CONCURRING OPINION.
Montgomery, Presiding Judge,concurring: I agree with the conclusion reached in this case by my brother Martin. The importance of the question involved makes it proper that I should state at some length my reasons for concurrence.
' Conceding that the requirement, justifying an appeal by an importer to the Board of General Appraisers, that he shall be dissatisfied with the classification adopted by the collector implies that • such dissatisfaction shall arise out of a reasonable apprehension of injury to the interests of such importer, and that this would exclude a mere captious sentiment of dissatisfaction, I, think it is still true that, as shown both by the opinion of the Board of General Appraisers and by the opinion of Judge Martin, a valid reason may exist why *32an adjudication as to the rate of duty may be a pecuniary advantage to the importer even though the rate which he seeks to have applied is greater than that which is adopted by the collector. As is well said in the opinion of General Appraiser Somerville, in deciding the present case:
We might suppose a case of an importer dealing in goods which have been erroneously classified at a lower rate of duty making large contracts based upon their future sale,” and being subsequently brought to financial ruin by a change in such classification liable to occur by the mutation in office of public officials holding different views.
In the absence of any authoritative determination by the Board of General Appraisers or the courts as to the proper classification of an importation,’ a reliquidation may occur at any time within one year. As a practical proposition, therefore, affecting the pecuniary interest of the importer, it may be of exceeding importance that the correct classification be ascertained by judicial determination, and he may, in a legal sense, be dissatisfied with any other classification. This reasoning presupposes that the decisión of the Board of General Appraisers upon an appeal in a classification case is final and conclusive upon the Government as well as upon the protestant and prevents reliquidatioñ in the same case. That such is the effect of the decision of the board I entertain no doubt. The Board of General Appraisers is in classification cases a judicial tribunal and nothing else. Its decisions are open to review by this court. It is provided in terms by subsection 12 of section 28 that—
Each, of the boards of three general appraisers, or a majority thereof, shall have full power to hear and determine all cases and questions arising therein or assigned thereto.
And by subsection 14 it is provided:
That the decision of the collector as to the rate and amount of duties chargeable upon imported merchandise * * *, shall be final and conclusive against all persons interested therein, unless the owner, importer, consignee, or agent of such merchandise * * *, shall, within fifteen days after but notbefore such ascertainment an'd liquidation of duties * * *, give notice in writing to the collector * * *. Upon such notice and payment the collector shall transmit the invoice and all the papers and exhibits connected therewith to the board of nine general appraisers, for due assignment and determination as hereinbefore provided; such determination shall be final and conclusive upon all persons interested therein, and the record shall be transmitted to the proper collector or person acting as such, who shall liquidate the entry accordingly, except in cases where an application shall be filed in the United States Court of Customs Appeals within the time and in the manner provided for in this act.
This language is plain and unambiguous. In construing another section of the Federal statutes the court, in United States v. Phelps. (17 Blatch., 312; 27 Fed. Cas., No. 16039), considered the words “final and conclusive upon all parties” as broad enough to include the United States. This case was followed upon this point in United States v. Leng (18 Fed. Rep., 15), in the well-considered and able opinion by Judge Brown, in which the distinction is pointed out *33between a provision of tbe statute making action conclusive only upon the owner, importer, etc., by the phrase “persons interested in the goods” and the provision “final and conclusive upon all parties.” It is true the language of this section differs slightly, the language being “it shall be final and conclusive upon all persons interested therein.” But as the collector of customs or the Secretary of the Treasury in his respective official capacity is the other party to the litigation, he is as such person acting in that capacity interested in the result of the litigation. The very language following shows the sense in which the word person is used: “The record shall be transmitted to the proper collector or person acting as such,” showing that in the same clause the word person is referred to as including the official who is representing the Government.
But were this section silent as to the force and effect of the decision, the rule of law which makes conclusive and final the decision of any tribunal to which is committed the duty of determining a question between parties would control, as is clearly pointed out in the opinion in United States v. Leng, supra, and by the opinion of General Appraiser Somerville in the present case. It is inconceivable that, in a case where, by the statute' creating the tribunal, parties in interest are invited to submit to that tribunal for decision the question as to whether an importation is dutiable under a particular paragraph of the tariff law, and that submission is had and a decision rendered after full consideration by the judicial tribunal, the administrative officers of the Government would be permitted thereafter to vacate and set aside at will such action.
It would seem to follow that one whose goods are illegally classified may have just grounds for dissatisfaction, even though the rate of duty be less than the legal rate and that a remedy by appeal to the board may prove a substantial benefit to him as an importer, and when it is considered that this power has been exercised in numerous instances and sustained by the court in at least one case, and the terms of the statute which has received such construction left unchanged in later enactments, the conclusion reached in Judge Martin’s opinion is fully warranted.