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for exportation without payment of duties. Incidentally, there is provision for the removal of the refined metal for domestic consumption, upon entry and payment of duties. The primary object being the smelting or refining of imported ore or metal in bond, the ascertainment of the refined product, and its exportation without the payment of duties, a method is provided for determining from day to day the supposed actual product of the imported ore or metal smelted or refined. This is done by requiring each day a quantity of refined metal equal to 90 per cent of the amount of the imported metal smelted or refined that day to be set aside. The exportation of this refined metal cancels the warehouse bond and exempts from duties the imported ore or metal out of which it is made; but if the refined metal is removed for domestic consumption there must be a proper entry and payment of the regular duties, not on the refined metal withdrawn, but on the ore or crude metal originally imported.
In the present case, when the refined lead set aside was withdrawn for manufacture, the duties had to be and were paid upon the base bullion originally imported. These duties were computed at the rate of 24 cents per pound upon the base bullion (tariff act of 1897, par. 182), thus applying to every weight-giving ingredient; and not, as in the case of lead-bearing ores, at a rate per pound on the lead contained therein (par. 181). The duties paid on the base bullion can not, therefore, be treated as duties paid simply on the refined lead set aside, there being other products which entered into the weight of the base bullion, namely, the excess of the refined lead recovered over that set aside, and the gold and the silver. Whether individually dutiable or not, they paid duty as part of the base bullion imported.
Section 30 of the act of July 24, 1897, under which this application is made, provides that the drawback shall be "equal in amount to the duties paid on the materials used, less 1 per cent of such duties.”
In this case the material used was the refined lead set aside; and while it was necessary, in order to withdraw this, to pay the duties on the imported base bullion, the drawback should be limited under the law to the proportion of those duties represented by the refined lead set aside and actually used in the manufacture of the exported shot.
The conclusion I have reached after careful consideration is that the action of the Department in allowing the drawback was proper and lawful under the circumstances. Respectfully,
JOHN K. RICHARDS,
JOHN W. GRIGGS.
ANTIMONY-DRAWBACK REQUIREMENTS. Section 29 of the act of July 24, 1897 (30 Stat., 210), which regulates
the smelting or refining for exportation of crude metal in bonded warehouses, requires that each day a quantity of the refined metal equal to 90 per cent of the amount of imported metal in crude form smelted or refined that day be set aside; not that 90 per cent of the refined product must be set aside. This is true of antimony, notwithstanding its volatile nature, which makes it impossible, as it is claimed, to recover from the bullion 90 per cent of the antimony which it contains as shown by assay.
DEPARTMENT OF JUSTICE,
May 11, 1900. Sir: Section 29 of the tariff act of July 24, 1897 (30 Stat., 151), provides a method for smelting or refining imported ore or crude metal in a bonded warehouse for exportation without payment of duties. Incidentally, there is provision for the removal of the refined metal for domestic consumption upon entry and payment of duties. The primary object being the smelting or refining of the imported ore or metal in bond, the ascertainment of the refined product, and its exportation without the payment of duties, a method is provided for determining from day to day the product of the imported ore or metal smelted or refined. This is done by requiring each day a certain quantity of the refined metal recovered from the imported ore or bullion to be set aside. The exportation of the retined metal or metals thus set aside cancels the warehouse bond and exempts from duties the imported ore or metal out of which it is produced. The proviso defining the quantity of refined metal to be set aside each day reads as follows:
“ Provided, That each day a quantity of refined metal equal to 90 per cent of the amount of imported metal smelted or refined that day shall be set aside," etc.
From your communication of April 23, and the inclosures, it appears that M. Guggenheim's Sons, operating works at Perth Amboy, N. J., are engaged in smelting and refining imported lead bullion carrying a small percentage of antimony. They represent that, owing to the volatile nature of antimony, it is impossible to recover from the lead bullion 90 per cent of the antimony which it contains as shown by assay. They have, therefore, applied to your Department for relief from the necessity, existing under the present regulations, of exporting more antimony than they can recover from the imported bullion in order to cancel the warehouse bond; and, following their suggestion, you submit the question whether the quantity of refined metal to be set aside for exportation under the proviso I have quoted, should be equal to 90 per cent of the dutiable metal shown by assay to be contained in the imported ore or metal, or should be equal to 90 per cent of the refined product, as claimed by them.
A reading of section 29, and more particularly the proviso referred to, makes it clear, it seems to me, that this is not a case for construction. The language is so plain as to leave no room for construction. The section provides that each day a quantity of refined metal equal to 90 per cent of the amount of imported metal smelted or refined that day shall be set aside.” The “imported metal smelted or refined” is the metal contained in the imported ore or bullion smelted or refined. The amount of such imported metal is ascertained by an assay of the imported ore or metal. The amount of imported metal having been thus ascertained, each day a quantity of refined metal equal to 90 per cent of the amount of imported metal in crude form smelted or refined that day must be set aside. The meaning of this language is unmistakable. It is capable of no other construction than that adopted by your Department from the beginning.
In the above I have necessarily confined myself to a consideration of the question of statutory construction submitted, and I am not to be taken as intimating an opinion upon any question of administrative authority with respect to the cancellation of warehouse bonds, which may be suggested by the peculiar circumstances of this case. Respectfully,
JOHN K. RICHARDS,
JOHN W. GRIGGS.
STATUTORY CONSTRUCTION-CHINESE SECRETARY.
The change of name from “Interpreter to legation to China" to
“Chinese secretary” in the appropriation act for the diplomatic and consular service, approved April 4, 1900 (31 Stat., 60), did not create a new office, but is merely a new name for the same office, and an appointment to this position by the President does not require the confirmation of the Senate.
DEPARTMENT OF JUSTICE,
May 11, 1900. Sir: By your letter of May 8 you inform me that the appropriation act for the diplomatic and consular service for the year ending June 30, 1901, approved April 4, 1900, contains the following item:
“Chinese secretary, legation to China, and interpreter to legation to Turkey, at three thousand dollars each, six thousand dollars."
And you desire to be advised whether, the officer being thus designated as “Chinese secretary” rather than “interpreter,” the President is required to nominate him to the Senate, or whether it will be sufficient to have the commission merely signed by the President in the same manner as the commissions of interpreters who are not confirmed by the Senate.
I have the honor to state in response that the provision of the Constitution, Article II, section 2, paragraph 2, is that the President “shall nominate, and by and with the advice and consent of the Senate, shall appoint ambassadors, other public ministers and consuls, judges of the Supreme Court, and all other officers of the United States, whose appointments are not herein otherwise provided for, and which shall be established by law; but the Congress may by law vest the appointment of such inferior officers as they think proper in the President alone, in the courts of law, or in the heads of departments."
Section 1680 of the Revised Statutes provides that the compensation of the secretary of the legation to China, if acting as interpreter, shall be at the rate of $5,000 a year, and if not acting as such, at the rate of $3,000 a year; and the President may appoint for the legation to China an interpreter when the secretary of the legation does not act as such, who shall be entitled to compensation at the rate of $5,000 a year. Regarding the “Chinese secretary” as the interpreter under another name, it is evident that the compensation under section 1680 has been changed by the appropriation act approved April , 1900, supra. The concluding portion of the same paragraph of the last-mentioned act is as follows:
“But no person drawing the salary of interpreter as above provided shall be allowed any part of the salary appropriated for any secretary of legation or other officer."
If, then, the Chinese secretary is in reality an interpreter, it is clear that he is not to be regarded in any sense as a secretary of legation, and for that reason to be appointed by and with the advice and consent of the Senate.
Further, the heading of the provision quoted from the diplomatic appropriation act is “Salaries of interpreters to legations.” I am, therefore, of opinion that by the change of name from "interpreter to legation to China" to Chinese secretary” a new office was not created, which, in the absence of any direction by Congress, would fall within the constitutional requirement of appointments by and with the advice and consent of the Senate.
It is universally true, I think, that when Congress, in