while in the custody of the collector is here challenged as contrary to the provisions of the Revised Statutes, section 2965.

The sole testimony offered in support of protestant's claim, which was sustained by the Board of General Appraisers, was what was testified would be the regular charge, 6 cents, for the transportation of matches for the same distance by private employment per individual engagement. Upon this testimony is predicated a conclusion that the Government charge is unauthorized by law and unreasonable.

Section 2965 of the Revised Statutes was a provision of the act of March 28, 1854. It was codified in the Revised Statutes as section 2965, as follows:

SEC. 2965. Unclaimed merchandise required by existing laws to be taken possession of by collectors of the customs may be stored in any public warehouse owned or leased by the United States, or in any private bonded warehouse authorized by this title, and all charges for storage, labor, and other expenses accruing on any such merchandise, not to exceed in any case the regular rates for such objects at the port in question, must be paid before delivery of the goods on due entry thereof by the claimant or owner; or, if sold as unclaimed goods, to realize the import duties, the charges shall be paid by the collector out of the proceeds of the sale thereof before paying such proceeds into the Treasury as required by existing laws.

The reasoning of the opinion of the majority of the court herein and of the Board of General Appraisers and the Treasury Department in the several cases cited is based upon the language of this section of the Revised Statutes unaffected by other provisions of the law.

The preexisting statutes codified as the Revised Statutes of the United States were approved and became effective as such June 22, 1874. Approved and becoming effective the same day, June 22, 1874, and as section 25 of "An act to amend the customs-revenue laws," etc., Congress enacted as follows:

SEC. 25. That public cartage of merchandise in the custody of the Government shall be let after not less than thirty days' notice of such letting to the lowest responsible bidder giving sufficient security, and shall be subject to regulations approved by the Secretary of the Treasury.

While the two acts bear the same date of approval, as to the former it was by section 5601 of the Revised Statutes provided:

SEC. 5601. The enactment of the said revision is not to affect or repeal any act of Congress passed since the first day of December, one thousand eight hundred and seventy-three, and all acts passed since that date are to have full effect as if passed after the enactment of this revision, and so far as such acts vary from or conflict with any provision contained in said revision they are to have effect as subsequent statutes and as repealing any portion of the revision inconsistent therewith.

The act of June 22, 1874, section 25, in so far as its language modified the previous act of 1854, codified as section 2965, Revised Statutes, therefore expressly amended or repealed the same.

This legislation, therefore, seems to have expressed this legislative status: Prior to the enactment of said section 25, drayage charges for

unclaimed goods in the custody of collectors of customs and for the purposes of customs administration as to such goods were to be contracted by the collector of customs at the port of importation as in his discretion seemed prudent. Thereunder he might let the contract for such by private engagement or public advertisement or otherwise. That it was a matter of individual arrangement and adjustment in every instance is further evidenced by the provisions of section 2965, wherein it is provided that such "charges shall be paid by the collector out of the proceeds of the sale thereof before paying such proceeds into the Treasury as required by existing laws." That statute made the incurring and disbursement of such charges. matters relating to the specific importation, and hence the practicability of compelling the collector, and his ability in such cases, to adjust these charges with reference to the usual charges and the regular commercial or business rates prevailing at the given port for the same service. The enactment, however, of said section 25 changed this condition. It deprived the collectors at their respective ports of the power to negotiate and contract as to the drayage of an individual quantity or lot or goods as would any merchant at that port, wherein would be figured the exact kind and quality of goods to be transported, the distance of the haul of the particular lot, the possibility of the benefits of a shorter equalizing the disadvantages of a longer haul, the annual business compared with a single engagement, and the desire for further business, and required that drayage charges for the transportation of merchandise in the custody of collectors of customs should be let for definite periods of time upon 30 days' notice to the lowest responsible bidder. To the extent of this modification and curtailment of the legal powers of the collectors of customs section 25 of the act of 1874 repealed and modified section 2965 of the Revised Statutes.

In this new legal status, with the powers of the collector thus circumscribed by law, the nature of the contract which the collector was to make was greatly modified. The provision of section 2965, which required that reasonableness of such contracts when made by a collector should be measured and determined by similar contracts at that port made by merchants was supplanted in the law by a provision requiring that the reasonableness and legality of contracts thus let by the collector of customs should depend upon the statutory requirement that they should be let to the lowest responsible bidder after 30 days' public notice and as required by the Secretary of the Treasury. There is no question, and it is not suggested by any one in this case, that the requirements of the law in this particular were not duly observed by the collector of customs at the port of Baltimore. It would seem, therefore, that having pursued the law and the regulations in this behalf expressly authorized by Congress for such cases,

21500 VOL 4-11-24

any charge made by the collector of customs in accordance therewith is at least until so specifically challenged a valid charge.

Furthermore, if there is sustained any legal challenge in this case it must be based upon the fact that the law has not been pursued or that the regulation which controlled the nature and character of the charges by the Secretary of the Treasury was unreasonable. It appears from the record that this regulation, which the Secretary of the Treasury is expressly empowered under section 25, supra, to make, controlling the particular situation, is and has been that such contract shall be for a flat rate, taking into consideration neither the distance of the transportation nor the size of the packages. We are not perpared to say that, acting upon the experience of more than half a century with the transportation of goods within the customs custody, such a regulation or charge made thereunder is unreasonable. Certainly upon the evidence in this case, which concerned the transportation of but one ascertained class, size, and weight of merchandise for a definite distance, it ought not to be declared that this requirement of the Treasury Department made nder a statute expressly vesting in the Secretary of the Treasury the power of determination as to the character of such charges, and which no doubt has been continued for quite half a century, is unreasonable.

It was in effect held by the Supreme Court of the United States in United States v. Whitridge (197 U. S., 135, 141) that "public and well-known facts" attending the policy of the Treasury Department in the administration of a statute as evidenced by its official requirements are a proper basis for the conclusion of the court.

It is equally likewise known that, in the enforcement of section 25 of the act of 1874, acting under the power therein expressly vested in the Secretary of the Treasury, it has been the well-known policy expressed in the regulations for more than a quarter of a century at least to let such contracts upon flat rates. The wisdom and the fairness and the justice of that course are testified to by the fact of the limited number of instances wherein such contracts have been questioned.

This policy of the Treasury Department thus expressed is not one without a basis of reason and law or confined to an individual class of cases, but is one which attends the administration of the customs laws in various branches thereof. It is based in part upon the sound legal maxim de minimis non curat lex and upon the fact that in the administration of this law the expenses and delays of its administration in the interests of the public can be greatly minimized by a nonobservance of too minute detail. An illustration is had in the practice of collectors of customs in determining amounts of duties. For many years it has been the custom in the presence of this policy not to take into consideration fractions of a dollar. If the amount aggregates over 50 cents, a dollar is taken; if less, nothing, or the next

lower sum in even dollars. This policy of the enforcement of the law has not only been adjudicated and long settled by administrative practice and has been presumably known to the Congress, but has rested undisturbed for so long a period of time that under the principle of legislative and administrative construction it has become a part of the law of the land. See G. A. 6479 (T. D. 27716).

This brings us to another phase of the question. It would seem, were we to follow the conclusion of the majority of the court in this case, it would be impracticable, if not quite impossible, for the Government to adopt the policy in the making of drayage charges as indicated by the opinion in this case. We respectfully submit that this of necessity will follow, and that interminable detail and an impossibility of performance with no more exact or approximate conformity to regulate commercial rates than that here occurring would of necessity follow. It is said:

If it is for the best interests of the Government to let its cartage contracts upon the flat-rate basis, and the record in this case does not show whether such is or is not the fact, although it may be presumed, nevertheless, we see no practical or other objection to requiring the Government to charge the regular commercial or business rates prevailing at a given port for the same services. It would seem that if in a particular case this flat rate was lower than such regular rates the Government would be justified in requiring importers to pay the regular rates; but however this may be, if such flat rate is higher than the regular rates we think the importer can not be required, in view of the statute, to pay a rate that is so much in excess of the regular rates as was charged here.

Before acceding to the doctrine stated, which has the virtue and persuasiveness of individual fairness, let us bear in mind that the collector in making these charges is controlled by a statute which requires that such contracts must be let for a stated period of time. upon 30 days' public notice; that at the time of letting such contracts no individual importation is in view to be made the basis thereof, and that such contracts must cover an infinite variety of sizes and weights of packages containing an equally infinite variety of merchandise, frangible, solid, and otherwise, to be hauled for an infinite variety of distances, ranging from the width of the street, possibly, to longer distances of transportation. It is to be here borne in mind. that the statute which controls the character of the contract to be let by the collector covers not only drayage from the wharves to the public warehouses, but the other great variety of distances which may occur in the governmental transportation of goods.

The impracticability, if not the impossibility, of letting such a public contract is well illustrated here. The sole testimony in this case, for example, is that the importer could have had these cases of matches transported for this definite distance at 6 cents instead of 18 cents, as charged by the Government. It does not follow that this importer could have had a case of iron or lead or diamonds of the

same size transported the same distance for the same price. Nor does it follow that any drayman would have transported a case half that size filled with dynamite for the same price. So that if a public contract covering an extended period of time, to be let upon public notice of 30 days, is to be tested as to its legality and its validity and reasonableness by testimony as to the cost of transporting a single class or kind of merchandise of a particular weight for a particular distance, in order that these public contracts made by the Government should stand this test of reasonableness, there would have to be covered into the same as a part thereof specifications covering not only every fraction of distance over which the merchandise might be transported, but every variety and kind and class of merchandise of every variety and kind and class of weights, sizes of packages, and conditions as to inflammability and otherwise. And, then, this being so done under the rule of this case whenever it was shown that in an individual instance of this great variety of such a charge made was admeasured alone greater than could be secured under different conditions and circumstances, denial of the Government's right thereto would be upheld.

It is a well-established and fundamental principle of law that a construction shall not be put upon a statute which will render its enforcement impossible or impracticable. Particularly must this be true in the construction of the customs administrative laws and regulations. In such cases the courts have always upheld the principle that where the purpose of the statute is the collection of the revenues necessary for the conduct of the affairs of the Government, though stringent and though rendering aʼminor hardship in the particular case, such laws must be upheld upon the ground that the individual sufferer must yield to the public good and the fiscal necessities of the Government.

A construction should not be put upon a statute which makes its performance impossible or impracticable. Chew Heong v. United States (112 U. S., 536, 554, 555); Shaw v. Railroad Co. (101 U. S., 557, 562, 565); People's Bank v. Batchelder (51 Fed., 130, 136).

We are particularly impressed with the fact and the public knowledge that the Government in the administration of its customs laws has, after many years of experience, found this class of charges the most practicable and satisfactory in the expeditious transportations of this branch of the Government's business and that it is well known that such has been the policy of the Government and the Treasury Department, acting under the express authority granted by this statute, for more than a quarter of a century at least. In this view this court should long hesitate to interrupt this well-settled practice of the Government, particularly when the rule enjoined by the court is equally vulnerable to like assault.