DISSENTING OPINION
Lenroot, Judge:It is with regret that I feel compelled to dissent from the conclusion reached by the majority of the court in this case.. If the Customs Court had jurisdiction in an appeal for reappraisement to detérmine the question of whether the tugboat in question was imported merchandise, bringing it within the customs laws for purposes of duty, I should be in hearty accord with the conclusion of this court upon that question.
I am, however, unable to agree that this question can be raised in an appeal for reappraisement by challenging the jurisdiction of the Customs Court or the jurisdiction of the local appraiser. I readily concede that it is very unfortunate if this appeal can not determine whether the tugboat in question was importable merchandise, but we should apply the law as we find it, and this court has no power to create a jurisdiction which does not exist by law for the purpose of expediting the determination of a controversy.
Preliminary to a discussion of the jurisdiction of the Customs Court to determine in an appeal for reappraisement the question of whether merchandise is imported within the meaning of the customs laws, I would observe that I had supposed that the law was-well settled that when a court finds lack of jurisdiction over the subject matter its only power is to dismiss the proceeding. As early as the case of Ex Parte McCardle, 7 Wall. 506, it was decided that a court can not proceed at all in any cause without jurisdiction, but must announce the fact and dismiss the cause. This I believe has-been the invariable rule in all courts, Federal and State, and if there be lack of jurisdiction in the Customs Court it is the rule that should be followed here.
Furthermore, the Customs Court, appellate term, first division, which rendered the judgments from which these appeals are taken, expressly held that it did have jurisdiction to hear the case, and proceeded to decide it, not upon the theory that it was without jurisdiction, but that it did have jurisdiction, and it held the original appraisement by the local appraiser of the Treasury Department void. Unless it did have jurisdiction to determine the merits of that controversy, that is, the question of whether the tugboat in question was dutiable merchandise, there was no ground upon which it could hold the original appraisement void.
It is my view that the Customs Court had jurisdiction to find the-value of the tugboat in question, but that it did not have jurisdiction, sitting as a reappraisement court, to determine that the tugboat was not dutiable merchandise within the meaning of the customs laws.
*297It is important in this connection to consider the jurisdiction of the Customs Court conferred- by statute, for of course it has no jurisdiction other than that so conferred.
The Customs Court sits in two capacities: (1) As an appraisement •court acting upon appeals from local appraisers; and (2) as a court for hearing and deciding protests against decisions of collectors. The statute provides different rules of procedure for the court in these two capacities. As an appraisement court, section 501 of the Tariff Act of 1922 provides that every appeal from an appraiser -shall be transmitted to the Customs Court and shall be assigned to ■one of the judges of the court “who shall ascertain and return the value oj the merchandise.” He is given no other powers. If dissatisfied with his decision, either of the parties may secure a review ■of such decision by a division of the Customs Court, which shall ■consider the case upon the samples and record made before the single justice, and the division, sitting in this appellate capacity, shall affirm, reverse, or modify his decision, or remand the case for further proceedings. Sitting as a court for hearing and deciding protests against decisions of collectors, a division of the Customs Court, ■consisting of three judges, must act, two of whom must concur in the ■decision. Acting in this capacity, it sits as a court of original juris•diction, while when the division sits as a court of reappraisement it is an appellate court only.
It seems clear that the jurisdiction of the Customs Court must be ■strictly confined to the capacity in which it sits. Any jurisdiction which it possesses over a cause, sitting in one capacity, can not be ■exercised by it, sitting in another capacity, unless specially conferred.
These observations bring us directly to the inquiry of how the ■question of whether the tugboat was dutiable merchandise comes before either the local appraiser or the Customs Court. It must be admitted that nowhere is the determination of that question committed by statute to either the local appraiser or to the Customs •Court in appraisement proceedings, and before either the local appraiser or the Customs Court can determine that question some power must have been delegated to them so to do.
I think it must be conceded that it is the duty of the local appraiser to appraise such property as the collector may order him to appraise. If the collector decides that certain property is merchandise subject to appraisal, the appraiser must accept his decision and proceed to ■appraise it. If the collector is in error in ordering its appraisement, because it is not in fact dutiable merchandise, it may be a finding which may later result in a decision as to the rate and amount of •duty chargeable, or an exaction which under section 514 may be protested and brought before the Customs Court, sitting for hearing and deciding protests against decisions of the collector, but I can not *298conceive bow a decision of tbe collector on that question can be reviewed in an appraisement proceeding.
Tbe brief of appellee in this case treats tbe case as if there bad been an exaction by tbe collector, thus giving jurisdiction to tbe Customs Court to determine whether tbe tugboat was imported merchandise. But there has been no exaction by tbe collector, and if there bad been, tbe Customs Court, sitting in reappraisement, could have no jurisdiction to review it. That could only be done by tbe division bearing and deciding protests made pursuant to tbe provisions of section 514.
I fear that tbe majority of this court, and tbe court below, have not fully considered tbe dual capacity in which tbe Customs Court acts. I think it is well settled that where a court attempts to execute a power not inherent, but specially given by statute, to do a particular thing in a particular way, it can not exercise any power except in tbe mode prescribed by tbe statute. Thatcher v. Powell, 6 Wheat. 119; United States v. Knight’s Administrator, 1 Black. 488; East Tennessee, Virginia & Georgia R. R. Co. v. Southern Telegraph Co. 112 U. S. 306; Hart v. Gray, 6 Fed. Cas. 152; Shelby v. Bacon et al., 10 How. 69.
In the case of De Lima v. Bidwell, 182 U. S. 1, tbe court held that tbe Board of General Appraisers (now tbe Customs Court) bad no jurisdiction where the collector assessed duty on goods not imported. The majority opinion in tbe case at bar impliedly admits that were tbe statutory law to-day tbe same as tbe law under which In re Fassett, 142 U. S. 479, and De Lima v. Bidwell, supra, were decided, tbe Customs Court would have no jurisdiction to determine whether tbe tugboat in question was imported merchandise within tbe meaning of tbe customs laws, but points out that tbe statutory law governing tbe jurisdiction of tbe Customs Court (formerly the Board of General Appraisers) has been materially modified since that time by enlarging such jurisdiction. Tbe opinion. points out tbe modifications which, I assume, are regarded as justifying its bolding that tbe Customs Court, sitting in reappraisement, now has jurisdiction to decide tbe question of tbe importability of merchandise; but I submit that none of tbe modifications so pointed out affect in tbe least degree the jurisdiction of tbe Customs Court sitting in reappraisement. One modification emphasized in tbe majority opinion is tbe addition of tbe words “or upon merchandise on which duty shall have been assessed, ” thus giving tbe court jurisdiction over any goods on which duties have been assessed, whether imported or not. But in this case there has been no duty assessed, so clearly this language does not enlarge the jurisdiction of tbe court so far as tbe case at bar is concerned.
*299The majority opinion quotes with approval an opinion of this court in the case of United States v. Mandel Bros., 7 Ct. Cust. Appls. 476, T. D. 37051. It was there said:
The whole argument urged in support of the claim that the board did not have ' jurisdiction of mail importations was and is based upon the asserted assumption that no entry, such as is required under the customs administrative act, is by law required as to such importations, and that such entry is a prescribed condition to the right of protest and appeal thereunder. Without expressing opinion upon that contention, it is here, sufficient to point out that in this particular the jurisdiction of the board has been materially changed by the Tariff Act of 1913, paragraph N of section 3, by addition of the words “or upon merchandise on which duty shall have been assessed” to the language of the tariff act of 1909, subsection 14 of section 28. Italicizing said newly added words, the contrasted provisions may be more readily shown, the whole as hereinbefore quoted presenting the presently effective law. Undoubtedly this amendment was prompted by the decisions of the Supreme Court of the United States in “the Insular Cases, ” De Lima v. Bidwel, 182 U. S. 1, and Goetze v. United States, 182 U. S. 221, holding that the board had not jurisdiction where the collector assessed duty upon goods not imported. By this provision jurisdiction of the board is extended to all decisions of collectors of customs as to the rate and amount of duties, whether or not imported, and, of course, whether or not legal entry is therefor provided. It is any and every decision of a collector as to the rate and amount of duties, etc., that may be protested and reviewed, and not only such a decision as' to imported or legally entered merchandise or as to goods for which a certain entry is by statute provided. Wherefore, this appeal being from a decision of a collector of customs as to the proper rate and amount of import duty assessed thereupon, jurisdiction of the board attaches without further essential qualification to confer that jurisdiction. ,
Here again is, without question, a correct statement of the law, but it has no application to this case for it relates only to jurisdiction of the Customs Court in protest cases.
The majority opinion further quotes section 514 of the Tariff Act of 1922 for the purpose of showing how the jurisdiction of the Customs Court has been enlarged since the decision in In re Fassett, and De Lima v. Bidwell, supra, all of which is true, but here again there is no application to the case at bar for it clearly appears that such enlarged jurisdiction extends only to the Customs Court when sitting in protest cases. This is not a protest case; had it been, I should have agreed with my brethren on the merits of the controversy.
The majority opinion points out that under the Tariff Act of 1922, in reappraisement matters, the single general appraiser and the Board of General Appraisers (now the single justice and the Customs Court) both exercise purely judicial functions, and the case of Johnson Co. v. United States, 13 Ct. Cust. Appls. 373, T. D. 41318, is quoted from as follows:
If, then, the functions of the single general appraiser and the Board of General Appraisers in reappraisement matters are purely judicial, the ordinary rules applicable to other courts and judicial proceedings will apply except where modified or amended by the statutory law here applicable.
*300I am unable to understand how the language quoted has any application to the case at bar. Surely the majority of this court do not hold that because the functions of the single justice and the Customs Court 'are judicial they have by virtue of that fact any jurisdiction not conferred by statute. I submit that the jurisdiction of that court, a special court,. must be found within the four corners of the statute creating it and laws amendatory thereof.
The cáse of United States v. Central Vermont Railway Co., 17 C. C. P. A. 166, T. D. 43474, is cited in the majority opinion in support of the proposition that in a reappraisement proceeding the dutiability of the tugboat in question may be raised. But that case does not in my judgment have any application to the question here involved. That was a case arising under the Antidumping Act of 1921. Under that act, upon the Secretary of the Treasury making certain orders, specific duties were imposed upon appraisers as to finding certain facts. Section 209 of that act, imposing such duties, reads as follows:
DUTIES OP APPRAISERS
In the case of all imported merchandise, whether dutiable or free of duty, of a class or kind as to which the Secretary has made public a finding as provided in section 201, and as to which the appraiser or person acting as appraiser has made no appraisement report to the collector before such finding has been so made public, it shall be the duty of each appraiser or person acting as appraiser, by all reasonable ways and means to ascertain, estimate, and appraise (any invoice or affidavit thereto or statement of cost of production to the contrary notwithstanding) and report to the collector the foreign market value or the cost of production, as the case may be, the purchase price, and the exporter’s sales price, and any other facts which the Secretary may deem necessary for the purposes of this title.
By section 210 special jurisdiction was conferred upon the general appraisers and Board of General Appraisers, now the Customs Court, to review the acts of appraisers and collectors, acting pursuant to the provisions of the Antidumping Act. That section reads as follows:
APPEALS AND PROTESTS
For the purposes of this title the determination of the appraiser or person acting as appraiser as to the foreign market value or the cost of production, as the case may be, the purchase price, and the exporter’s sales price, and the action of the collector in assessing special dumping duty, shall have the same force and effect and be subject to the same right of appeal and protest, under the same conditions and subject to the same limitations and the general appraisers, the Board of General Appraisers, and the Court of Customs Appeals shall have the same jurisdiction, powers, and duties in connection with such appeals and protests as in the case of appeals and protests relating to customs duties under existing law.
In the case of United States v. Central Vermont Railway Co., supra, it appears from the record in the case, that the appraiser, in addition to finding the value of the merchandise there involved, expressly found, and it is so stated in his appraisement, that a certain order *301of the Secretary of the Treasury, to wit, T. D. 39220, applied to the merchandise there in question, and therefore he proceeded to find the facts, in addition to foreign market value, required by section 209, supra. The question decided by the court, therefore, was not a question of the validity of an appraisement, under Title IV of the Tariff Act of 1922, which is involved in the case at bar, but the validity of certain acts performed by the appraiser under the Anti-dumping Act of 1921, all of which were dependent upon the validity of an order of the Secretary of the Treasury, which the appraiser had expressly found to apply to the merchandise there involved.
Other cases are cited in the opinion in the Central Vermont Railway case which likwise have no application to the case at bar, for the reason that in one the constitutionality of the act under which-the appraiser proceeded was raised, and in the other the question involved was*as to whether the appraiser had been legally appointed.-
Again, attention is called to the fact that the majority opinion does not hold that the tugboat in question was not merchandise, as that word is defined in section 401 of the Tariff Act of 1922, but only that it was not dutiable merchandise.
Section 488 of the Tariff Act of 1922 provides that “The collector within whose district any merchandise is entered shall cause such merchandise to be appraised.”
Section 401 defines the word “merchandise” as follows: “The word ‘merchandise’ means goods, wares, and chattels of every description and includes merchandise, the importation of which is prohibited.” It is to be noted that the direction to the collector to cause appraisement is not limited to dutiable merchandise, or importable merchandise, but to all merchandise which is entered, and that, under section 401, means “goods * * * of every description.”
The majority opinion states:
It certainly was not the intent of the lawmakers that a local appraiser might appraise goods not subject, under the law's, to. appraisement, * * *
And again:
When the reappraisement came before the single justice, it was de novo. He had nothing to do with the appraisement made by the local appraiser. It was his function to appraise, as an-original proposition, oi, if he found the goods not legally subject to appraisement, to so find and hold. [Last italics mine.]
It seems to me that the majority of the court have fallen into the error of assuming that there can be any goods entered at the customhouse that are not subject to appraisement. The statute is all-inclusive and I find no authority for reading into it any exception of goods that are not dutiable or not importable.
I am therefore of the opinion, not only that the question of the . dutiability of the tugboat Berwind can not be raised in a reappraisement proceeding, but that when entered the law expressly required it to be appraised, as was done in the case at bar.
*302The question of dutiability because not provided for in the customs laws has nothing to do with the question of appraisement.
Finally, I would observe that the tugboat in question was entered by appellee at the customhouse at a value of $10,000. The appraiser advanced the value to $30,000. The appeal for reappraisement, signed by appellee, and appearing in the record, is as follows:
As we consider the appraisement made by the United States appraiser too high on one (1) tugboat called the Berwind imported on its own bottom from Habana, Cuba, we have to request that the same may be reappraised, pursuant to the law, with as little delay as your convenience will permit.
The notice of appearance refers to appellee as “importer." The waiver of right to have reappraisement at port of entry, signed by appellee, roads as follows:
I hereby request that the importation of one (1) tugboat called the Berwind on its own bottom, entry No. 3283, June 3, 1927, be reappraised at the office of the Board of United States General Appraisers, 641 Washington Street, New York City, and waive my right to have the reappraisement held at the port of entry, and hereby stipulate that the result of the reappraisement shall not be contested on account of the absence of the merchandise from the place of reap-praisement.
It must be admitted, I think, that had the appellee chosen to continue to regard this tugboat as merchandise, the collector would, on the entry made, properly have assessed it for duty. The dissatisfaction expressed by the appellee was that the appraisement was too high. Therefore, so far as reappraisement is concerned, appellee is now estopped from claiming that the tugboat was not subject to appraisement.
The statute points out the way by which appellee may raise the question of whether the tugboat was imported merchandise. If the collector, when it becomes his duty to classify and assess the property, shall do so in a manner not satisfactory to appellee, it may invoke the jurisdiction of the Customs Court in the way the law provides by protest, but for this court to permit it to raise the question in an appraisement proceeding would, in my opinion, constitute judicial legislation and not judicial interpretation.of the law.
In my opinion the judgment should be reversed and the cause remanded for proper proceedings to determine the value of the tugboat in question.