DISSENTING OPINION
Gb,aham, Presiding Judge:I am unable to agree with the opinion of the majority in this case. The question which arises here is one of very serious import to the customs service. As I view it, it is, in brief, whether the importer of impure or dangerous drugs or foods may evade the laws which have been provided for the protection of our people and may be permitted to substitute his own methods of attempted compliance therewith.
The appellant imported ergot, a well-known abortifacient drug. The collector estimated duties upon it from a sample taken at the wharf. The goods had been duly imported. United States v. Field & Co., 14 Ct. Cust. Appls. 406, T. D. 42052; Cunard S. S. Co. v. Mellon, 262 U. S. 100. They were not goods which could not, primarily, enter the commerce of the country, but were dutiable under paragraph 37 of the Tariff Act of 1922. They were, at least, only conditionally subject to exclusion from the commerce of the country.
Presumably, under section 11 of the food and drugs act, 34 Stat. 772, quoted in the majority opinion, the Secretary of Agriculture requested samples of this importation to be sent to him. Samples seem to have been sent and the entire shipment of 14 bags was released to the consignee by the collector. I think it a fair presumption to indulge in that a penal bond was then taken by the collector as provided by said section 11. If so, it was under this provision in said section—
The Secretary of the Treasury may deliver to the consignee such goods pending examination and decision in the matter on execution of a penal bond for the amount of the full invoice value of such goods, together with the duty thereon.
*115The section further proceeds—
And on refusal to return such goods for any cause to the custody of the Secretary of the Treasury, when demanded, for the purpose of excluding them from the country, or for any other purpose, said consignee shall forfeit the full amount of the bond. (Italics are mine.)
If the bond must be for the penal sum of invoice value and duty, then the amo ant of duty must be ascertained by the only officer, under the law, who can do so, namely, the collector. That is all he has done here, and it is against his ascertainment of such duty that the importer now protests.
If, as is held by the majority, the remedy of the Government is by suit upon the bond only, then no damages may be ascertained and adjudged by any court until the amount of duty is ascertained; not the initial estimate by the collector, but the formal liquidation and classification.
But the most serious fault I find with the decision of the majority is the conclusion that the importer may establish an exportation of a part of this ergot in some other way than the law provides.
Said section 11 provides that if the Secretary of Agriculture shall find any such foods or drugs to be impure or dangerous, etc. — •
the Secretary of the Treasury shall refuse delivery to the consignee and shall cause the destruction of any goods refused delivery which shall not be exported by the consignee within three months from the date of notice of such refusal under such regulations as the Secretary of the Treasury may prescribe. (Again I have italicized.)
The Secretary of the Treasury has made and promulgated such regulations, which have, as has been often held, the effect of law, if reasonable. Gump v. United States, 3 Ct. Cust. Appls. 137, T. D. 32384; Penick & Ford v. United States, 12 Ct. Cust. Appls. 432, T. D. 40611; Gallagher & Ascher v. United States, 14 Ct. Cust. Appls. 38, T. D. 41548; United States v. Bird, 16 Ct. Cust. Appls. 306, T. D. 42876. No intimation is made here that the said regulations are not reasonable. Such regulations, applicable to the port of entry here, are articles 492 to 502, inclusive, of the Customs Regulations of 1923, promulgated May 27, 1924.
These regulations provide that when samples are required by the Department of Agriculture the request therefor shall be attached to the invoice. Thereupon the collector or appraiser shall notify the importer and the goods are to be held intact until the Department of Agriculture has completed its examination. If the goods fail to comply with the requirements they must be returned to the collector for disposition. Article 494 has this significant provision:
Liquidation of all entries of goods directed to be held pending examination will be suspended until it shall be ascertained whether or not delivery is refused under the law.
*116Entries covering goods which are exported or destroyed under these regulations will be liquidated free of duty as a “nonimportation,” and the estimated duties will be refunded as an excess of deposits.
The folio-wing provisions provide for notice to the importer that the goods mnst be exported or destroyed within three months, and give detailed instructions as to the methods to be followed by both the importer and the customs officials. Reports to the chief of station are provided for after all formalities have been complied with.
After the examination in this case was made by the Department of Agriculture, the importer was, presumably, notified to redeliver the seven bags of ergot to the collector and failed to do so and to comply with said Treasury Regulations. The liquidation, which had been suspended under said regulations, was then' made. The entry could not be reliquidated “free of duty as a ‘nonimportation’,” for the reason that the said regulations had not been complied with in the destruction or exportation of the goods. There was but one thing which the collector could do, if these regulations are to be considered as valid, namely, to liquidate the entry as if the goods were dutiable. He did so, and it is against this liquidation that the instant protest is made. If the goods had been destroyed or exported, “under such regulations as the Secretary of the Treasury may prescribe,” to quote the language of said section 11, the amount of estimated duties would have been, under said article 494, “refunded as an excess of deposits.”
What has been substituted for compliance with these regulations? A report of the appraiser of the port stating that his office was advised by the Department of Agriculture that seven bags of the ergot had been exported and that the Department of Agriculture had “waived the formality required.” On what theory could the Department of Agriculture do this? It was an act ultra vires and did not affect the legal status of the importation.
In addition, a letter from an assistant collector of the port, addressed to the importers, six months after the goods were supposed to have been exported, replying to a letter of the importer which is said to have inclosed certain documents showing that the goods were exported, and in which the assistant collector attempts to waive the requirements of the regulations, is relied upon. Upon what theory could this be done by an assistant collector, or even by the collector himself? The law confers the right to make these regulations upon the Secretary of the Treasury, and the collector had no right to waive them. Bradley Martin, Jr. v. United States, 3 Ct. Cust. Appls. 384, T. D. 32982; Kronfeld, Saunders & Co. v. United States, 4 Ct. Cust. Appls. 60, T. D. 33308; Schelling v. United States, 14 Ct. Cust. Appls. 159, T. D. 41691; United States v. Bird, supra; United States *117v. Ingram & Co., 17 C. C. P. A. (Customs) 228, T. D. 43668; Rosenfield v. United States, 18 C. C. P. A. (Customs) 146, T. D. 44361.
My conclusion is that unless goods of this character are destroyed or exported as provided by the regulations of the Secretary of the Treasury, they are, in law, not destroyed or exported at all, but are supposed to have entered into the commerce of the country. In many cases, I dare say, this will not only be theoretically, but actually, true. Ergot, narcotics, impure foods, come into the country and are released to the importers under bond. Unless they are destroyed or exported as the law requires, if special methods are allowed in special cases, a certain amount of this dangerous material will inevitably filter into the commerce of the country and the safeguards of the law be nullified.
I am of opinion the judgment of the United States Customs Court should be affirmed.