on circuit or elsewhere, it is clear that there might be several or even conceivably nine different judicial decisions on the same issue and same subject matter involving the imposition of customs duties, further complicated by the fact that in respect to each protest case where the single circuit judge had rendered decision one of the three regular divisions into which the court is divided would also have undoubted statutory right to render judgment in each of such cases, and as a result the uniformity of judicial decision on customs matters sought by Congress would be completely destroyed and the effect of these conflicting decisions upon the business and commercial world would be disturbing and disastrous. And it seems reasonably probable that under such conditions a tremendous number of cases would havé to be appealed to our appellate court.

In addition to all these adverse and disturbing results of the lack of uniformity, aggravating and confusing conflicts of' jurisdiction would arise (1) between and among the nine single judges who might at one time or another hear a part or portion of the testimony of a case or do some judicial act or make some order in connection therewith; or (2) between and among all, some, or any one of the nine judges and one of the three regular divisions of the court.

It seems manifest that the circuit judge does not act as an individual judge, independent of any division in respect to the hearing of protest cases at outports. As has been pointed out only divisions of the court have power to hear and determine classification cases. Any action as an individual judge would presuppose acquisition of jurisdiction from the division, which could only be acquired by reassignment of the case by the chief judge. In this case the then presiding judge did not assign to Judge Cline the classification cases on the Seattle calendar; he authorized her to proceed to that port “for the purpose of hearing or of hearing and determining” the cases assigned for hearing at that port. He was obviously following the words and intendment of the statute in effect at the time Judge Cline received her designation. The actions of both the presiding judge and Judge Cline in this case were inconsistent with a divesting of the jurisdiction of the division over the cases and transferring the same to Judge Cline. Furthermore, the presiding judge could not have assigned the cases to Judge Cline under the then-existing statute, 28 U. S. C. 1940 ed. § 296, because the hearings or trial had already commenced and he was powerless to reassign the cases.

It has been suggested that unless the single judge on circuit has the power to decide and determine the protest case he becomes a mere commissioner “with no powers of a court.” It is obvious that this contention is without merit, because the single judge on circuit does not receive any appointment or commission from the division having jurisdiction of the case. The single judge on circuit is empowered by the act of Congress itself to hear all protest cases at outports, and such single judge is designated to hold such hearings by the presiding or chief judge under a grant of discretionary power included in the statute. Besides, the judge on circuit is a member of the court and is of equal judicial rank with the judges of the division having jurisdiction of the cases. Moreover, the hearing of cases by the single judge is by virtue of a general power granted by the Congress, and is in no manner limited to particular issues or particular cases, as would be the situation of a commissioner.

As has been said before, the single judge on circuit does not have concurrent power with the division in respect to the decision and determination of protest cases heard on circuit because such an assumption would imply a jurisdiction equal with that of the division, which assumption is negatived by the fact that the statute confers exclusive jurisdiction upon the division. United States v. Saunders et al., supra, 17 C. J., p. 608, sec. 87, notes 38-40; 28 U. S. C. (1948 revision) § 254.

If we consider that the single judge, when hearing a protest case on circuit, acts as and for the division having cognizance of the subject matter, and, in fact, is the division on circuit, the long-established and customary distribution of jurisdictional powers as between the single judge on circuit and the division becomes rational, reasonable, appropriate, and practicable, and the statute becomes workable. In this view of the matter the protest case is determined by the division to which it was assigned (automatically by rule 41 of the court) and which was the real “trier” of the case. This construction of the statute makes proper the sending on circuit of a judge with his attendant judicial power and dignity, and makes a logical division of the labor of the court, and likewise makes possible uniformity of judicial decision on the same issues and same subject matter. Such a construction also makes unnecessary any reassignment of cases; jurisdiction of the division over classification cases beginning and remaining in the division having cognizance of the subject matter.

It follows from what has been said that the actions and rulings of circuit judges in classification cases are, in effect or legal contemplation, the actions and rulings of the division having jurisdiction. That a division or a court may, in its sound discretion and in the interests of justice, reverse its own action or ruling before judgment does not seem to be open to question; and in ratifying or reversing the actions of a single judge on circuit the division would not be acting with appellate power or jurisdiction.

Of course, such power should be reasonably exercised under just conditions so as not to injure the opposite party and so as not to deprive either party of the opportunity to introduce material evidence in view of the changed state of the record. Following «the long-established practice and custom whereby divisions of the court have ratified or reversed the actions and rulings of the single judge on circuit, which practice and custom our appellate court has had knowledge of, has acquiesced in, and tacitly approved, and because of the express provisions of the statute and the necessary implications thereof, we conclude that the first division has jurisdiction to entertain the motion and pass thereon.

After a careful examination and consideration of the plaintiffs’ motion, the supporting papers, the defendant’s memorandum in opposition, the transcript of the argument on the motion, and the record in the case at bar, we believe that the motion should be denied for reasons which go both to the form and substance thereof. As to the form of the motion, the record in this case shows that on September 19, 1947, at the port of Seattle there was a voluntary submission (R. 2547) by counsel for both parties of the case for decision by this court. The motion before us is essentially one to permit the taking of further proof. We know of no maimer in which that may be done after submission in this or in any other court without an order of the court setting aside the submission or reopening the case. United States v. 3,376.1 Acres of Land, 27 F. Supp. 1023. The motion at bar does not contain any application for an order setting aside the submission and reopening the case, and consequently the motion as made would merely add confusion to an already seemingly overextended record.

Secondly, a reading of the body of the motion shows it to be drawn in an indefinite manner. The first paragraph moves “for a review of rulings” made by the trial judge on September 19, 1947; the second paragraph identifies the rulings by page number and general scope; and the third paragraph refers to the plaintiffs’ “reason for seeking a commission,” without moving the issuance of such commission. This oblique reference to the purpose of the motion hardly seems to amount to the statement of a motion or the apprisal of the opposite party and the court of the relief sought thereby.

As to the substance of the motion, we are of the opinion that the motion for a review of the trial judge’s rulings should be denied for the reason that the rulings in question were correct. A reading of the questions, the objections to which gave rise to the rulings sought to be reviewed, as well as the offers of proof made by counsel for the plaintiffs, establishes that the answers called for would have been beyond the qualifications of the witness to give, would have required the assumption of facts not in evidence, and would have resulted in the usurpation and invasion by the witness of the judicial functions of the court.

The motion is therefore denied.

1 “Inasmuch as the language of a statute constitutes the depository or reservoir of the legislative intent, in order to ascertain or discover that intent, the statute must he considered as a whole, just as it is necessary to consider a sentence in its entirety in order to grasp its true meaning.**

*******

“Hence, the court should, when it seeks the legislative intent, constiue all of the constituent parts of the statute together, and seek to ascertain the legislative intention from the whole act, considering every pro* vision thereof in the light of the general purpose and object of the act itself, and endeavoring to make every part effective, harmonious, and sensible.”

2 “* * * A statute is passed as a whole and not in parts or sections and is animated by one general purpose and intent. Consequently, each part or section should be construed in connection with every other part or section so as to produce a harmonious whole.**

3 At p. 272: “* * * As Board 3 had jurisdiction both of the parties and of the subject matter of the controversy, and as its right-to proceed has never been put in issue, we must conclude that it had the exclusive power at first instance to pass on every question of law and fact necessary to a proper determination of the case.”

4 United States v. Park & Tilford, 4 Ct. Cust. Appls. 293, T. D. 33514; United States v. Saunders, 5 Ct. Cust. Appls. 270, T. D. 34446; Thomas Prosser & Son v. United States, 158 Fed. 971.

5 28 U. S. C. (1948 revision) § 2631 ec seg.] 17 C. J., p. 608, sec. 87, notes 38-40; 17 C. J., p. 624, sec. 135, note 49; 17 C. J., p. 653, sec. 263, note 35; 25 C. J. S., p. 339, sec. 181, note 97.

6 E. E. Smith, Customs Valuation in the United States (1948), pp. 134-5:

“The Payne Act thus completed the reforms in customs jurisprudence begun by the Administrative Act of 1890. Although the Board of General Appraisers had operated efficiently under the earlier act, it only partially relieved the circuit (district) courts of the tremendous volume of litigation, since the number of applications for review by such courts was constantly increasing. The decisions of the circuit courts in many cases could be appealed all the way up to the Supreme Court. The congestion of court calendars was so great that the average life of a customs appeal after leaving the Board of General Appraisers was four and one-half years. The act of May 27, 1908, requiring the review of all cases on the basis of the original record of the board, reduced this to two and one-half years,⁴¹ But, apart from the element of delay, a fundamental defect in the procedure lay in the fact that each of at least one hundred and twenty judges throughout the federal judiciary was a possible final arbiter of customs appeals. The impossibility of any uniformity in the interpretation of customs laws under these conditions is obvious. The raising of the Board of General Appraisers to the circuit-court level eliminated, in one step, more than half the number of judicial arbiters in customs cases. The creation of the Court of Customs Appeals removed all others but the Supremo Court and completed the task of concentration and specialization. The fruits of this legislation have been threefold: the speedier disposition of customs litigation; greater uniformity of decision; and the higher quality of decision made possible by the high degree of specialization on the part of the customs judiciary.”

(See also W. H. Eutrell. The History of American Customs Jurisprudence (1941;, pp. 86-90, 177-179; Wolff v. United States, 1 Ct. Oust. Appls. 181. T. D. 31217.)

41 U. S. Treasury, Annual Report, 1908, pp. 58-59. The procedure in reviewing the board's decisions under the 1890 act had permitted the referral to the board by the court for the taking of such additional testimony as either litigant chose to furnish. This amounted in most cases to a trial de novo by the circuit court after the return of the additional evidence, since neither litigant was disposed to present his entire case initially before the board.

7 16 C. J. S., p. 1271, note 40. “Due process of law does not forbid hearing of a cause on a transcript of evidence formerly heard in court, * * * ” and citing De la Rama v. De la Rama, 241 U. S. 154, 60 L. ed. 932.

8 The Board of General Appraisers was a judicial tribunal clothed with judicial powers. Marine v. Lyon, 65 Fed. 992, 994; Stone v. Whitridge, 129 Fed. 33, 36; United States v. Macy & Co., Inc., 13 Ct. Cust. Appls. 245, T. D. 41199; United States v. McConnaughey, 13 Ct. Cust. Appls. 112, T. D. 40944; United States v. Kurtz, Stuböeck & Co., 5 Ct. Cust. Appls. 144, T. D. 34192.