DISSENTING OPINION
Garrett, Judge:Being unable to agree with the conclusion reached by the majority of the court in this case, and because the question involved appears to be quite an important one, I venture briefly to state my own conclusions and the reasons therefor.
U. S. C. 304, R. S. 356, provides:
The head of any executive department may require the opinion of the Attorney General on any question of law arising in the administration of his department.
Acting under this statute, the Secretary of the Treasury on October 22, 1925, addressed a letter to the Attorney General, stating that he had under consideration the matter of prescribing the duties of the Director of Customs pursuant to the act of March4,1923 (ch. 251, 42 Stats. 1453), and requesting the Attorney General to advise “whether, under the authority contained in the act of March 4, 1923, the statutory duties and others of a similar character imposed upon the Secretary of the Treasury by the acts mentioned, may be delegated by him to the Director of Customs to be examined by the latter by direction of the Secretary.”
In his letter the Secretary referred specifically to sections 161, 248, and 249 of the Revised Statutes, the act of December 18, 1890 (ch. 22, 26 Stat. 690), the Food and Drugs Act of June 30, 1906 *177(ch. 3915, 34 Stat. 768), section 201 of the Emergency Tariff Act of' May 27,1921 (ch. 14,42 Stat. 9), and the Tariff Act of September 21,. 1922 (ch. 356, 42 Stat. 858).
The Attorney General, responding to this request, reviewed the-. several statutes so called to his attention and speaking, first, of certain regulations called for under certain of these statutes said:
The making of regulations of this kind designed to have the force of law, to. be binding upon the public, and to be recognized and enforced by the courts is,. I think, a duty which the statutes place upon the Secretary personally.
The Attorney General then continued:
In my opinion the powers conferred upon the Secretary by section 201 of the act of May 27, 1921, the so-called antidumping provision, are intended to be-personal to the Secretary, and the findings and their publication should have his. personal approval.
So, too, I think the provisions of sections 616, 617, and 618 of the Tariff Act of September 21, 1922, relating to the compromise of claims and the abatement of' fines, penalties, and forfeitures require the personal action of the Secretary. I think the powers and duties under the other provisions of law mentioned in your letter, and to which I have referred, may be delegated by you .to your subordinates, as you may deem wise. Opinions of the Attorney General, folio 35, p. 15.
The act of March 4, 1923 (ch. 251, 42 Stat. 1453), was entitled:
An act to provide for the necessary organization of the Customs Service for an adequate administration of the Tariff Act of 1922 and all other custom revenue laws.
The first section of the act authorized the Secretary of the Treasury to appoint a Director of Customs and certain assistants and prescribe their duties “when not otherwise defined by law.”
By an act of March 3, 1927, which was to take effect April 1, 1927, Congress provided for the creation of a Bureau of Customs in the Department of the Treasury. This act was in the nature of a substitute for the Act of March 4,1923, supra, and gave to the Secretary substantially the same powers in the matter of reorganization of the Customs Service as were given in the former law. The Secretary, on March 18, 1927, issued his order, T. D. 42044, fixing the organization under the Act of March 3, 1927. Paragraph 4 of this order reads as follows:
All the rights, powers, privileges, or duties in respect of the importation or entry of merchandise into or exportation of merchandise from the United States vested in or imposed upon the Secretary of the Treasury by the Tariff Act of 1922, or any other law, are hereby conferred or imposed upon the Commissioner of Customs. The acts, findings, and decisions of said commissioner, with respect to said matters, shall be final so far as the Treasury Department is concerned unless modified or disapproved by the Secretary of the Treasury: Provided, That the determination’ of countervailing duties under section 303 of the Tariff Act of 1922, and findings of dumping under the Antidumping Act of 1921, and ali amendments to the Customs Regulations shall not be effective unless approved by the Secretary of the Treasury.
*178Evidently the language of the proviso quoted, supra, was a recognition by the Secretary of the Treasury of the construction given the statutes by the Attorney General in the opinion of December 12, 1925, also quoted supra.
Nevertheless, the finding which is at issue in this case is not shown to have been made by the Secretary personally but appears from its text to have been the finding of "Edward Clifford, Assistant Secretary.” It says, “after due investigation I find” (italics mine), and is signed by Mr. Clifford.
I do not think that, it was the intent of Congress under section 201 (a), Antidumping Act of 1921, to authorize the Secretary of the Treasury to delegate the authority conferred upon him to make the ■findings therein provided for, even to an Assistant Secretary, nor do I find in the record, or in any official orders outside the record of which the court would be charged with judicial knowledge, where the Secretary attempted to do so. Neither can I agree with the theory that it was the intent of Congress, either by the Antidumping Act itself or when construing it in connection with other statutes, to confer this authority upon an Assistant Secretary by law, and so authorize him to act independently of the Secretary himself.
I have been unable from my analysis of the Antidumping Act of 1921 to arrive at any conclusion other than that there was conferred upon the Secretary by Congress an authority which called for the exercise of discretion — using that word in the legal sense — and that this distinguishes this case from the cases cited as authorities in the majority opinion, wherein the courts sustained as valid several orders issued by Assistant Secretaries. A close examination of the facts in those cases reveals, it seems to me, that the orders issued in them were purely ministerial or administrative, while the finding in the case at bar goes beyond this, and involves, to say the least of it, an admixture of fact and opinion, and I can not agree that in using the word “secretary” Congress intended it to be construed as generic in character so as to include other officials not specifically named and authorized to act.
To meet the requirements of section 201 (a) it must be found, first, that importations of merchandise are being made, which merchandise “is being sold or is likely to be sold in the United States or elsewhere at less than its fair value,” and, second, that by reason of this importation “an industry in the United States is being, or is lilcely to be injured, or is prevented from being established.” (Italics mine.) Nowhere in the act does Congress give a definition of “fair value,” nor is there in any other customs statute such a definition. Surely, in order to make a finding, there must be somewhere, in the mind of some person, a definite idea as to what constitutes the “fair value” of a given article and Congress not having defined it, the *179duty of determining it devolves upon the Secretary of the Treasury, and, to my mind, the determination of this, as well as other matters contained in the quoted language, calls for the performance of more than a mere administrative or ministerial function.
It is largely because of the nature of the act to be performed that I am of the opinion that the intent of Congress in passing the Anti-dumping Act of 1921 was to have it performed by the Secretary personally, and expressly so provided. It is an act “designed to have the force of law, to be binding upon the public, and to be recognized and enforced by the courts” just as are the regulations referred to in the opinion of the Attorney General as requiring the Secretary’s personal action.
It is legitimate and proper to look to the history of this legislation to aid in construing it and arriving at the intent of Congress by which •this court must be guided. When a bill containing antidumping legislation was reported to the House from the Ways and Means Committee in 1921, it did not have the requirement for findings by the Secretary of the Treasury, but provided another method. After the bill had passed the House, the Senate committee amended this portion of it and the Senate agreed to the amendment which is the exact language of the law, 201 (a). The House concurred in the Senate amendment, and provided for the action to be taken by the “Secretary of the Treasury (hereinafter in this Act called the 'Secretary’).” On a matter so important as I conceive this to be, I can not but feel that if Congress had intended to extend this power to Assistant Secretaries they would have said so' in express words, and I can not reconcile myself to what seems to me to be a writing into •the statute of words which the Congress itself did not insert, directly ■or indirectly.
It is evident from the history of this legislation, as same appears of record, that Congress exercised great care in drafting and considering it. This antidumping law was an innovation in customs legislation. It yet stands as an act to itself, independent of all other customs ‘laws, and is the only one of five titles in the act of which it was a part which does so stand. The other titles have been repealed, modified, or carried into the Tariff Act of 1922. This remains as the •only integral and untouched part of the act of 1921.
I agree with the opinion of the Attorney General, and believing that the Customs Court reached the correct conclusion think that its judgment should be affirmed.