Memorandum by the Assistant Secretary of State (Rogers)
Coal Excise Case
The German Ambassador went over this asking the situation and citing the decision of the Supreme Court60 on the British rumboat treaty61 as a precedent for the German position. I told him the State and Treasury Departments had both felt that independent of any question of the priority between an act of Congress and treaty obligations, the Revenue Act of 1932 had expressly preserved our treaty obligations and both Departments had felt that German coal should come in free of the new tax. However, the Attorney General, without reaching the merits, had prevented this by a ruling regarding the procedure, [Page 509]that the matter was now in the courts and that under our system of government there was nothing to be said or done until the courts acted.
The Ambassador said he appreciated the situation but wanted to know the attitude of our Government because the German importers were pressing him for news and his Government wanted to define the issue. I told him the issue at the moment was one for the courts, that the Supreme Court decision in the British rum treaty threw no light on our present case except to accentuate the constitutional conclusion that the last legislative act, whether treaty or statute, controlled. I said this point was not involved in the coal situation at any rate at this stage.